Basey v. State, Department of Public Safety, Division of Alaska State Troopers, Bureau of Investigations

OPINION

I. INTRODUCTION

In this appeal, Kaleb Basey argues the Alaska State Troopers (AST) must comply with his requests for certain public records. The State contends the requested records are statutorily exempt from disclosure because the records pertain to currently pending federal cases: a criminal case against Basey and a related civil suit he brought against various state employees. We conclude the State has not established that disclosure of these records “could reasonably be expected to interfere with enforcement proceedings” 1 or that either of these pending actions “involv[es] a public agency” 2 as required by the statutory exceptions the State cites.

II. FACTS AND PROCEEDINGS

Basey was the subject of a joint criminal investigation conducted by AST and the Fort Wainwright Criminal Investigation Division. He is now a party to two federal cases stemming from that investigation. First, Basey was indicted by a federal grand jury in December 2014 and is the defendant in a federal criminal ease. 3 Second, Basey brought a federal civil rights lawsuit in January 2016 against more than a dozen named individuals, including AST officers, based on their alleged actions during the investigation and his arrest. 4

In September 2016 Basey filed two public records requests with AST. He sought records related to his specific investigation, records related to AST’s use of military search authorizations, and disciplinary and training certification records for two AST investigators who are defendants in the civil case. 5 About a week later AST denied Basey’s requests on the basis that all of the information he requested pertained to pending litigation. Basey appealed to the Commissioner of the Department of Public Safety, 6 challenging AST’s determination that the records were not diselosable and arguing that any nondisc-losable information could be redacted. The Commissioner denied the appeal. The denial letter stated that the requested records “pertain to a matter that is currently the subject of civil and/or criminal litigation to which [Basey is] a party” and that pursuant to AS 40.25.122 the records “continue to be unavailable through [a public records request] and must be obtained in accordance with court rules.”

Basey subsequently filed a complaint in superior court to compel AST to produce the records. The State filed a motion to dismiss, asserting that two statutory exceptions justified the denial of Basey’s requests. First, the State claimed that “[AS] 40.25.120(a)(6)(A) authorizes refusal to disclose records when the records pertain to a pending criminal prosecution,” and it asked the court to take judicial notice of the pending federal criminal case. Second, the State claimed “[AS] 40.25.122 authorizes refusal to disclose records when the requestor is a party in a pending civil lawsuit that relates to the sought after records,” and it asked the court to take judicial notice of the pending federal civil case. The State attached a redacted version of the federal civil complaint to its motion.

Basey opposed the motion, challenging the State’s characterizations of the cited statutory exceptions. Citing Brady v. State 7 and an attorney general opinion, 8 he argued that the AS 40.25.122 litigation exception applies only when the requestor is “involved in litigation with the state” and that he had named individual persons, not the State, in his civil suit. (Emphasis in original.) Basey also argued that the AS 40.25.120(a)(6)(A) law-enforcement exception did not apply because the State had not “made a sufficient showing ... that disclosure of the requested records and information would reasonably interfere with enforcement proceedings.” 9

Without holding a hearing, the superior court dismissed the case with prejudice “[b]ased upon the reasoning in [the State’s] Motion to Dismiss.”

III. STANDARD OF REVIEW

The State did not indicate the procedural basis for its motion to dismiss, nor did the superior court do so in granting the motion. We construe the motion as one to dismiss for failure to state a claim pursuant to Alaska Civil Rule 12(b)(6), 10 which we review de novo. 11 Under Rule 12(b)(6) “[a] complaint should not be dismissed ‘unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim’ that would entitle him to some form of re-lief.” 12 This case also presents questions of statutory interpretation, which we decide “using our independent judgment.” 13 We consider the statute’s “text, legislative history, and purpose.” 14

IV. DISCUSSION

“[T]here is a strong commitment in Alaska ‘to ensuring broad public access to government records.’ ” 15 Consequently, “[e]very person has a right to inspect a public record in the state,” subject to certain exceptions set forth in statute. 16 These exceptions are “narrowly construe[d]” in order to further the legislative policy of broad access, 17 and the State generally bears the burden of showing that a record is not subject to disclosure. 18 Throughout this case, the State has relied on only two exceptions to justify AST’s nondisclosure of the requested records: the AS 40.25.122 litigation exception and the AS 40.25.120(a)(6)(A) law-enforcement-interference exception,

A. Litigation Exception (AS 40.25.122)

Alaska Statute 40.25.122 provides that documente relating to litigation involving a “public agency” 19 are subject to disclosure, with one exception:

A public record that is subject to disclosure and copying under AS 40,25.110-40.25.120 remains a public record subject to disclosure and copying even if the record is used for, included in, or relevant to litigation, including law enforcement proceedings, involving a public agency, except that with respect to a person involved in litigation, the records sought shall be disclosed in accordance with the rules of procedure applicable in a court oí-an administrative adjudication. In this section, “involved in litigation” means a party to litigation or representing a party to litigation, including obtaining public records for the party.

