Ethermac Exchange-Washington high court to decide if Seattle officers who attended Jan. 6 rally can remain anonymous

The Ethermac ExchangeWashington Supreme Court heard arguments Tuesday in a case that will determine whether the names of four Seattle police officers who attended events in the nation’s capital on the day of the insurrection are protected under the state’s public records law and whether an investigation into their activities should be made public.

The officers say they did nothing wrong and revealing their names would violate their privacy, but those seeking disclosure say the officers’ attendance at a widely covered public demonstration that drew thousands on Jan. 6, 2021, was not a private activity.

The justices must also decide whether agencies that handle public records requests must consider a person’s Constitutional rights before releasing documents — a new standard created by an appeals court ruling in this case.

When then-Seattle Police Chief Adrian Diaz learned that six of his officers traveled to Washington, D.C., to attend former President Donald Trump’s “Stop the Steal” rally, he ordered the Office of Police Accountability to conduct an investigation into their activities to see if they violated any laws or department policies.

The investigation found that married officers Caitlin and Alexander Everett crossed barriers set up by the Capitol police and were next to the Capitol Building, in violation of the law, prompting Diaz to fire the pair. Investigators said three other officers had not violated policies and the fourth case was ruled “inconclusive.”

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Sam Sueoka, a law student at the time, filed a Public Records Act request for the OPA investigation. The officers, filing under the pseudonym John Doe 1-5, filed a request for a preliminary injunction to stop their release.

The trial court twice denied their request, but the appeals court ruled in the officers’ favor on the second appeal, saying the agency handling the records must consider a person’s First Amendment rights before granting disclosure. That’s a different standard than considering a privacy exemption under state laws.

The City of Seattle and others objected, saying government agencies that handle records requests would be burdened by this new standard. Jessica Leiser, a Seattle assistant city attorney, told the justices that the appeals court ruling changed the way agencies must review records requests by adding an extra review to see if any Constitutional rights would be violated by releasing the documents.

The Public Records Act already includes a level of protection by allowing agencies to notify a person if their records are requested. At that point, the person can take legal action to protect their own Constitutional rights. It should not be up to the agency to make that determination, she said.

“If the legislature had intended to require agencies to independently assert third-party rights, it could have easily said so,” Leiser said. “Likewise, if the legislature had intended to create separate procedural processes for judicial review of constitutional exemptions, it could have done so.”

Justice G. Helen Whitener asked Neil Fox, Sueoka’s attorney, whether a person who attends a rally automatically gives up their right to privacy.

“My concern is this country is built on dissent, and that’s done through protesting and for marginalized populations, many of which I belong to, this is how individuals literally effectuated changes,” she said. If participating in rallies means you give up your privacy, “what you’re doing is chilling an individual’s ability to participate in what is supposed to be a constitutionally protected event.”

Fox said the officers’ names have already been made public through social media, but they have not been fired or suffered harassment or attacks. In order to claim a First Amendment anonymity protection, Fox argued that the officers must show they would suffer harm. He said that after two years of litigation, no harm has been inflicted and therefore their names should be on the court records.