Judge permanently blocks release of unredacted records on SFCC’s Darren Pitcher
Fri., March 30, 2018
A judge signed an order Friday permanently barring the Community Colleges of Spokane from releasing unredacted records of the sexual harassment investigation that led Darren Pitcher to resign as acting president of Spokane Falls Community College.
Specifically, Spokane County Superior Court Judge Annette Plese barred the college system from disclosing the names of Pitcher’s accusers. In response to requests by The Spokesman-Review, KXLY and the Inlander, CCS released nearly 1,500 pages of records related to the investigation on Monday, but the names of alleged victims and witnesses, and other identifying details, were redacted.
By signing the order, Plese sided with attorney Nicholas Kovarik, who represented 11 women involved in the investigation, including the one who filed the formal complaint in January. Those women are referred to in court records as Jane Does Nos. 1 through 11.
For the past two weeks, Kovarik has argued that disclosing his clients’ names would humiliate them and create “a massive chilling effect” that would prevent college employees from reporting future instances of sexual harassment.
The Spokesman-Review generally does not publish the names of alleged victims or witnesses of sexual assault or sexual harassment without their permission, although such information can aid in the newsgathering process.
Lawyers for The Spokesman-Review and KXLY argued for the release of unredacted records, citing the Washington Public Records Act, the First Amendment and the role of news organizations in holding public institutions, like CCS, to account. The newspaper and the TV station share no business affiliation.
“There’s many public policy reasons why disclosure of the names is necessary for the people of the state to hold this college accountable,” Casey Bruner, an attorney representing The Spokesman-Review, said Friday before Plese announced her decision. Bruner said that “free and open examination of public records is in the public interest even though such examination may cause inconvenience or embarrassment to public officials or others.”
Bruner primarily argued that victims and witnesses should be separated into two categories. While in some similar cases it may be appropriate to withhold a victim’s name, he said, witness statements do not meet the Public Records Act definition of “private” employee information.
“They themselves didn’t participate in any conduct,” Bruner said. “They reported what they saw in a public space that related to other people.”
Bruner also said the allegations against Pitcher don’t rise to a certain legal definition of “highly offensive” and thus are subject to full public disclosure. And he pointed to the Washington Supreme Court’s 2013 ruling in Sargent v. Seattle Police Department, which states: “A general contention of chilling future witnesses is not enough to exempt disclosure.”
While most of the alleged victims and witnesses in the Pitcher case appear to work in high-level administration posts, the redacted records mask their precise roles, the departments they oversee and where they fall in the chain of command. The redactions, Bruner said, “make it impossible to determine the nature and extent to which the misconduct has affected the college and the students.”
He also pointed out that several unnamed witnesses questioned the credibility of Jane Doe No. 1, who filed the formal complaint. The redacted records repeatedly state that she was concerned about her job security.
The records also describe wrongdoing that’s not directly related to the sexual harassment allegations, without naming everyone involved.
“There is also evidence of multiple staff members – including some of the Jane Does – violating Washington law by deleting public records, including their instant messages,” Bruner said.
Meanwhile, Kovarik, the Jane Does’ attorney, cited the state Supreme Court’s 2011 ruling in Bainbridge Island Police Guild v. City of Puyallup, which prevented the disclosure of “unsubstantiated” sexual assault allegations against a police officer.
“He was an individual who was accused of committing sexual misconduct within the course and scope of his work,” Kovarik said. “If someone who is accused of sexual misconduct is afforded the protection under (the law), surely the victims and the witnesses should be afforded the same protection.”
Bruner argued that the Pitcher case is different, and the precedent set in the Bainbridge Island case should not apply. Based on the redacted records, he said, the allegations against Pitcher can hardly be called “unsubstantiated.”
Pitcher, who has repeatedly denied most of the allegations, did not respond to a message seeking comment Friday.
Plese ultimately said the allegations against Pitcher are indeed “highly offensive,” and that “there is no public interest” in disclosing the names of his accusers.
In a phone call, Toby Nixon, the president of the Washington Coalition for Open Government, said he didn’t believe the ruling follows the relevant statute or case law.
“I think that the judge made an error,” Nixon said.
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