786038MAJ
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78603-8 - Bellevue John Does 1-11 v. Bellevue Sch. Dist. No. 405 File Date 07/31/2008
Supreme Court of the State of Washington

Opinion Information Sheet

Docket Number: 78603-8
Title of Case: Bellevue John Does 1-11 v. Bellevue Sch. Dist. No. 405
File Date: 07/31/2008
Oral Argument Date: 03/22/2007

SOURCE OF APPEAL
----------------
Appeal from King County Superior Court
 03-2-16548-4
 Honorable Douglass A North

JUSTICES
--------
Gerry L. AlexanderSigned Majority
Charles W. JohnsonSigned Dissent
Barbara A. MadsenDissent Author
Richard B. SandersSigned Dissent
Tom ChambersSigned Majorityresult only
Susan OwensSigned Majority
Mary E. FairhurstMajority Author
James M. JohnsonSigned Majority
Debra L. StephensDid Not Participate
Bobbe J. Bridge,
Justice Pro Tem.
Signed Majority

COUNSEL OF RECORD
-----------------

Counsel for Petitioner(s)
 Tyler K. Firkins  
 Van Siclen Stocks & Firkins
 721 45th St Ne
 Auburn, WA, 98002-1303

 Leslie Jean Olson  
 Olson & Olson PLLC
 1601 5th Ave Ste 2200
 Seattle, WA, 98101-1625

 Steve Paul Moen  
 Shafer Moen & Bryan PS
 1325 4th Ave Ste 940
 Seattle, WA, 98101-2509

Counsel for Respondent(s)
 Marshall J. Nelson  
 Davis Wright Tremaine LLP
 1201 3rd Ave Ste 2200
 Seattle, WA, 98101-3045

 Lissa Wolfendale Shook  
 Federal Public Defender
 1601 5th Ave Ste 700
 Seattle, WA, 98101-1642

 Michele Lynn Earl-Hubbard  
 Allied Law Group, LLC
 12354 30th Ave Ne
 Seattle, WA, 98125-5406

 Nigel P Avilez  
 Davis Wright Tremaine LLP
 1201 3rd Ave Ste 2200
 Seattle, WA, 98101-3045

 Michael W Hoge  
 Perkins Coie
 1201 3rd Ave Ste 4800
 Seattle, WA, 98101-3099

 Jeffrey Ganson  
 Dionne & Rorick
 601 Union St Ste 900
 Seattle, WA, 98101-2360

 John Michael Cerqui  
 Seattle Public Schools/ Gen Cnsl Office
 Msc 32-151
 Po Box 34165
 Seattle, WA, 98124-1165

Amicus Curiae on behalf of Allied Daily Newspapers of Washington , Inc.
 Jessica L. Goldman  
 Summit Law Group
 315 5th Ave S Ste 1000
 Seattle, WA, 98104-2682

Amicus Curiae on behalf of Belo Corporation
 Jessica L. Goldman  
 Summit Law Group
 315 5th Ave S Ste 1000
 Seattle, WA, 98104-2682

Amicus Curiae on behalf of Mcclatchy Company
 Jessica L. Goldman  
 Summit Law Group
 315 5th Ave S Ste 1000
 Seattle, WA, 98104-2682

Amicus Curiae on behalf of Washington Newspaper Publishers Association
 Jessica L. Goldman  
 Summit Law Group
 315 5th Ave S Ste 1000
 Seattle, WA, 98104-2682

Amicus Curiae on behalf of Washington Education Association
 Harriet Kay Strasberg  
 Attorney at Law
 3136 Maringo Rd Se
 Olympia, WA, 98501-3428

Amicus Curiae on behalf of Washington Federation of State Employees
 Edward Earl Younglove III  
 Younglove Lyman & Coker PLLC
 Po Box 7846
 Olympia, WA, 98507-7846

Amicus Curiae on behalf of American Civil Liberties Union of Washington
 Douglas B Klunder  
 Attorney at Law
 6940 Parshall Pl Sw
 Seattle, WA, 98136-1969

Amicus Curiae on behalf of Washington St Assn of Broadcasters
 Jessica L. Goldman  
 Summit Law Group
 315 5th Ave S Ste 1000
 Seattle, WA, 98104-2682

Amicus Curiae on behalf of Reporters Committee for Freedom of the Press
 Jessica L. Goldman  
 Summit Law Group
 315 5th Ave S Ste 1000
 Seattle, WA, 98104-2682

Amicus Curiae on behalf of The Daily News
 Jessica L. Goldman  
 Summit Law Group
 315 5th Ave S Ste 1000
 Seattle, WA, 98104-2682

Amicus Curiae on behalf of The Herald
 Jessica L. Goldman  
 Summit Law Group
 315 5th Ave S Ste 1000
 Seattle, WA, 98104-2682

Amicus Curiae on behalf of The News Tribune
 Jessica L. Goldman  
 Summit Law Group
 315 5th Ave S Ste 1000
 Seattle, WA, 98104-2682

Amicus Curiae on behalf of The Olympian
 Jessica L. Goldman  
 Summit Law Group
 315 5th Ave S Ste 1000
 Seattle, WA, 98104-2682

Amicus Curiae on behalf of Pioneer Newspapers , Inc.
 Jessica L. Goldman  
 Summit Law Group
 315 5th Ave S Ste 1000
 Seattle, WA, 98104-2682

Amicus Curiae on behalf of Seattle Post-intelligencer
 Jessica L. Goldman  
 Summit Law Group
 315 5th Ave S Ste 1000
 Seattle, WA, 98104-2682

Amicus Curiae on behalf of The Spokesman-review
 Jessica L. Goldman  
 Summit Law Group
 315 5th Ave S Ste 1000
 Seattle, WA, 98104-2682

Amicus Curiae on behalf of The Stranger
 Jessica L. Goldman  
 Summit Law Group
 315 5th Ave S Ste 1000
 Seattle, WA, 98104-2682

Amicus Curiae on behalf of Tri-city Herald
 Jessica L. Goldman  
 Summit Law Group
 315 5th Ave S Ste 1000
 Seattle, WA, 98104-2682

Amicus Curiae on behalf of The Wenatchee World
 Jessica L. Goldman  
 Summit Law Group
 315 5th Ave S Ste 1000
 Seattle, WA, 98104-2682

Amicus Curiae on behalf of Pacific Northwest Association of Journalism Educators
 Scott A.w. Johnson  
 Stokes Lawrence PS
 800 5th Ave Ste 4000
 Seattle, WA, 98104-3179

 Shelley Marie Hall  
 Stokes Lawrence
 800 5th Ave Ste 4000
 Seattle, WA, 98104-3179

Amicus Curiae on behalf of Seattle Community Council Federation
 Scott A.w. Johnson  
 Stokes Lawrence PS
 800 5th Ave Ste 4000
 Seattle, WA, 98104-3179

 Shelley Marie Hall  
 Stokes Lawrence
 800 5th Ave Ste 4000
 Seattle, WA, 98104-3179

Amicus Curiae on behalf of Center for Justice
 Scott A.w. Johnson  
 Stokes Lawrence PS
 800 5th Ave Ste 4000
 Seattle, WA, 98104-3179

 Shelley Marie Hall  
 Stokes Lawrence
 800 5th Ave Ste 4000
 Seattle, WA, 98104-3179

