The King County Prosecuting Attorney’s Office has agreed to pay The Seattle Times $70,000 and changed a policy for public records requests after a judge ruled police files from a sexual assault investigation were illegally withheld from the newspaper.
The legal settlement involved a request by The Times earlier this year for a 521-page summary of the Clyde Hill Police Department’s 2018 investigation into an alleged gang rape by Eastside Catholic high school football players.
The file had previously been released, with the names of the alleged victim, suspects and witnesses redacted. But the prosecutor’s office gave notice to the players’ families, giving them the opportunity to intervene in court earlier this year and block disclosure.
The Times sued the prosecutor’s office, alleging the delays violated the state public records law. During the suit, the prosecutor’s office disclosed that, after releasing the police files to TV station KING 5 in 2018, it made a deal to give players’ attorneys so-called third party notice of any additional requests.
The prosecutor’s office argued that such notice is within the discretion of public agencies, even for previously disclosed records. The Times’ lawyer, Kathy George, argued that the previous disclosure to KING 5, which the players’ families did not seek to block, and subsequent disclosure to several attorneys made the withholding from The Times unlawful.
Last month, King County Superior Court Judge Julie Spector agreed, ruling the prosecutor have promptly disclosed the same records, without third party notice to players.
“It was not reasonable to delay a response to The Seattle Times for records already determined by the (prosecutor’s office) to be not exempt and produced to other requesters,” she wrote in her ruling.
Toby Nixon, president of the Washington Coalition for Open Government, said he hopes that Spector’s ruling will slow what he sees as a growing statewide trend: public agencies “gaming the system’’ by using third party notice to encourage private litigation to keep records from being released.
“Hopefully, it does put other agencies on notice that the courts are not going to stand for them using these types of delaying tactics,’’ Nixon said.
Wednesday was the deadline for the prosecutor’s office to appeal Spector’s ruling ahead of the lawsuit proceeding to the penalty phase, where The Times was eligible to recover court fees and possibly damages. Instead, the prosecutor’s office settled the lawsuit on Tuesday and agreed to implement new directives on when third party notice should be given.
The prosecutor’s office has pledged it now “will not give third-party notice to a party who previously received third-party notice and did not seek to enjoin the release of records.’’
Had the new policy been in place last January, The Times would have received the police records without players being given a chance to block disclosure.
Spector ruled that it was not illegal to notify the players about 1,681 pages of additional records sought by The Times, which had not been previously released. She did not rule on whether those records were exempt from disclosure, but in the players’ separate lawsuit seeking to stop them from being released, King County Superior Court Judge Ken Schubert said they were are not. The players have appealed.
In both lawsuits, The Times argued the additional, previously released records were vital to scrutinizing the police investigation and the decision by the prosecutor’s office not to bring criminal charges against the players involved.
The investigation involved a 16-year-old girl who told police she was sexually assaulted in a pickup truck on April 20, 2018 by four Eastside Catholic players and that a video of the incident had circulated among students on Snapchat.
The girl also told police two other football players — one from Eastside Catholic and another from a different school — were in the truck but had not participated in the assault.
Clyde Hill police chief Kyle Kolling, whose department handled most of the investigation, said he’d wanted charges filed. King County Prosecuting Attorney Dan Satterberg defended his decision not file charges, saying in a statement, “These young men were not treated differently because they were football players, either giving them a benefit or holding them to a higher standard.’’
The players involved in the case were star athletes whose university football scholarships risked being voided if word of the investigation got out. Stanford University rescinded the scholarship of an Eastside Catholic star, who reportedly been a witness, after a Palo Alto, California, newspaper reported on the case.
Two other players, described by police as suspects, received football scholarships from the University of Washington and the University of California. Both schools confirmed they are investigating the players’ roles but have yet to comment further.
The Times in April requested all UW records pertaining to the Huskies’ recruitment of their Eastside Catholic player. After initially estimating it would take until July 15, the school has since twice delayed without explanation and now says it needs until mid-November.
The police investigation records requested by The Times, however, won’t be immediately released, pending the appeal in the separate legal case filed by the players’ families. It is currently on appeal.