Basey was unquestionably “involved in litigation” when he submitted his records requests, but he asserts that the exception does not apply because he was not involved in litigation with a public agency. Rather, he was involved in litigation with individual state officers he sued in their personal capacity. The State- responds that the exception applies but does not cite any authority for its position or otherwise develop its argument. 20 Implicit in the State’s unsupported argument is a contention that the litigation exception applies whenever the requestor is involved in litigation, regardless of whether a public agency is a party to the litigation.

Both Basey’s narrow reading of the litigation exception and the State’s broad reading are. plausible on the face of AS 40.25.122: the statute’s first clause refers to “litigation ... involving a public agency,” but the second clause — containing the exception — refers only to “litigation.” Basey’s is the more natural construction, though. Generally, “each part ... of a statute should be construed with every other part ... so as to produce a harmonious whole.” 21 The litigation exception contained in the second clause of AS 40.25.122 is an apparent exception to the first clause: the clauses are joined with the conjunction “except,” and they both refer to the same subject matter. When the clauses are read together, the litigation exception exempts from disclosure certain records otherwise disclosable under the first clause of the section — that' is, certain records “used for, included in, or relevant to litigation .,. involving a public agency.” 22 The exception therefore applies only when the litigation involves a public agency.

The history of the litigation exception confirms this interpretation. The apparent precursor to AS 40.26.122 is a regulation drafted by the Department of Law and adopted in 1982. Former 6 Alaska Administrative Code (AAC) 95.150 provided that if a “requestor ... is in litigation with an agency in a judicial or administrative, forum, disclosure of ... records relevant to that litigation or reasonably likely to lead to the discovery of relevant evidence .is governed by the rules or orders in that forum,” 23 In a letter presenting 6 AAC 95.150 and related.regulations, Attorney General Wilson Condon explained that the regulation was a response to an “attempt” the preceding year “by an attorney in the midst'of litigation to carry on discovery of evidence outside the parameters of the court rules.” 24 According to Attorney General Condon, the attorney’s use of the Public Records Act to obtain discovery had “intruded on the state’s ability'to present its case at trial since the state’s witnesses had to divert their attention from the.trial to respond to the requests.” 25 .

The legislature took up this issue eight years later in 1990 when it enacted House Bill (H.B.) 405, a significant overhaul of the Public Records, Act. 26 According to Assistant Attorney General Jeff Bush, who testified in support of H.B, 405, the Department of Law “worked closely” with the bill’s sponsor, Representative Kay Brown, in coming to a final version of the bill. 27 The bill did not contain a litigation exception when it first passed the House. 28 But Representative Brown suggested in a memorandum to Pat Pourchot, the Chair of the Senate State Affairs Committee, that “a provision relating to public records involved in litigation” be added. 29 The proposed litigation provision was “OK with Dept, of Law/[Assistant Attorney General] Bush,” according to a handwritten note on Senator Pourchot’s copy of the memorandum. 30 The provision made it into the Senate State Affairs Committee substitute 31 and ultimately into the enacted statute, 32 and it is now codified at AS 40.25.122. 33 After the Senate’s version of H.B. 405 had passed both chambers, Attorney General Douglas Baily sent a bill review letter to Governor Steve Cowper in which he discussed the litigation exception. 34 He wrote that AS 40.25.122 was “consistent with ... 6 AAC 95.150 and [did] not change existing law.” 35

The foregoing history shows that the litigation exception was initially conceived to protect the State during litigation — to ensure that the State receives the protections afforded by the rules of discovery. Attorney General Condon cited this purpose when he presented former 6 AAC 95.150, and in fact 6 AAC 95.150 only applied when the requestor was in “litigation with an agency.” There is no indication that the legislature intended a different purpose when it enacted AS 40.25.122. To the contrary, the Department of Law’s substantial involvement in drafting H.B. 405 and its approval of adding a litigation provision to the bill suggest that AS 40.25.122 was intended as a statutory replacement for 6 AAC 95.150. Attorney General Bail/s contemporaneous interpretation of AS 40.25.122 strongly supports this conelusion. 36 The history of the litigation exception thus indicates the exception was intended to apply only when the requestor is involved in litigation “involving a public agency.” 37