Amicus Curiae on behalf of Washington Coalition for Open Government
 Judith A. Endejan  
 Graham & Dunn PC
 2801 Alaskan Way Pier 70
 Seattle, WA, 98121-1134
			

IN THE SUPREME COURT OF THE STATE OF WASHINGTON

BELLEVUE JOHN DOES 1-11,                            )
FEDERAL WAY JOHN DOES 1-5 and                       )
JANE DOES 1-2, and SEATTLE JOHN                     )
DOES 1-13, and JOHN DOE,                            )
                                                    )
                             Petitioners,           )
                                                    )      No. 78603-8
v.                                                  )
                                                    )
BELLEVUE SCHOOL DISTRICT #405,                      )      EN BANC
a municipal corporation and a subdivision           )
of the state of Washington, FEDERAL)
WAY SCHOOL DISTRICT #210, a                         )      FILED July 31, 2008
municipal corporation and a subdivision             )
of the state of Washington, and SEATTLE             )
SCHOOL DISTRICT #1, a municipal                     )
corporation and a subdivision of the state          )
of Washington,                                      )
                                                    )
                             Respondents,           )
                                                    )
and                                                 )
                                                    )
SEATTLE TIMES COMPANY,                              )
                                                    )
                      Respondent/Intervenor.        )
___________________________________                 )

       FAIRHURST, J.  ? Fifteen public school teachers seek to  enjoin their 

Bellevue John Does 1-11 v. Bellevue Sch. Dist. No. 405, No. 78603-8

respective school districts from releasing their names in response to a public records 

request by the Seattle Times Company (Times)  for the names of teachers alleged to 

have committed sexual misconduct against students.  Division One of the Court of 

Appeals ordered that the teachers? identities be disclosed unless the allegations of 

misconduct were patently false.  We reverse in part. 

       Sexual abuse of children by school teachers is a terrible atrocity.  Allegations 

of such abuse should be thoroughly investigated by school districts and, if the 

allegations are substantiated, the media may request records containing the identity 

of the perpetrating teacher.  However, when such allegations are determined to be 

unsubstantiated, the identity of the teacher is exempt from disclosure to a public 

records request because such disclosure would violate the teacher?s right to privacy.  

Thus, we  hold  the  identities of public school teachers who are  subjects of 
unsubstantiated1 allegations of sexual misconduct are exempt from disclosure under 

Washington?s public disclosure act (PDA), former chapter 42.17 RCW, amended 
and recodified as chapter 42.56 RCW (Laws of 2005, ch. 274).2  

       1?[U]nsubstantiated? means ?not supported or borne out by fact.?  Webster?s Third New 
International Dictionary 2512 (2002).  
       2The legislature amended and recodified the PDA as the Public Records Act (PRA) in 
2005, moving it from chapter 42.17 RCW to chapter 42.56 RCW, effective July 1, 2006.  Laws of 
2005, ch. 274.  The Times? public disclosure request preceded the PRA, so this opinion refers to 
the PDA.  

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Bellevue John Does 1-11 v. Bellevue Sch. Dist. No. 405, No. 78603-8

       We also hold that letters of direction3 must be released to the public, but 

where a letter simply seeks to guide a teacher?s future conduct, does not identify an 

incident of substantiated misconduct, and the teacher is not subject to any form of 

restriction or discipline, the name of the teacher and other identifying information 

must be redacted.  

       In short, when there is an allegation of sexual misconduct against a public 

school teacher, the identity of the accused teacher may be disclosed to the public 

only if the misconduct is substantiated or the teacher?s conduct results in some form 

of discipline.

                                          I.  FACTS

       In 2002, the Times filed public disclosure requests with the Seattle, Bellevue, 

and Federal Way school districts seeking copies of all records relating to allegations 

of teacher sexual misconduct in the last 10 years.  The school districts notified 55 

current and former teachers that their records were gathered in response to the 

Times? requests.   Thirty-seven of the teachers filed a lawsuit to enjoin the school 

       3A ??letter of direction?? is ?a letter, memorandum or oral direction which does not impose 
punishment, but seeks to guide or direct the employee?s future performance.?     Clerk?s Papers 
(CP) at 112, ¶ 11.  By contrast, a ??letter of reprimand?? constitutes ?a letter or memorandum 
finding that the employee has engaged in significant misconduct and either formally reprimanding 
the employee or imposing restrictions on the employee?s future assignments or duties.? CP at 112-
13, ¶ 11.

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Bellevue John Does 1-11 v. Bellevue Sch. Dist. No. 405, No. 78603-8

districts from releasing their records, arguing that disclosure of records identifying 

them as subjects of sexual misconduct allegations violated their right to privacy.4  

The Times intervened.   

       The trial court  ordered the school districts to disclose the identities of 

teachers whose alleged misconduct was substantiated, resulted in some form of 

discipline, or if the school district?s investigation was inadequate.5                    After 

considering documentary evidence as to each plaintiff, the trial court concluded that 
the identities of 15 of the original plaintiffs were exempt from disclosure,6 while the 

identities of the 22 remaining teachers were disclosable.  The trial court also held 

the ??letters of direction?? were exempt from disclosure because disclosure would 

?interfer[e] with the employer?s ability to give candid advice and direction to its 

employees.? Clerk?s Papers (CP) at 100, ¶ 10.  Three of the teachers whose names 

were ordered to be disclosed appealed (Bellevue John Doe 11, Seattle John Doe 6, 

and Seattle John Doe 9).   The Times cross appealed, seeking the identifying 

information of the 15 prevailing John Does.

       4The school districts released to the Times unredacted records of the teachers who are not 
currently parties to the present lawsuit. 
       5After reviewing the documentary record, the trial court made findings as to the adequacy 
of each of the school districts? investigations. 
       6The Court of Appeals refers to these 15 individuals as the  ?prevailing John Does.?  
Bellevue John Does 1-11 v. Bellevue Sch. Dist. No. 405, 129 Wn. App. 832, 857, 120 P.3d 616 
(2005).

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Bellevue John Does 1-11 v. Bellevue Sch. Dist. No. 405, No. 78603-8

       The Court of Appeals affirmed in part and reversed in part, holding, ?[w]hen 

an  allegation against a teacher is plainly false,[7]          as shown by an adequate 

investigation, that teacher?s name is not a matter of legitimate public concern.?  

Bellevue John Does 1-11 v. Bellevue Sch. Dist. No. 405, 129 Wn. App. 832, 857, 

120 P.3d 616 (2005).  However, the Court of Appeals determined that if an 

allegation is unsubstantiated or determined not to warrant discipline, the identity of 

the accused must be disclosed.  Id. at 838. The Court of Appeals also held letters of 

direction must be disclosed.  Id. at 848-49.  Accordingly, the Court of Appeals 

affirmed nondisclosure as to Seattle John Doe 1, Seattle John Doe 7, and Federal 

Way John Doe 1 (finding these allegations to be patently false), id. at 854-55, but 

reversed the order of nondisclosure with respect to the other prevailing John Does.  

Id. at 855.  

