Bellevue PD SWAT shooting 2013-03-22: investigation file index (BPD)

Phil Mocek filed this request with the Bellevue Police Department of Bellevue, WA .
Status
Rejected

Communications

From: Phil Mocek

To Whom It May Concern:

Pursuant to RCW Ch. 42.56 (Public Records Act), I hereby request the following records:

Index of records contained in the police investigation file that was cited by Kyle Aiken, Legal Advisor for Bellevue Police Department, via e-mail on April 8, 2013, as justification for denying my request, placed the same day, for warrants and supporting affidavits related to the March 22, 2013, incident during which members of the Bellevue Police Department SWAT unit Casey Hiam, Jacob Bement, and Jacob Childers executed a man at approximately 5:00 a.m. near South Hudson Street and 42nd Avenue South in the Columbia City neighborhood of Seattle, Washington.

I also request that, if appropriate, fees be waived as I believe this request is in the public interest. The requested documents will be made available to the general public free of charge as part of the public information service at MuckRock.com, processed by a representative of the news media/press and is made in the process of news gathering and not for commercial usage.

In the event that fees cannot be waived, I would be grateful if you would inform me of the total charges in advance of fulfilling my request. I would prefer the request filled electronically, by e-mail attachment if available or CD-ROM if not.

Thank you in advance for your anticipated cooperation in this matter. I look forward to receiving your response to this request within 5 business days, as the statute requires.

Sincerely,

Phil Mocek

From: Phil Mocek

RE: My records request of April 9, 2013

Dear Sir or Madam:

What is the status of your processing of my request? A response from you was due withing five business days, but almost three weeks have passed without any contact from you regarding this request.

Cordially,
Phil Mocek

From: Bellevue Police Department

Dear Mr. Mocek:

In the original denial of your request, I cited Newman v. King County and explained that under RCW 42.56.240 (1) it is essential to effective law enforcement that open investigations be categorically exempt from production. In Newman, the Court held:

We hold the broad language of the statutory exemption requires the nondisclosure of information compiled by law enforcement and contained in an open and active police investigation file because it is essential for effective law enforcement. The language of the statute provides for a categorical exemption for all records and information in these files.

In other contexts, this court has stated

In general, the Public Records Act does not allow withholding of records in their entirety. Instead, agencies must parse individual records and must withhold only those portions which come under a specific exemption. Portions of records which do not come under a specific exemption must be disclosed.

Progressive Animal Welfare Soc'y, 125 Wash.2d at 261, 884 P.2d 592. This approach cannot be followed in this case because the statute does not define or establish any guidelines to limit the scope of the exemption. The ongoing nature of the investigation naturally provides no basis to decide what is important. Requiring a law enforcement agency to segregate documents before a case is solved could result in the disclosure of sensitive information. The determination of sensitive or nonsensitive documents often cannot be made until the case has been solved. This exemption allows the law enforcement agency, not the courts, to determine what information, if any, is essential to solve a case. The language used in the statute protects law enforcement agencies from disclosure of the contents of their investigatory files.

King County has no duty to disclose any information contained in an open investigation file because the documents are exempt under RCW 42.17.310(1)(d). We conclude these documents are essential to effective law enforcement because the case is open; evidence presented specifically explains the burden placed on the agency's ability to perform its given role; and enforcement proceedings are still contemplated. King County has met its burden of showing the language and scope of the statutory exemption are broad and encompass all documents. No segregation of the documents is provided for under the language of the exemption.

Newman v. King County, 133 Wash. 2d 565, 574, 947 P.2d 712, 716 (1997) (Emphasis added)

This exemption protects production of an index of the open investigatory file. An index would disclose the contents completely undermining the essential need for the non-disclosure. It would reveal witnesses, investigative leads, and jeopardize the integrity of the investigation. Your request remains denied categorically until the investigation is closed.

Sincerely,

Kyle Aiken
Legal Advisor
Bellevue Police Department
425-452-7826
The contents of this electronic mail message do not necessarily reflect the official views of the elected officials or citizens of the City of Bellevue.

From: Phil Mocek

RE: My records request of April 9, 2013

Dear Mr. Aiken:

I am in receipt of your e-mail of April 30, 2013. Please understand that I filed two distinct records requests with your agency, providing two distinct e-mail addresses for related correspondence.

I filed [the first request][1] on April 8. Later that day, you e-mailed notice of denial in full of my request, including language indicating to me that you misunderstood my request. I e-mailed on April 10 to clarify. I have received no further contact from you regarding that outstanding request.

I filed [the second request][2] on April 9. On April 30 (this morning), I requested a status update on the second request. Your e-mail to me this morning was the first contact I have received from you regarding the second request, 21 days since I filed it.

