Sexual Details Not Exempt from Public Disclosure

Koenig v. Des Moines (2006)

The Washington Supreme Court has narrowly construed two exemptions in the state’s Public Disclosure Act. The act’s exemption for information identifying a child victim of sexual assault does not excuse disclosing information which, when connected with information not in the disclosed records, reveals the child’s identity. Also, the act’s exemption for privacy invasions does not permit withholding sexually explicit descriptions.

The case is Koenig v. Des Moines, 2006 WL 2546946 (Aug. 31, 2006).

David Koenig’s daughter suffered sexual assault. He requested the City of Des Moines provide him all records concerning her. The city refused. It relied on a statute exempting from disclosure:

[i]nformation revealing the identity of child victims of sexual assault who are under age eighteen. Identifying information means the child victim’s name, address, location, photograph, and in cases in which the child victim is a relative or stepchild of the alleged perpetrator, identification of the relationship between the child and the alleged perpetrator.

Former Revised Code of Washington 42.17.31901 (now recodified at RCW 42.56.240). Since Koenig had provided his daughter’s name in his request, the city argued that providing any records from her case in response would identify her as a child victim of sexual assault, in violation of this exemption.

The supreme court disagreed. Rather, it ruled, only the identifying information specified in the statute may be withheld. It does not matter whether information elsewhere (in the request for the records, in this case) can be used along with the disclosed records to identify a child victim of sexual assault.

The court also held that sexually explicit descriptive information could not be withheld under the exemption for disclosure of information that “(1) would be highly offensive to a reasonable person, and (2) is not of legitimate concern to the public.” Former RCW 42.17.255 (now recodified at RCW 42.56.050). The parties and the court agreed that the disclosure of sexual detail would be highly offensive to a reasonable person, so the issue was whether it also was not of legitimate concern to the public. The city argued that crime victims would be less likely to contact police if such information were disclosed to the public. The court ruled that the public’s interest in gauging the performance of law enforcement outweighed this potential harm to “the efficient administration of government.”

Public disclosure requests often come from persons with more than an ordinary citizen’s connection to the case. Here, it was the victim’s father. Sometimes it is a prison inmate, seeking records of his or her own prosecution with which to demonstrate that he or she is wrongly imprisoned.