       Twelve of the public school teachers (teacher petitioners) whose names were 

ordered disclosed by the Court of Appeals collectively sought review of that 
decision.8  Seattle John Doe 9 individually sought review.  Bellevue John Doe 11 

and Seattle John Doe 6 separately filed a joint petition for review.  We denied 

       7The Court of Appeals? opinion uses ?patently? or ?plainly? false interchangeably.  We use 
?patently? unless quoting.
       8The 12 teacher petitioners include Bellevue John Does 1, 2, 3, 4, 6, 7, and 9; Federal 
Way John Does 2 and 3; and Seattle John Does 3, 5, and 10.  

                                               5

Bellevue John Does 1-11 v. Bellevue Sch. Dist. No. 405, No. 78603-8

review of the individual issues raised by Seattle John Doe 9, Bellevue John Doe 11, 

and Seattle John Doe 6, and granted review only as to the three issues listed below. 

Bellevue John Does 1-11 v. Bellevue Sch. Dist. No. 405, 158 Wn.2d 1024 (2006).  

                                         II.  ISSUES

       1.     Under the PDA, are the identities of public school teachers who are the 
       subjects of unsubstantiated allegations of sexual misconduct exempt from 
       disclosure?9

       2.     Under the PDA, are letters of direction exempt from disclosure?  

       3.     Is former RCW 42.17.255 (1987),  recodified as  RCW 42.56.050 
       (Laws of 2005, ch. 274, § 103), unconstitutional because it defines privacy 
       more restrictively than the constitutional right to privacy?10

                                      III.  ANALYSIS

A.     Standard of review

       We review decisions under the PDA de novo.  Former RCW 42.17.340(3) 

       9While we framed the first issue in our January 3, 2007 order accepting review as 
?whether allegations of sexual misconduct that remain unsubstantiated are exempt from disclosure 
under the [p]ublic [d]isclosure [a]ct,? the question before us is simply whether the teachers?
names and other identifying information may be released to the public.   Wash. Supreme Court 
Order No. 78603-8 (Jan. 3, 2007).  The school districts have already disclosed numerous records 
documenting the nature of the allegations, types of investigations conducted, and any resulting 
disciplinary actions.  The names of the teachers involved were changed to  ?John Doe?
pseudonyms and other identifying information was redacted.  We must now decide whether the 
identities of teachers who are the subjects of unsubstantiated allegations of sexual misconduct 
should be released under the PDA.  
       10We do not reach teacher petitioners? constitutional challenge as reviewing courts ?should 
not pass on constitutional issues unless absolutely necessary to the determination of the case.?  
State v. Hall, 95 Wn.2d 536, 539, 627 P.2d 101 (1981).  

                                               6

Bellevue John Does 1-11 v. Bellevue Sch. Dist. No. 405, No. 78603-8

(1992), recodified as RCW 42.56.550(3) (Laws of 2005, ch. 483, § 5); Progressive 

Animal Welfare Soc?y v. Univ. of Wash., 125 Wn.2d 243, 252, 884 P.2d 592 

(1994).  Issues of statutory construction are also reviewed de novo.   City of 

Redmond v. Moore, 151 Wn.2d 664, 668, 91 P.3d 875 (2004).  

B.     Nature and purpose of the PDA

       The PDA was enacted by initiative in 1972.  Laws of 1973, ch. 1.  The PDA 
requires state and local agencies to disclose all public records11 upon request, unless 

the record falls within a specific PDA exemption or other statutory exemption.  

Former RCW 42.17.260(1) (1997),  recodified as  RCW 42.56.070(1) (Laws of 

2005, ch. 274, § 284).  If a portion of a public record is exempt, that portion should 

be redacted and the remainder disclosed.  Id. An agency withholding public records 

bears the burden of proving ?that refusal to permit public inspection and copying is 

in accordance with a statute that exempts or prohibits disclosure in whole or in part 

of specific information or records.? Former RCW 42.17.340(1).  

       The policy behind the PDA is to ensure                 ?full access to information 

       11A ??[p]ublic record?? is ?any writing containing information relating to the conduct of 
government . . . prepared, owned, used, or retained by any state or local agency.? Former RCW 
42.17.020(36) (2002), amended as RCW 42.17.020(41) (Laws of 2005, ch. 445, § 6).  Bellevue 
John Doe 11 and Seattle John Doe 6 argue that unsubstantiated or patently false allegations of 
misconduct do not meet the definition of ?public records? because, potentially, no government 
conduct exists.  The absence of misconduct, however, is not necessarily the absence of conduct.  

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Bellevue John Does 1-11 v. Bellevue Sch. Dist. No. 405, No. 78603-8

concerning the conduct of government on every level,? while remaining ?[m]indful 

of the right of individuals to privacy.?     RCW 42.17.010(11).  We have consistently 

construed the PDA as ?a strongly worded mandate for broad disclosure of public 

records.?  Hearst Corp. v. Hoppe, 90 Wn.2d 123, 127, 580 P.2d 246 (1978).  Thus, 

the PDA?s disclosure provisions are liberally construed and its exemptions are 

narrowly construed.  Former RCW 42.17.251 (1992), amended and recodified as 

RCW 42.56.030 (Laws of 2005, ch. 274, §§ 103, 283); see also Koenig v. City of 

Des Moines, 158 Wn.2d 173, 180, 142 P.3d 162 (2006).  

C.     Where a public school teacher is the subject of an unsubstantiated allegation 
       of sexual misconduct, disclosure of his or her identity violates the teacher?s 
       right to privacy under former RCW 42.17.255

       The PDA exempts from disclosure ?[p]ersonal information in files maintained 

for employees, appointees, or elected officials of any public agency to the extent 

that disclosure would violate their right to privacy.?       Former RCW 42.17.310(1)(b) 

(2002), amended and recodified as RCW 42.56.230(2) (Laws of 2005, ch. 274, §

403).  To determine whether the  identities of teachers who are the subjects of 

unsubstantiated allegations of sexual misconduct fall within this exemption, we must 

decide (1) whether the allegations constitute personal information, (2) whether the 

teachers have a right to privacy in their identities, and (3) whether disclosure of the 

                                               8

Bellevue John Does 1-11 v. Bellevue Sch. Dist. No. 405, No. 78603-8

teachers? identities would violate their right to privacy. 

                                               9

Bellevue John Does 1-11 v. Bellevue Sch. Dist. No. 405, No. 78603-8

       1.     Allegations of sexual misconduct against a teacher constitute personal
              information under former RCW 42.17.310(1)(b) 

       ?[I]n determining the meaning of a statute enacted through the initiative 

process, the court?s purpose is to ascertain the collective intent of the voters who, 

acting in their legislative capacity, enacted the measure.?  Amalgamated Transit 

Union Local 587 v. State, 142 Wn.2d 183, 205, 11 P.3d 762, 27 P.3d 608 (2001).  

?Where the language of an initiative enactment is ?plain, unambiguous, and well 

understood according to its natural and ordinary sense and meaning, the enactment 

is not subject to judicial interpretation.??  Id. (quoting State v. Thorne, 129 Wn.2d 

736, 762-63, 921 P.2d 514 (1996)).  ??In construing the meaning of an initiative, the 

language of the enactment is to be read as the average informed lay voter would 

read it.??  State v. Brown, 139 Wn.2d 20, 28, 983 P.2d 608 (1999) (quoting W. 

Petroleum Imps., Inc. v. Friedt, 127 Wn.2d 420, 424, 899 P.2d 792 (1995)).

