Police dept internal investigations of John T. Marion #6963

Phil Mocek filed this request with the Seattle Police Department of Seattle, WA.
Tracking # P2013-2600
Est. Completion None
Status
Payment Required

Communications

From: Phil Mocek

To Whom It May Concern:

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

The full and complete content of every Seattle Police Department Office of Professional Accountability (OPA) investigative file in which John T. Marion #6963 was a named officer at any point in the investigation, along with associated metadata.

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: SPD-PDR, SPD

PDR # P2013-2600

Mr. Mocek,

This email is in response to your public disclosure request.

Pursuant to RCW 42.56.520, this is notification that we have received your public disclosure request, and we anticipate it may take up to 8 weeks from the date of this notification to respond with a first installment. Therefore we anticipate a response to you on or about October 11, 2013.

This additional time is used to research this request, collect responsive records, and/or prepare records for dissemination. Please note: Seattle Police Department currently receives approximately 4,000 public disclosure requests annually. The current volume of Public Disclosure Requests combined with SPD staffing requires this additional time.

If you have any questions or need further assistance with this request, please contact the Public Disclosure Desk at 206-684-5481.

From: MuckRock.com

To Whom It May Concern:

I wanted to follow up on the following Freedom of Information request, copied below, and originally submitted on Aug. 14, 2013. Please let me know when I can expect to receive a response, or if further clarification is needed. You had assigned it reference number #P2013-2600.

Thank you for your help.

From: SPD-PDR, SPD

PDR # P2013-2600

Mr. Mocek,

This email is in further response to your public disclosure request for copies of all IIS complaints filed against Officer Marion.

A search of the files within the Internal Investigations Unit, resulted in nine (9) IIS complaints filed against Officer Marion. Two of these IIS complaints, IIS 13-
0018 and IIS 13-0266 are still open investigations and are not available at this time. Non-disclosure of open, active internal investigations is essential to effective law enforcement. (RCW 42.56.240(1).) Explanation: The contents of an active investigation are categorically exempt in their entirety. See Newman v. King County, 133 Wn.2d 565, 947 P.2d 712 (1997).

The Department remaining IIS complaints ready for pick up: IIS 10-0368, IIS 10-0571, IIS 11-0370, IIS 10-0455, LI 11-0194. SA 12-0462 and SA 13-0048.

The fee for your request is $83.30 for 833 pages scanned to a CD @ $0.10 per page and 4 additional CDs at $1.00/CD with media on them.

If you are unable to pick up your request, please send a check payable to the City of Seattle for $83.90 (to cover copying fee and postage) with a copy of this email to:
Seattle Police Department
Attn: Public Request Unit
PO Box 34986
Seattle, WA 98124-4986

If you wish to come in and view these records in place instead, please let us know and the Department will make the paper records available to you.