Former Attorney General Bruce Botelho reached the same conclusion in a 1994 informal opinion. 38 He referred to the legislative history, citing Attorney General Bally’s bill review letter and former 6 AAC 95.150. 39 He further explained that “[t]here are legitimate public policy reasons for differentiating between record requests made by parties involved in litigation against the state and those made by other parties”:

When the state is involved in the litigation, requiring the discovery rules to apply to documents sought by the other side ensures that the state is not disadvantaged in litigation by its public records statutes.... [I]t ensures equal footing for the state. This analysis simply does not apply when the state isn’t a party to the litigation.[ 40 ]

Attorney General Botelho briefly addressed this issue again in a formal opinion to the Commissioner of the Department of Public Safety on “requests for public release of ... law enforcement records.” 41 There too he concluded that the litigation exception applies only to “records sought in conjunction with litigation involving the State.” 42 He explained that the purpose of the exception was to “ensure[ ] that the state and its agencies are given the same protections afforded all litigants by the court rules governing discovery even when the documents sought are public records.” 43 We find the reasoning in these opinions persuasive, and the State does not repudiate the opinions or otherwise attack their reasoning. 44 '

Finally, we note that we endorsed Basey’s narrow interpretation of AS 40.25.122 in Brady v. State, 45 We wrote that the statute “limits access to otherwise public records by ‘person[s] involved in litigation’ with the State.” 46 That case did not present the question whether the litigation exception applies only when the requestor is involved in litigation with a public agency or applies more broadly, 47 and thus our interpretation of AS 40.25.122 in Brady is perhaps dictum. 48 Nonetheless, it is significant that the narrow reading of the litigation exception seemed most natural to this court. 49

The litigation exception in AS 40.25.122 thus applies only when the request- or is involved in litigation “involving a public agency.” The State failed to establish Basey was involved in such litigation. Basey’s complaint refers to his criminal case, but that ease is being prosecuted by the federal government, not the State. The federal government is not a “public agency” as defined in the Public Records Act. 50

The State requested that the superior court take judicial notice of Basey’s civil ease, 51 but no public agency is a party to that case either. Rather, Basey’s civil complaint names a number of individual' state officials as defendants, and explicitly states Basey is suing them “[i]n their individual capacities.” 52 Basey brought his complaint pursuant to 42 U.S.C. § 1983 and Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 53 neither of which provides for a cause of action against a state or state agency. 54

The State has not argued that Basey’s civil or criminal case “involv[es] a public agency” in some way other than a public agency being a party to the case, and we do not address this possibility. In other words, we decline to decide whether a public agency might be involved in litigation for the purpose.of AS 40.25.122 even though it is not a party to the litigation, and we decline to decide whether the State has^ shown any such involvement. We conclude it was error for the superior court to grant the State’s motion to dismiss pursuant to AS 40.25.122.

B. Law-Enforcement-Interference Exception (AS 40.25.120(a)(6)(A))

The State invokes an additional exception to the Public Records Act. Alaska Statute 40.25.120(a)(6)(A) provides that law enforcement records are not subject to production under the’ Public Records Act if disclosing, them “could reasonably be expected to interfere with enforcement proceedings.” Although Basey is involved in an enforcement proceeding as a defendant in a federal criminal action, he contends the State failed to show that disclosure of the requested records could reasonably be expected to interfere with the federal proceeding. Echoing the argument that it made in the superior court, the' State responds — without elaboration— that AS 40.25.120(a)(6)(A) allows AST “to decline to disclose the [requested records] in light of their being the subject matter of the pending criminal prosecution.”

We need not decide today precisely what kind of showing the State must make to invoke AS 40.25.120(a)(6)(A). It suffices to say the State cannot invoke the law-enforcement-interference exception merely by pointing to a pending criminal ease involving the requestor. If the legislature had intended to create a per se exception that applies any time the requestor is being prosecuted — even by the federal government and not the State — the legislature ■ would not have required that the requested records be “reasonably ... expected to interfere” with the prosecution. 55

Based on the record before the court, dismissing Basey’s complaint pursuant to AS 40.25.120(a)(6)(A) was error. Basey’s complaint referred to his federal criminal prosecution, but nothing in the complaint shows “beyond doubt” that disclosure of the requested records could reasonably be expected to interfere with the federal criminal case. 56 Even if we assume that the superior court converted the motion to dismiss into one for summary judgment, 57 it was-.error to grant summaiy judgment on the basis of this exception. 58 The State did not offer any evidence showing — and. did not even allege— that disclosure of the requested records could reasonably be expected to interfere with enforcement proceedings. 59

V. CONCLUSION

Because the State failed to show that the litigation exception or the law-enforcement-interference exception applies, we REVERSE the superior court’s grant of the State’s motion to dismiss and REMAND for further proceedings consistent with this opinion.