       The PDA does not define ?personal information.?  ?[P]ersonal? is ordinarily 

defined as ?of or relating to a particular person : affecting one individual or each of 

many individuals : peculiar or proper to private concerns : not public or general.?  

Webster?s Third New International Dictionary  1686 (2002).  Thus, information 

relating to or affecting a particular individual, information associated with private 

concerns, or information that is not public or general                  constitutes personal 

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Bellevue John Does 1-11 v. Bellevue Sch. Dist. No. 405, No. 78603-8

information under former RCW 42.17.310(1)(b).12

       At issue in this case are two types of information: (1) the identities of the 

teachers who are the subjects of the allegations and (2) letters of direction.  The 

teachers?   identities are clearly  ?personal information?          because they  relate to 

particular people.  As for the letters of direction, we previously held that employee 

evaluations constitute personal information within the meaning of former RCW 

42.17.310(1)(b).  Dawson v. Daly, 120 Wn.2d 782, 797, 845 P.2d 995 (1993), 

abrogated in part by Soter v. Cowles Publ?g Co., 162 Wn.2d 716, 174 P.3d 60

(2007).   We noted, ?[e]mployee evaluations qualify as personal information that 

bears on the competence of the subject employees.?  Id.

       Likewise, the  letters of direction  contain information regarding the school 

districts? criticisms and observations of the Doe employees  that relate to  their 

competence as education professionals.  We hold  letters of direction constitute 

??[p]ersonal information?? within the meaning of former RCW 42.17.310(1)(b).  

       12This definition is similar to the definition of  ?personal information? found in other
jurisdictions? public disclosure statutes.  See, e.g., Alaska Stat. 40.25.350(2) (2006) (?information 
that can be used to identify a person and from which judgments can be made about a person?s 
character, habits, avocations, finances, occupation, general reputation, credit, health, or other 
personal characteristics?);  Cal. Civ. Code 1798.3(a) (West 2005)  (?any information that is 
maintained by an agency that identifies or describes an individual, including, but not limited to, his 
or her name, social security number, physical description, home address, home telephone number, 
education, financial matters, and medical or employment history?); Jordan v. Motor Vehicle Div., 
308 Or. 433, 441, 781 P.2d 1203 (1989) (?information specific to one individual?). 

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Bellevue John Does 1-11 v. Bellevue Sch. Dist. No. 405, No. 78603-8

       Because the identities of public school teachers alleged to have committed 

sexual misconduct is personal information under the PDA, we now turn to whether 

the teachers have a right to privacy in such personal information.              The letters of 

direction are addressed separately in a subsequent section. 

       2.     Teachers who are the subjects of unsubstantiated allegations of sexual 
              misconduct have a right to privacy in their identities 

       Personal information is exempt from disclosure only to the extent disclosure 

violates an employee?s right to privacy.  Former RCW 42.17.310(1)(b).  The PDA 

sets forth a test for determining when the right to privacy is violated, former RCW 

42.17.255 (1987), but does not explicitly identify when the right to privacy in 

question exists.  In enacting former RCW 42.17.255, the legislature stated that the 

term ?privacy? ?is intended to have the same meaning as the definition given that 

word by the Supreme Court in ?Hearst v. Hoppe.??  Laws of 1987, ch. 403, § 1. 

       In  Hearst, we defined  ?right to privacy? in the context of former RCW 

42.17.310(1)(c) by looking to the common law tort of invasion of privacy by public 

disclosure of private facts.  90 Wn.2d  at 135.             We adopted the definition of 

?invasion of privacy? as provided in Restatement (Second) of Torts § 652D (1977) 

(§ 652D) which reads,  ??[o]ne who gives publicity to a matter concerning the 

private life of another is subject to liability to the other for invasion of privacy, if the 

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Bellevue John Does 1-11 v. Bellevue Sch. Dist. No. 405, No. 78603-8

matter publicized is of a kind that (a) would be highly offensive to a reasonable 

person and (b) is not of legitimate concern to the public.??  Hearst, 90 Wn.2d. at 

135-36 (quoting § 652D).

       A person has a right to privacy in ??matter[s] concerning the private life.??  

Id. at 135 (quoting § 652D).  One of the comments to § 652D illustrates the nature

of facts that could be considered matters concerning the private life. 

              ?Every individual has some phases of his life and his activities 
       and some facts about himself that he does not expose to the public eye, 
       but keeps entirely to himself or at most reveals only to his family or to 
       close personal friends.  Sexual relations, for example, are normally 
       entirely private matters, as are family quarrels, many unpleasant or 
       disgraceful or humiliating illnesses, most intimate personal letters, most 
       details of a man?s life in his home, and some of his past history that he 
       would rather forget.  When these intimate details of his life are spread 
       before the public gaze in a manner highly offensive to the ordinary 
       reasonable man, there is an actionable invasion of his privacy, unless 
       the matter is one of legitimate public interest.?
Id. at 136 (quoting § 652D cmt. b).13  

       13The Times asserts that ?the conduct of public employees on the job is not a private 
matter under any formulation of privacy? because it does not ?relate[] to ?the intimate details of 
one?s personal and private life.?? Suppl. Br. of Resp?t Times at 2-3 (quoting Spokane Police 
Guild v. Liquor Control Bd., 112 Wn.2d 30, 38, 769 P.2d 283 (1989)).  Former RCW 42.17.255 
does not state or imply that the right to privacy is limited to the intimate details of one?s personal 
and private life.  Our case law is divided as to whether the privacy provision of the PDA pertains 
only to intimate details of one?s personal and private life.  Compare Koenig, 158 Wn.2d at 185, 
and Brouillet v. Cowles Publ?g Co., 114 Wn.2d 788, 797-98, 791 P.2d 526 (1990), and Brown v. 
Seattle Pub. Schs., 71 Wn. App. 613, 860 P.2d 1059 (1993), with Dawson, 120 Wn.2d at 797, 
and Spokane Police Guild, 112 Wn.2d at 39, and Cowles Publ?g Co. v. State Patrol, 109 Wn.2d 
712, 748 P.2d 597 (1988) (plurality opinion).

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Bellevue John Does 1-11 v. Bellevue Sch. Dist. No. 405, No. 78603-8

       A public employee has a right to privacy in some information within a 

personnel file, but the scope of this right is unclear.  In Cowles Publishing Co. v. 

State Patrol, 109 Wn.2d 712, 727, 748 P.2d 597 (1988) (plurality opinion), we held 

a police officer?s right to privacy is not violated when a complaint about a specific 

instance of misconduct, substantiated after an internal investigation, is disclosed.  

We stated, ?[i]nstances of misconduct of a police officer while on the job are not 

private, intimate, personal details of the officer?s life? because the misconduct 
?occurred in the course of public service.?14   Id.  at 726.  Yet, we  also  noted, 

?complaints which were later dismissed[] would constitute a more intrusive invasion 

of privacy.? Id. at 725.   

       In Brouillet v. Cowles Publishing Co., 114 Wn.2d 788, 797-98, 791 P.2d 526 

(1990), we held records specifying the reasons for revoking a teacher?s certification

must be disclosed, but we did not indicate whether such records were protected by 

       14In Columbian Publishing Co. v. City of Vancouver, 36 Wn. App. 25, 27, 671 P.2d 280 
(1983),  an association of police officers voted no confidence in their police chief and then issued 
a press release noting their general concerns.  The officers then provided specific complaints to 
the city.   Id. The Court of Appeals determined the complaints dealt with the police chief?s 
performance of his public duties and, hence, the chief did not have a right to privacy in such 
statements.  Id. at 30.  The complaining officers were deemed to have waived any right to privacy 
in their complaints by making the initial press release.  Id.

