Appeals court reverses decision on SFCC sexual harassment records

A state appeals court has reversed its own decision requiring Spokane Falls Community College to release unredacted records related to sexual misconduct allegations against the school’s former acting president.

In a unanimous opinion, a three-judge panel of Washington’s Court of Appeals Division III said a new Public Records Act exemption can retroactively apply to the documents in question.

The decision means the Community Colleges of Spokane will continue to withhold the names of alleged victims and witnesses who were interviewed as part of the investigation into Darren Pitcher, who resigned as SFCC’s acting president in spring 2018.

Pitcher was accused of “ogling” female subordinates, commenting on their physical appearance and using objectifying terms such as “sweet cheeks.” He also allegedly blocked a woman from leaving his office before exposing his genitals to her. He denied having a sexual encounter with any of his co-workers but acknowledged making “unprofessional” remarks in texts and instant messages sent via phones and computers belonging to the college.

Shortly after he resigned, CCS provided hundreds of pages in response to public records requests by The Spokesman-Review and other local news organizations. But the college district redacted the names and identifying information of alleged victims and witnesses after attorney Nicholas Kovarik filed an injunction on their behalf. In court records, they are referred to as Jane Does Nos. 1 through 11.

The Spokesman-Review generally does not publish the names of alleged victims or witnesses of sexual assault or harassment without their permission, although such information can aid in the newsgathering process and ensure a clear understanding of allegations.

In Spokane County Superior Court, lawyers for the newspaper 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.

Superior Court Judge Annette Plese sided with Kovarik, who 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 Court of Appeals reversed Plese’s decision in June, concluding the names of Pitcher’s accusers must be disclosed, in part because Kovarik did not demonstrate their allegations were “personal information” contained in protected personnel files.

“Free and open examination of public records serves the public interest, even though such examination causes inconvenience or embarrassment to public officials or others,” Chief Judge George Fearing wrote at the time. “The public has a right to know who their public employees are and when those employees are not performing their duties.”

A month later, Kovarik asked the appeals court to reconsider, citing House Bill 2020, which Gov. Jay Inslee had recently signed into law. The bill created an exemption in the Public Records Act for the names of accusers and witnesses contained in investigation records.

“Because the names of the Jane Doe respondents have yet to be released, we hold that the amendment applies prospectively to the public records request pending before the court,” Fearing wrote in the new appellate decision.

Judges Rebecca Pennell and Robert Lawrence-Berrey concurred.