The Department has not prepared a detailed exemption log for records because only limited information has been redacted from the responsive records. The information normally provided in an exemption log, such as title, author, recipient, subject, and number of pages, is readily ascertainable by looking at the redacted records. Redactions have been applied throughout the IIS files pursuant to the following exemptions:
Unsubstantiated Employee Investigation: Disclosure of the identity of the subject of an unsubstantiated investigation of an employee would violate that
individual's right to privacy. RCW 42.56.230(2). See, Bellevue John Does 1-11 v. Seattle Times, 164 Wn.2d 199, 183 P.3d 139 (2008). See also, Bainbridge Island
Police Guild v. City of Puyallup, ___ Wn.2d ___, 259 P.3d 190 (2011) (holding that it would be a violation of privacy to release the identity of a police officer who
was the subject of an unsubstantiated internal investigation). Explanation: Releasing the identity of the subject of an unsubstantiated investigation could
violate the subject's right to privacy.
DOL Records: Records contain information that was received from the State Department of Licensing (DOL), disclosure of which Is restricted or prohibited.
Disclosure of an individual vehicle owner's name and address, driver's license number and VIN to Third parties is limited under RCW 46.12.635 (See also, 18
USC § 2721). Criminal justice agencies in Washington State, such as SPD, have access to DOL vehicle records through the Washington State Patrol "A Central
Computerized Enforcement Service System" (ACCESS). ACCESS procedures provide that criminal justice agencies have access to DOL vehicle records for
criminal justice purposes and prohibit communication or dissemination to private individuals or companies for other than criminal justice purposes. While
SPD is prohibited from providing this information to you, you correctly observe that RCW 46.12.635 allows certain individuals, businesses and government
Agencies access to it. Your request for access, however, must be directed to DOL. We direct you to the State Department of Licensing website (http://www.dol.wa.gov/), forms section, for a "Vehicle/Vessel Information Disclosure Request."RCW 46.52.130 prohibits release to third parties of abstract and certified copies of driving records. Driver's license photographs and medical or disability information is "highly restricted personal information" and may not be released to third parties under 18 USC § 2721. Explanation: Disclosure of information is statutorily restricted/prohibited and would violate the subject's right to privacy. The information could be used identity theft, fraud or other criminal activity.
WACIC Information: Washington Crime Information Center (WACIC) is a centralized state computerized index of criminal justice information (i.e., criminal record history information, fugitives, stolen properties, missing persons) associated with the National Crime Information Center (NCIC) available to Federal, state, and local law enforcement and other criminal justice agencies for law enforcement purposes. Information obtained from WACIC/NCIC is exempt from disclosure under RCW 42.56.070 and RCW 43.43.710. Explanation: Dissemination is statutorily prohibited.
Juvenile Records: Record contains information on a juvenile, which is confidential, and may not be released to the public except by court order or written consent under provisions of RCW 13.50.050 (records relating to commission of juvenile offenses) and RCW 13.50.100(3) and/or RCW 13.50.100(4)(a)and(b) (records not relating to commission of juvenile offenses.) Explanation: Agencies are prohibited from disclosing information related to juveniles without a court order or written consent because disclosure is statutorily prohibited and would violate the subject's right to privacy.
Requested Nondisclosure: Complainant, victim or witness requested the information not be disclosed. (RCW 42.560.240(2)). Explanation: The complainant's,
victim's, or witness's indication at the time of the complaint controls the determination whether to disclose.
Social Security Numbers: Record contains Social Security Numbers. Social Security Numbers of agency employees, volunteers, and their dependents are specifically exempt.(RCW 42.56.250(3)). Social Security Numbers of all individuals are also exempt under Federal law. (26 U.S.C. § 6103, another statute under RCW 42.56.070) Statutorily prohibit: Disclosure of SSN's is prohibited by Federal statute and SSN's could be used for identity theft, fraud or other criminal activity.
Jail Records/Booking Photos: The records contain booking photos and other jail records. RCW 70.48.100 prohibits the disclosure of the records of a person confined in jail. Explanation: Disclosure of information is statutorily prohibited.

The Department is withholding in-car videos from the following IIS files:
IIS 11-0370: 6827@20110821021616
IIS 10-0571: 7403@20101213214315 and 7403@20101213223811
LI 11-0194: 6963@20110308223746
SA 12-0462: 6963@20120812225931
pursuant to the following exemption: In-Car Video: Pursuant to RCW 9.73.090(1)(c), no sound or video recording may be duplicated and made available to the public until final disposition of any litigation which arises from the incidents that were recorded. The subject of the video or his or her attorney may receive a copy of the video prior to final disposition of related litigation. Explanation: Disclosure of information is statutorily prohibited and would violate the subject's right to privacy.

The Department is withholding the following pages from IIS 10-0455: 179, 178, 174, 173, 31, 64, 68, 69 and 75. All of these pages have to do with employee
benefits and are exempt from disclosure pursuant to the following exemption: Employee Benefits/Insurance Info: Records contain information regarding
employee's benefits and insurance choices and designations, disclosure of which would violate the employee's right to privacy and is exempt under RCW
42.56.230(2). Explanation: Disclosure of the information would be highly offensive to a reasonable person, and is not of legitimate concern to the public.

If you feel that this information has been withheld in error, you may file a written appeal of this response with the Chief of Police within ten (10) business days from the date of this letter. Please include your name and address and a copy of this letter together with a brief statement identifying the basis of the appeal. Please mail or deliver your appeal to:

Chief of Police
Seattle Police Department
PO Box 34986
Seattle, WA 98124-4986

This concludes the Department's response to your public disclosure request.

If you have any questions, please contact the Public Disclosure Desk at 206-684-5481.

From: Phil Mocek

RE: my public records request of August 14, 2013 (your identifier: P2013-2600)

Dear Chief Jim Pugel:

I received your e-mail of October 11, 2013, regarding my request for OPA investigative files in which John T. Marion #6963 was a named officer at any point in the investigation. This is the officer who was captured on Seattle Police Department video in July of this year lying to Dominic Holden, news editor at _The Stranger_, about a public transit plaza being private property, then repeatedly threatening to visit Mr. Holden's place of business to harass him because he, a reporter, had the temerity to inquire with officers as to who was in charge at the scene of an incident he witnessed. I think it is important for the public to discover if Mr. Marion has history of similar misconduct while employed by your department.