                                               14

Bellevue John Does 1-11 v. Bellevue Sch. Dist. No. 405, No. 78603-8

the right to privacy.  Instead, we cited the two-prong test of former RCW 42.17.255 

as the definition of privacy.  Id.  We then concluded the records were of legitimate 

public interest because they contained  ?information about the extent of  known 

sexual misconduct in the schools.?   Id.  at 798 (emphasis added).  We did not 

address whether teachers have a right to privacy in unsubstantiated allegations of 

sexual misconduct.  

       In  Dawson, we held disclosure of a deputy prosecutor?s performance 
evaluation violated the prosecutor?s right to privacy.15           120 Wn.2d at 800.  We 

noted, ?[s]peaking generally about the right of privacy, we have stated that the right 

of privacy applies ?only to the intimate details of one?s personal and private life.??  

Id.  at 796.  We then determined an employee evaluation contains personal 

information and applied the test of former RCW 42.17.255 without making the 

threshold determination of whether the prosecutor had a right to privacy in the 

evaluation.  Id. at 797-98.  We concluded disclosure of a performance evaluation 

would violate the prosecutor?s right to privacy because it would be highly offensive 

       15Prior to  Dawson, the Court of Appeals held school district employees? performance 
evaluations and work records could be disclosed as long as the employees? names were redacted.  
Ollie v. Highland Sch. Dist. No. 203, 50 Wn. App. 639, 645, 749 P.2d 757 (1988).   After
Dawson,  the Court of Appeals held the disclosure of documents relating to performance 
evaluations and documents containing general concerns about a principal?s performance violated 
the principal?s right to privacy.  Brown, 71 Wn. App. at 619.  

                                               15

Bellevue John Does 1-11 v. Bellevue Sch. Dist. No. 405, No. 78603-8

and the public does not have a legitimate concern in such information.16  Id. at 796-

98.

       In short, we previously determined that when a complaint regarding 

misconduct during the course of public employment is substantiated or results in 

some sort of discipline, an employee does not have a right to privacy  in the 

complaint.  We have also held performance evaluations are protected by the right of 

privacy.  The remaining issue is whether a person has a right to privacy in false or 

unsubstantiated allegations of misconduct.  

       An unsubstantiated or false accusation of sexual misconduct is not an action 

taken by an employee in the course of performing public duties and, thus, the 

accusation does not fall within the same category as  Cowles.  Nor have these 

accusations resulted in any form of discipline, such as the revocation of a teaching 

       16In determining whether disclosure of a      performance evaluation would be highly 
offensive, we looked to other jurisdictions.  Dawson, 120 Wn.2d at 796-97.  Contrary to the 
dissent?s assertion, dissent at 7 n.3, we did not identify which items within a personnel file would 
be protected by the right of privacy.   We noted that an employment record would contain 
??references to family problems, health problems, past and present employers? criticism and 
observations, military records, scores from IQ [intelligence quotient] tests and performance tests . 
. . and other matters, many of which most individuals would not willingly disclose publicly.??  
Dawson, 120 Wn.2d at 797 (second alteration in original) (internal quotation marks omitted) 
(quoting  Missoulian v. Bd. of  Regents, 207 Mont. 513, 524, 675 P.2d 962 (1984)).  Thus, 
contrary to the dissent?s characterizations,  Dawson did not limit its reasoning to ?information 
obtained during employee evaluations,? dissent at 9.  120 Wn.2d at 797.   Information found 
within an employment record may be protected by the right of privacy regardless of whether it is 
obtained during or used for an employee evaluation. 

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Bellevue John Does 1-11 v. Bellevue Sch. Dist. No. 405, No. 78603-8

certificate in Brouillet.  The fact of the allegation, not the underlying conduct, does 

not bear on the teacher?s performance or activities as a public servant.17           The mere 

fact of the allegation of sexual misconduct toward a minor may hold the teacher up 

to hatred and ridicule in the community, without any evidence that such misconduct 

ever occurred.  The fact that a teacher is accused of sexual misconduct is a ?matter 

concerning the private life? within the Hearst definition of the scope of the right to 

privacy.  Hearst, 90 Wn.2d at 135.  Thus, we hold the teachers have a right to 

privacy in their identities because the unsubstantiated or false allegations are matters 

concerning the teachers? private lives and are not specific incidents of misconduct 

during the course of employment.

       3.     Disclosure of unsubstantiated allegations of sexual misconduct 
              violates a teacher?s right to privacy under former RCW 
              42.17.310(1)(b)

       ?A person?s ?right to privacy?? is ?violated only if disclosure of information 

about the person: (1) Would be highly offensive to a reasonable person, and (2) is 

not of legitimate concern to the public.? Former RCW 42.17.255.

              a.      Disclosure of the identities of teachers who are the subjects of 

       17Contrary to the dissent?s reasoning, dissent at 10, Cowles does not control our analysis 
of whether an unsubstantiated allegation bears on a teacher?s performance.  Cowles dealt solely 
with  complaints against law enforcement officers sustained  ?after internal investigations 
conducted by their respective law enforcement agencies.? 109 Wn. App. at 713.    The complaints 
in Cowles were substantiated and, thus, represented actions taken by employees in the course of 
performing their public duties.  

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Bellevue John Does 1-11 v. Bellevue Sch. Dist. No. 405, No. 78603-8

                      unsubstantiated allegations of sexual misconduct is highly 
                      offensive 

       It is undisputed that disclosure of the identity of a teacher accused of sexual 

misconduct is highly offensive to a reasonable person.18  See Dawson, 120 Wn.2d at 

796 (holding disclosure of performance evaluations  that do not discuss specific 

instances of misconduct are presumed to be highly offensive); City of Tacoma v. 

Tacoma News, Inc., 65 Wn. App. 140, 145, 827 P.2d 1094 (1992) (noting that it is 

undisputed that disclosure of unsubstantiated allegations of child abuse is highly 

offensive to a reasonable person).  Having concluded that disclosure of the identities 

of teachers accused of sexual misconduct is highly offensive to a reasonable person, 

our next step is to determine whether the identities are of legitimate public concern.

              b.      The public does not have a legitimate concern in the identities 
                      of teachers who are the subjects of unsubstantiated allegations 
                      of sexual misconduct

       The second question is whether the identities of teachers who are the subjects 

of unsubstantiated allegations of sexual misconduct are a matter of legitimate public 

concern.   ??[L]egitimate?? means  ??reasonable.??   Dawson,  120 Wn.2d at 798.  

?[O]ne factor bearing on whether information is of legitimate concern to the public 

       18Contrary to the trial court?s reasoning, the offensive nature of disclosure does not vary 
depending on whether the allegation is substantiated or unsubstantiated.  The offensiveness of 
disclosure is implicit in the nature of an allegation of sexual misconduct.

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Bellevue John Does 1-11 v. Bellevue Sch. Dist. No. 405, No. 78603-8

is whether the information is true or false.?  Tacoma News, 65 Wn. App. at 148.  