[1]: <https://www.muckrock.com/foi/bellevue-402/bellevue-pd-swat-shooting-in-seattle-2013-03-22-warrants-affidavits-4894/>
(FOI Request: Bellevue PD SWAT shooting in Seattle 2013-03-22: warrants & affidavits)

[2]: <https://www.muckrock.com/foi/bellevue-402/bellevue-pd-swat-shooting-2013-03-22-investigation-file-index-bpd-4900/>
(FOI Request: Bellevue PD SWAT shooting 2013-03-22: investigation file index)

Cordially,
Phil Mocek

From: Bellevue Police Department

Dear Mr. Mocek:

I apologize for my confusion in your records requests with multiple addresses. I had a family emergency on April 9th and had to leave the state for the rest of the week. While I was away, I did respond on April 10th to one message. I must have assumed the other e-mail (that was forwarded to me from Records) was a copy of the same request that I responded to on April 10th. That was my mistake and I apologize for making the error. I will try to be more diligent in the future.

To make sure that I am clear on your requests and the status, please check whether my beliefs are accurate:

1. April 8, 2013 Bellevue PD SWAT shooting in Seattle 2013-03-22: warrants & affidavits. Response: Denied Open investigation on April 8, 2013.
2. April 9, 2013 Clarification of Warrant and affidavits requests: Denied Open investigation April 10, 2013
3. April 9, 2013 Freedom of Information Request: Bellevue PD SWAT shooting 2013-03-22: investigation file index (BPD). This was forwarded to me from Records and I mistakenly assumed it was the same as the other request. I accessed it on my I-Pad while in another state on an emergency and failed to notice the difference in the e-mail title. This was my error. Response: Denied Open Investigation April 30, 2013.
4. April 17, 2013 Freedom of Information Request: Tactical Ops documents (Bellevue) Response: Produced April 22
5. April 23, 2013 Follow up to Freedom of Information Request: Bellevue Police Department information sharing MOUs Response Produced April 23
6. April 24, 2013 Follow up to Freedom of Information Request: Bellevue Police Department information sharing MOUs Response Produced April 26

Again I apologize for not catching that there were two e-mails. In the future, I will ask Records not to forward e-mail requests to me when I am out of the office. I will ask them to respond to those they can handle and ask them to acknowledge the requests and estimate a response. Unfortunately this time, because of the emergency, I left directly from home to the airport and neglected to tell them about my absence. I work in a different area and they were unaware of my absence.

Please let me know if we have anything still unresolved.

Thank you.

Kyle Aiken
Legal Advisor
Bellevue Police Department
425-452-7826
The contents of this electronic mail message do not necessarily reflect the official views of the elected officials or citizens of the City of Bellevue.

From: SPD

Mr. Mocek:

Thank you for your follow-up request. I have attached the e-mails previously sent to you in response to this "follow-up" request. I am unsure why you persist in stating that you have not received a response.

To be clear: your request is denied because the items you request are part of an open active investigation. This is based on RCW 42.56.240 (1). It is essential to effective law enforcement that open investigative material not be disclosed because it could interfere with the investigation. This was established in Newman v. King County.

We do not know when the investigation will be completed.

Sincerely,

From: Bellevue Police Department

Dear Mr. Mocek:

The documents you request are part of an open investigation. Under RCW 42.56.240 (1) it is essential to effective law enforcement that open investigations remain totally exempt from public disclosure. This protects the integrity of the investigation. The Washington Supreme Court held this in Newman v. King County. The documents are currently totally and categorically exempt.

Totally and categorically exempt means that we do not provide any portion of the records in an open investigation until the investigation is closed. Your requests for portions of the open investigation have been and are denied.

RCW 42.56.520 provides that the agency must provide the record or provide a reasonable estimate of the time required to respond or deny the public record request. It does not provide that that we provide a reasonable estimate of when a denied request will be filled. The records you are requesting are included in 13-13818. I cannot predict when the investigation will be completed and when the public record will be prepared.

Sincerely,

Kyle Aiken
Legal Advisor
Bellevue Police Department
425-452-7826
The contents of this electronic mail message do not necessarily reflect the official views of the elected officials or citizens of the City of Bellevue.

From: Phil Mocek

RE: appeal of denial of my public records request of April 9, 2013

Dear Sir or Madam:

I appeal. In Kyle Aiken's e-mail of May 16, he wrote, "The documents you request are part of an open investigation." I did not request multiple documents, and an investigation is a process, not something comprised of records that could be requested. I requested a single record: the index "of records contained in the police investigation file that was cited by Kyle Aiken, Legal Advisor for Bellevue Police Department, via e-mail on April 8, 2013, as justification for denying my request, placed the same day, for warrants and supporting affidavits related to the March 22, 2013, incident during which members of the Bellevue Police Department SWAT unit Casey Hiam, Jacob Bement, and Jacob Childers executed a man at approximately 5:00 a.m. near South Hudson Street and 42nd Avenue South in the Columbia City neighborhood of Seattle, Washington."

Cordially,
Phil Mocek

From:

Dear Mr. Mocek:

Thank you for your follow-up request. Thank you for clarifying that the responses I sent were received although they were not sent to the exact in-box you requested. I apologize for the confusion.

To be clear: your request is denied because the items you request are part of an open active investigation. This is based on RCW 42.56.240 (1). It is essential to effective law enforcement that open investigative material not be disclosed because it could interfere with the investigation. This was established in Newman v. King County.

We do not know when the investigation will be completed.

Sincerely,
Kyle Aiken

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