I have several concerns about your e-mail.

In your e-mail, you stated that seven of the nine complaints filed against Mr. Marion are ready for pickup, and you stated that the fee for my request is approximately $80, citing a cost of ten cents per page for digitizing approximately 800 pages, presumably printouts of records that were created and once held by your office the electronic format in which I requested them.

I never agreed, explicitly or implicitly, to pay such a fee. I believe that ten cents per page is more than the real cost of dropping a stack of papers into a high-speed scanner. As you know, the Public Records Act does not allow you to charge more than the actual cost of reproducing records for such work. How have you calculated this fee? What makes and models of document scanners are installed at your office?

Given my experience with requests records your office holds in printed form, I find your response this time unique in that it implies that the work of scanning these records has already been performed. Has it been performed? If so, were the records scanned previously (e.g., in response to someone else's request for them), or were they scanned in anticipation of my willingness to pay the fee instead of visiting to review the records in person for free?

You also stated that the department is withholding five dashboard camera videos that are included in the responsive records. I see from the video identifiers that these recordings were made between December, 2010, and August, 2012. You stated that these are withheld because of a law you claim exempts such recordings from disclosure "until final disposition of any litigation which arises from the incidents that were recorded." Are you aware of any such litigation having arisen from incidents recorded in these videos? If so, please provide a reference to such.

These videos are public record. They are recordings of public employees interacting with the public, on the job, using publicly-funded equipment. They are part of investigations into alleged misconduct of a member of your staff who is known---based on *other* dashboard camera video that you released despite the very real potential of litigation arising from violation of Mr. Holden's civil liberties---to act in an abusive manner toward the public while on the job. I think we deserve to see previous evidence of Mr. Marion's conduct while working as a public employee.

It has taken almost two months for you to respond to my request by telling me what records are available. Mr. Marion has been the subject of much news media attention since reporting of the aforementioned incident of him harassing Dominic Holden in July. I requested these records approximately three weeks after that incident. I would expect that SPD management, if not the press, would have reviewed Mr. Marion's history with the department and located the set of records I requested by the time I requested them or soon thereafter, so I am puzzled by the fact that it took you almost two months to respond to my request with notification that you identified responsive records. Does Seattle Police Department maintain an index of staff who were named officers at any time in OPA investigations? Does the department maintain an index of staff about whom IIS complaints were filed? How much time was spent researching my request?

I look forward to your response and I thank you for your continued assistance.

Cordially,
Phil Mocek

From: SPD-PDR, SPD

Mr. Mocek,

If you would like to come in and view the paper copies of the files, as I stated in the email to you on October 11th, please let us know and we will put a copy of the records at the Public Request Unit counter.

In response to your about the Department’s denial of the in-car videos, they were denied because RCW 9.73.090(1)(c) provides that no sound or video recording made by video cameras mounted in law enforcement vehicles may be duplicated and made available to the public until final disposition of any criminal or civil litigation which arises from the event or events which were recorded.

Please see the attached orders in the Fisher Broadcasting – Seattle TV L.L.C., dba KOMO 4 v. City of Seattle, King County Superior Court, 11-2-31920-2. On April 6, 2012, Judge Rogers held that RCW 9.73.090(1)(c) is an “other statute which exempts or prohibits disclosure of specific information or records” under RCW 42.56.070 and that the City’s policy of not releasing in-car video tagged from retention to the public for three years from the date of the events recorded is a reasonable and narrow interpretation of the statue. Judge Rogers’ June 6, 2012 order clarified the earlier order by concluding that fees awarded were not related to Plaintiff’s arguments concerning the City’s retention policy. This case is currently on appeal to the Washington Supreme Court, Case #87271-6.

Based on the City’s interpretation of this statute, as supported by Judge Rogers’ determination, RCW 9.73.090(1)(c) prohibits the City from releasing the requested videos to the public until at least years from the date of the events recorded. The City releases in-car video within the three-year period to the attorney of the subject of a video or upon receipt of the signed release of the subject. Based upon our understanding of your request, you do not represent the subjects or have not obtained the release of the subjects of these videos. Therefore the records cannot be disclosed to you, at this time for the above cited reasons.

If you have any further questions, you can contact our Public Disclosure Desk at 206-684-5481.

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