Generally, ?the public as a rule has no legitimate interest in finding out the names of 

people who have been falsely accused.?  Bellevue John Does, 129 Wn. App. at 853; 

Tacoma News, 65 Wn. App. at 148.  

       The trial court looked at whether the allegations were substantiated to 

determine whether there was a legitimate public interest in the records, believing the 
public lacks a legitimate concern in unsubstantiated allegations.19             The Court of 

Appeals disagreed with the trial court?s analysis, concluding the public has a 

legitimate concern in knowing the names of teachers who are the subjects of 

unsubstantiated allegations, but not patently false claims.  Bellevue John Does, 129 

Wn. App. at 855-57.  The Court of Appeals reasoned the public has a legitimate 

concern in the identities of teachers who are the subjects of unsubstantiated 

allegations because 

       ?unsubstantiated? often means only that an investigator, faced with 
       conflicting accounts, is unable to reach a firm conclusion about what 
       really happened and who is telling the truth.  Especially when the 
       conduct reported is a fleeting touch, a comment seemingly off-color or 

       19As will subsequently be discussed, when  allegations of sexual misconduct are 
unsubstantiated, the public may have a legitimate concern in the nature of the allegation and the 
response of the school system to the allegation.  In this case, the school districts provided the 
Times with ?numerous records documenting the nature of the allegation in each case, the grade 
level, the type of investigation conducted, and any disciplinary action taken.  But the names of the 
teachers were changed to  ?John Doe? pseudonyms, and other identifying information was 
redacted.?  Bellevue John Does, 129 Wn. App. at 841.  Because these portions of the records are 
not at issue, we do not address whether there is a legitimate public concern in such records.

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Bellevue John Does 1-11 v. Bellevue Sch. Dist. No. 405, No. 78603-8

       directed at a student?s physical appearance, or a habit of writing 
       personal notes, it is possible that the accuser misunderstood the words, 
       misinterpreted the intent, or even fabricated the entire event.  But it is 
       also possible that the accuser was accurately reporting inappropriate 
       conduct. Where that possibility exists, the public has a legitimate 
       interest in knowing the name of the accused teacher.

Id. at 856.

       As a preliminary matter, we choose to address whether the public has a 

legitimate concern in the identities of teachers who are the subjects of 

unsubstantiated claims of sexual misconduct rather than patently false claims.  

Making a distinction between ?unsubstantiated? and ?patently false? is vague and 

impractical.  Placing the burden on agencies and courts to determine whether 

allegations are patently false rather than simply unsubstantiated is unworkable, time 

consuming, and, absent specific rules and guidelines, likely to lead to radically 

different methods and conclusions.  For example, in this case the Court of Appeals 

gave little guidance to agencies and courts as to when an allegation should be 

deemed ?false? as opposed to ?unsubstantiated?; instead, the court embarked on its 

own fact-finding inquiry and made these determinations itself, ultimately concluding 

the allegations against Federal Way John Doe 1, Seattle John Doe 1, and Seattle 

John Doe 7 were ?patently false,? and, therefore, the identities of those teachers 

were exempt from disclosure.  Id. at 857.

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Bellevue John Does 1-11 v. Bellevue Sch. Dist. No. 405, No. 78603-8

       The trial court?s rule that the identities of teachers who are subjects of 

unsubstantiated allegations  (which would, of course, include patently false

allegations)  should remain undisclosed is a clearer, more feasible solution.  

Moreover, the legislature already distinguishes between substantiated and 

unsubstantiated allegations of sexual misconduct in schools.  When a current or 

former school employee applies for a job in a new school district, the former school 

district employer must provide the new school district with all of the information 

related to sexual misconduct in the applicant?s personnel record.  RCW 

28A.400.301(4).  Sexual misconduct is defined for purposes of RCW 28A.400.301 

to only include instances where ?the school district has made a determination that 

there is sufficient information to conclude that the abuse or misconduct occurred and 

that the abuse or misconduct resulted in the employee?s leaving his or her position at 

the school district.?   RCW 28A.400.301(11); WAC 181-88-060 (?For purposes of 

this section, sexual misconduct occurs only when a school district determines it has 

sufficient information to conclude that an employee engaged in the sexual 

misconduct.?).  If the legislature did not require release of unsubstantiated claims 

between school districts, it is difficult to imagine that the legislature intended public 

disclosure of the same.

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Bellevue John Does 1-11 v. Bellevue Sch. Dist. No. 405, No. 78603-8

       We now turn to whether the public has a legitimate concern in the identities 

of teachers who are the subjects of unsubstantiated allegations of sexual 

misconduct. The Times argues that regardless of the outcome of an investigation, 

the names of teachers who are alleged to have committed sexual misconduct are of 

legitimate public concern under our decision in Brouillet, 114 Wn.2d 788.   See 

Suppl. Br. of Resp?t Times at 13.  In Brouillet, we held records specifying the 

reasons for the revocation of teacher certificates should be disclosed pursuant to a 

proper PDA request.  114 Wn.2d at 790.  We opined,

       [s]exual abuse of students is a proper matter of public concern because 
       the public must decide what can be done about it.  The public requires 
       information about the extent of  known sexual misconduct                  in the 
       schools, its nature, and the way the school system responds in order to 
       address the problem.

Id.  at 798 (emphasis added).20          However,  Brouillet  did not address whether 

unsubstantiated allegations, rather than known sexual misconduct, were a matter of 

legitimate public concern and it is not dispositive of the issue in this case.

       Next, we turn to the Times? argument that the public has a legitimate concern 

in monitoring the school districts? investigations of allegations of sexual misconduct 

and the identity of the accused is imperative to the effectiveness of such monitoring.  

       20In Brouillet, there was no dispute between the parties as to whether the public had a 
legitimate concern in the reasons for revoking a teacher?s certificate.  114 Wn.2d at 798.

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Bellevue John Does 1-11 v. Bellevue Sch. Dist. No. 405, No. 78603-8

The trial court determined that while the public has a legitimate concern in school 

district investigations of allegations of sexual misconduct, the public does not have a 

legitimate concern in the identities of teachers who are the subjects of 

unsubstantiated allegations because their identities do              not aid the public in 

overseeing the government?s response to the allegations.  In contrast, the Court of 

Appeals determined that the public has a legitimate concern in the identities of 

teachers whose allegations are deemed unsubstantiated because a pattern of 

unsubstantiated complaints against a single teacher is indicative of the truthfulness 
of such allegations.21

       Precluding disclosure of the identities of teachers who are subjects of 

unsubstantiated allegations will not impede the public?s ability to oversee school 

districts? investigations    of alleged teacher misconduct.   As noted by amicus 

American Civil Liberties Union of Washington (ACLU-WA), ?[t]he identity of the 

       21The Times and the Court of Appeals contend that a teacher?s identity must be disclosed 
even if the allegations are unsubstantiated because if a teacher?s record includes several 
unsubstantiated complaints,  ?the pattern is more troubling than each individual complaint.?  
Bellevue John Does, 129 Wn. App. at 856.  However, if teachers? identities are replaced with 
pseudonyms, members of the public will still be able to track and determine whether a certain 
teacher is the subject of numerous unsubstantiated allegations.  Amicus Washington Education 
Association (WEA) suggests, ?[a]t the time of an in camera review, a trial court could fashion a 
remedy for this potential problem by requiring the use of the same numerical identifier for a John 
Doe who may be accused of multiple unsubstantiated allegations.? Suppl. Br. of Amicus WEA at 
7 n.2.  The legislature could fashion such a tracking system to allow for public oversight while 
protecting individual teachers? privacy rights. 

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Bellevue John Does 1-11 v. Bellevue Sch. Dist. No. 405, No. 78603-8

accused . . . is unnecessary, and plays little role in the public?s oversight of the 

investigation.    The name is most relevant to public oversight  if  the misconduct 

occurred?if the misconduct didn?t occur, the only actual governmental action is the 

investigation.? Amicus Curiae Br. of ACLU-WA at 6 (Br. of ACLU-WA).  Amicus 

Washington Education Association (WEA) agrees, adding,  ?there simply is no 

legitimate public concern in the name of the accused unless there is a finding of 

wrongdoing.  The alternative is too damaging to a person?s career . . . without a 

corresponding public benefit.? Suppl. Br. of Amicus Curiae WEA in Supp. of Pet?rs 

at 4 (Br. of WEA).  

       When an allegation is unsubstantiated, the teacher?s identity is not a matter of 

legitimate public concern.  In essence, disclosure of the identities of teachers who 

are the subject of unsubstantiated allegations ?serve[s] no interest other than gossip 

and sensation.?   Bellevue John Does, 129 Wn.  App. at 854.   The public can 

continue to access documents concerning the nature of the allegations and reports 

related to the investigation and its outcome, all of which will allow concerned 

citizens to oversee the effectiveness of the school districts?              responses.   The 

identities of the accused teachers will simply be redacted to protect their privacy 

interests.  See former RCW 42.17.260(1) (providing that agencies may delete names 

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Bellevue John Does 1-11 v. Bellevue Sch. Dist. No. 405, No. 78603-8

and other identifying information from records if such deletions are ?required to 

prevent an unreasonable invasion of personal privacy?).

       Finally, we consider whether the quality of a school district?s investigation 

should determine whether an individual?s right to privacy is violated.  The trial court 

determined that if an investigation is inadequate, the identity of the accused teacher 

is a matter of legitimate public concern.  This rule fails to  adequately protect 

teachers? privacy rights and incorrectly presumes that the presence of an allegation 
is indicative of increased likelihood of misconduct.22  ?[W]hether or not there was 

an adequate investigation should not, as a policy matter, determine the accused?s 

right to privacy because the accused has no control over the adequacy of the 

investigation.?    Br. of WEA at 13-14.   Furthermore,  the trial court?s  rule is 

inconsistent with the intent of the PDA and our determination that the identities of 

teachers accused of sexual misconduct should be released only if a school district 

has found the allegations to be substantiated.             Finally,  a rule that necessarily 

involves a court?s examination of the quality of a school district?s investigation is 

neither clear nor easily applied.23  

       22Importantly, teacher petitioners remind us that  ?[a]n allegation is not a fact, and no 
matter how many false or unsubstantiated allegations might be coupled together, they are 
nonetheless just allegations.? Suppl. Br. of Bellevue John Does at 16.
       23Respondent Federal Way School District (FWSD) aptly observes,
       the approach that [the trial judge] . . . eventually adopted?which is in many cases 

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Bellevue John Does 1-11 v. Bellevue Sch. Dist. No. 405, No. 78603-8

       The Times worries that withholding the identities of teachers who are the 

subjects of inadequate investigations may allow school districts to get away with 

less than acceptable investigations and permit teachers (whose reputations have not 

been cleared by thorough investigations) to avoid public scrutiny of their alleged 

misconduct.24      But the problem of  inadequate investigations             and the desired 

standards for such investigations are entirely separate issues.  Under our holding, 

the public can access  documents related to the allegations and investigations 

(subject to redactions), thus maintaining the citizens? ability to inform themselves 

about school district operations.

       Furthermore, other provisions of the PDA make it unlikely that an agency will 

routinely make self-serving determinations of whether a public record must be 

disclosed.  A requester may challenge the agency?s decision, which is reviewed de 

       dependent upon a determination of the adequacy of each investigation of 
       misconduct?would not produce the kind of clear rule that public entities would be 
       able to apply with confidence in future cases.  To the extent such unpredictable 
       ?if not entirely subjective?rules can be avoided, FWSD urges the Court to do 
       so. 
Br. of Resp?t FWSD at 5 (citation omitted).
       24The dissent argues school districts are unlikely to conduct adequate investigations of 
allegations of sexual misconduct because of the threat of potential lawsuits.  Dissent at 11-12.  
The dissent fails to recognize that a school district may be held liable for failing to adequately 
investigate such a complaint and continuing to employ a teacher.  Peck v. Sian, 65 Wn. App. 285, 
288-92, 827 P.2d 1108 (1992) (discussing grounds for negligent retention of a teacher);  see 
Christensen v. Royal Sch. Dist. No. 160, 156 Wn.2d 62, 76, 124 P.3d 283 (2005) (Madsen, J., 
concurring in part, dissenting in part) (a district has a duty to investigate allegations of sexual 
abuse as part of its supervisory duty).

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Bellevue John Does 1-11 v. Bellevue Sch. Dist. No. 405, No. 78603-8

novo, and significant penalties and attorney fees may be imposed if the agency fails 

to comply with the PDA.  For the reasons stated above, the identities of teachers 

who are subjects of unsubstantiated complaints should not be disclosed, regardless 

of the quality of the investigation.

       Thus, we hold that the public lacks a legitimate interest in the identities of 

teachers who are the subjects of unsubstantiated allegations of sexual misconduct 

because the teachers? identities do not aid in effective government oversight by the 

public and the teachers? right to privacy does not depend on the quality of the school 

districts? investigations.    

D.     A letter of direction is not exempt from disclosure under the PDA, but where 
       a letter does not identify substantiated misconduct and the teacher is not 
       subject to any form of discipline or restriction, the teacher?s name and other 
       identifying information must be redacted  

       Having already established that a letter of direction is personal information, 

we now turn to whether a teacher has a right to privacy in a letter of direction.  In 

Dawson, we assumed a prosecutor had a right to privacy in his or her performance 

evaluations.  See 120 Wn.2d at 796-99.  We see no reason to depart from this 

precedent.  Teachers have a right to  privacy in the letters of direction in their 

personnel files.  Thus, we turn to whether disclosure of the letters of direction 

violates the teachers? right to privacy.

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Bellevue John Does 1-11 v. Bellevue Sch. Dist. No. 405, No. 78603-8

       1.     Disclosure of an unredacted letter of direction is highly offensive if 
              the letter does not identify substantiated misconduct and the teacher is 
              not subject to any form of discipline or restriction

       In Dawson, we held ?that disclosure of performance evaluations, which do 

not discuss specific instances of misconduct, is presumed to be highly offensive.?  

Id. at 797.  We went on to note that such disclosure may not be highly offensive if 

information that would identify a specific employee was redacted.  Id.  In Cowles, 

we noted that disclosure of complaints against law enforcement officers that were 

later dismissed was more offensive than complaints that resulted in some discipline.  

109 Wn.2d at 725.

       In this case, the letters of direction discuss specific alleged misconduct but do 

not mention any substantiated misconduct by the teachers.  Following our analysis 

above  regarding disclosure of the actual allegations, disclosure of a teacher?s 

identity would be highly offensive if the letter of direction does not identify 

substantiated misconduct and the teacher is not disciplined or subjected to any 

restriction.  

       If a teacher?s identity is redacted, disclosure of the redacted letter of direction 

is not highly offensive.  Teacher petitioners urge us to treat letters of direction as 

routine employment evaluations exempt from disclosure under Dawson, 120 Wn.2d 

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Bellevue John Does 1-11 v. Bellevue Sch. Dist. No. 405, No. 78603-8

at 798.  However, teacher petitioners fail to establish how disclosure of a letter of 

direction is highly offensive if all identifying information is redacted.  If disclosure is 

not highly offensive under former RCW 42.17.255, we need not determine whether 

there is a legitimate public concern in redacted letters of direction.  Thus, we turn to 

whether there is a legitimate public concern in the identities of teachers who are the 

subjects of letters of direction that do not identify any substantiated allegations or 

impose any discipline.

       2.     The public does not have a legitimate concern in the identities of 
              teachers who are the subjects of letters of direction when such letters 
              do not identify any substantiated misconduct or impose any discipline 

       The public does not have a legitimate concern in unredacted letters of 

direction when such letters do not identify any substantiated allegations or impose 

any discipline.  While our inquiry into the legitimacy of the public?s concern cannot 

take into account the identity of the requesting party or the purpose of the request, 

former RCW 42.17.270 (1987), amended and recodified as RCW 42.56.080 (Laws 

of 2005, ch. 483, § 1, ch. 274, § 285), the legitimacy of the public?s concern should 

be viewed in the context of the PDA.  Dawson, 120 Wn.2d at 797-798.  

       The PDA seeks to provide people with full access to public records while 

remaining ?mindful of the right of individuals to privacy and of the desirability of 

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Bellevue John Does 1-11 v. Bellevue Sch. Dist. No. 405, No. 78603-8

the efficient administration of government.?           RCW 42.17.010(11).   ?Requiring 

disclosure where the public interest in efficient government could be harmed 

significantly more than the public would be served by disclosure is not reasonable.?  

Dawson, 120 Wn.2d at 798.  In Dawson, we determined that while ?the public has 

some degree of interest in . . . the evaluations of prosecutors,? legitimate public 

concern is lacking in light of the potential harm caused by disclosure.  Id. at 799.  

We cited the erosion of employee morale as a possible harm resulting from the 

disclosure of employee evaluations, along with the ??chill[ing] [of] candor in the 

evaluation process.??  Id. at 799 (quoting Ripskis v. Dep?t of Hous. & Urban Dev., 

241 U.S. App. D.C. 8, 746 F.2d 1, 3 (1984)).

       Here, we are urged to prevent disclosure of the teachers? identities because of 

potential  harm to the school districts and an invasion of the teachers? privacy.  

Teacher petitioners point out numerous harmful effects resulting from disclosure of 

letters of direction, including a decline in the reporting of allegations, unwillingness

by supervisors to memorialize any communications regarding alleged misconduct, 

and the loss of institutional knowledge when a supervisor leaves a school district 

because previous communications with employees were not in writing.  See Pet. for 

Review at 16.     Respondent Federal Way School District (FWSD) observes that if 

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Bellevue John Does 1-11 v. Bellevue Sch. Dist. No. 405, No. 78603-8

letters of direction are released to the public, ?[d]espite the letter of direction 

serving merely as an evaluative, supervisory tool, employees will view the potential 

public disclosure of such letters as threatening their professional reputations, and 

therefore worthy of vigorous challenge.? Br. of Resp?t FWSD at 7.

       Amicus ACLU-WA echoes these concerns, asserting that disclosure of 

teacher identities and letters of direction may result in qualified teachers avoiding 

the profession, a reluctance to work with ?difficult? or challenging students, and the 

avoidance or hesitation on the part of administrators to issue letters of direction out 

of fear that teachers will file costly grievance procedures.  Br. of ACLU-WA at 9-

10. Most importantly, notes amicus ACLU-WA, if letters of direction are disclosed 

to the public, schools will lose the valuable opportunity to address and correct minor 

professional conduct issues.  

              Investigations into alleged misconduct often reveal behaviors 
       that cannot fairly be described as ?misconduct,? but nonetheless fail to 
       meet desired professional standards.  There is value in allowing a 
       supervisor or investigator to suggest changes in behavior, or remind 
       employees of desired standards.  But if these suggestions are opened to 
       public view, it is likely that many supervisors will instead choose to 
       remain silent, or at least not use written direction, so as not to tarnish a 
       generally good employee?s reputation.

Id. at 11.  

       The trial court determined that disclosure of unredacted letters of direction 

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Bellevue John Does 1-11 v. Bellevue Sch. Dist. No. 405, No. 78603-8

would ?substantially and irreparably damage vital government functions because it 

would chill employer-employee communications by making all written 

communications between employer and employee subject to disclosure.?                     CP at 

100, ¶ 10.    The Court of Appeals was not persuaded that the negative impact of 

disclosing letters of direction outweighed the public interest articulated in Brouillet

and ordered that the unredacted letters of direction be disclosed.25            Bellevue John 

Does, 129 Wn. App. at 848-49.

       We find that there is no legitimate public concern in information identifying 

the teachers within the letters of direction but that disclosure of redacted letters of 

direction does not violate the teachers? right to privacy because it is not highly 

offensive.  Thus, we hold that the PDA mandates disclosure of letters of direction; 

however, where a letter simply seeks to guide future conduct, does not mention 

substantiated misconduct, and a teacher is not disciplined or subject to any 

restriction, the name and identifying information of the teacher should be redacted.  

This result protects both the public interest in overseeing school districts? responses 

to allegations (letters of direction give citizens a complete picture of a  school 

district?s investigations and accompanying procedures) and the teacher?s individual 

       25As mentioned earlier,  Brouillet  stands only for the proposition that  known  sexual 
misconduct on behalf of teachers is of legitimate public concern, and the Court of Appeals?
reliance on Brouillet is misplaced. 

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Bellevue John Does 1-11 v. Bellevue Sch. Dist. No. 405, No. 78603-8

privacy rights.

                                    IV.  CONCLUSION

       We reverse the Court of Appeals in part.  We hold a teacher?s identity should 

be released under the PDA only when alleged sexual misconduct has been 

substantiated or when that teacher?s conduct results in some form of discipline, even 

if only a reprimand.  Letters of direction and related documents must be disclosed 

under the PDA, but where a letter simply seeks to guide future conduct, does not 

identify an incident of substantiated misconduct, and does not subject the teacher to 

any form of restriction or discipline, a teacher?s name and other identifying 

information must be redacted.

       The case is remanded for further proceedings consistent with this opinion.

AUTHOR:
       Justice Mary E. Fairhurst

WE CONCUR:
       Chief Justice Gerry L. Alexander                 Justice Susan Owens

                                                        Justice James M. Johnson

                                                        Bobbe J. Bridge, Justice Pro Tem.

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Bellevue John Does 1-11 v. Bellevue Sch. Dist. No. 405, No. 78603-8

       Justice Tom Chambers, result only

                                               34