Privacy vs. public records in the bikini barista case

EVERETT — A Snohomish County judge was asked Wednesday to determine how far the city of Everett must go in providing public access to surveillance videos of bikini baristas behaving badly.

The city is being sued by Arthur West, of Olympia. A prolific requester of public records around the state, West objects to Everett’s decision to allow him to view the videos at police headquarters while refusing to provide him with copies.

West on Wednesday asked Superior Court Judge George Appel to find that the city has violated the state’s public records act.

The city, meanwhile, sought a court order that would essentially have given Appel’s blessing to what it sees as a novel attempt to satisfy legitimate public interest in records without helping what it calls “nonconsensual pornography” reach the Internet.

“The public records act is meant to balance the right to privacy and government accountability,” assistant city attorney Ramsey Ramerman said.

Appel listened and asked questions. He’ll announce his decision later.

Regardless of the ruling, an appeal is likely because of the issues raised by the case, West said during the hearing.

The videos, some 5.3 terabytes in all, were gathered as part of a 2013 police investigation into public corruption and prostitution at bikini espresso stands in Everett and elsewhere in Snohomish and King counties.

The investigation led to felony convictions for two women who admitted they operated the stands as drive-through brothels. The owner hauled in millions of dollars each year and kept a separate set of books to hide her illegal activity, according to court papers.

Last week, Darrell O’Neill, 60, a former Snohomish County sheriff’s sergeant, pleaded guilty to felony conspiracy to commit money laundering and official misconduct. He admitted to providing confidential information about undercover police operations in exchange for sexual favors, records show.

The videos were pulled from surveillance cameras, including some posted within the stands and others that were set up during the investigation by police and the FBI.

The FBI has told the city it would prefer the videos it helped gather not be released. It suggests that they instead should be subject to the federal Freedom of Information Act. But those videos also likely contain some of the images that are of greatest public interest, including O’Neill’s conduct at the stands, Ramerman said.

City officials did not make those videos ready for release while O’Neill’s case was heading to trial, but now that he’s pleaded guilty, they plan to take another look, Ramerman told the judge. “We will have to figure out what to do with those,” he said.

West told the judge he’s most interested in what the videos show about police conduct during the investigation. He suggested that the city simply cut from the videos all of the sexually explicit material.

That’s not easily accomplished, Ramerman said. In an earlier declaration filed in the case, the attorney described in clinical terms some of the acts documented on the videos. On video shot over just four days, there were approximately 45 incidents when breasts were flashed or fondled and nearly five dozen instances of exposed genitals.

In court papers, Ramerman described the no-copies stance as a form of redacting information, withholding the digital file as a means to prevent the videos from winding up on the Internet.

West countered that state law requires governments to provide access to and copies of public records and that there is no legal grounds for what he calls Everett’s “peek-a-boo” exemption.

West also maintained the city should be blocked from raising privacy concerns at this point. In 2010, the city rejected that argument when it supported disclosure of nearly nude photographs of baristas taken by police during a separate investigation.

Ramerman told the judge the city learned from that experience, particularly how swiftly the images wound up online, where they still can be viewed today.

In his pleadings, Ramerman pointed to examples around the country where courts and lawmakers have found themselves balancing access to sensitive information. The frenzy over the death of NASCAR’s Dale Earnhardt, for example, led to legislation that exempts death scene photos from disclosure, but allows reporters to view them and seek copies based on a showing of need, he wrote.

Ramerman also pointed to a U.S. District Court judge’s Aug. 10 order making permanent an earlier ruling that blocked a Pierce County man from using the state’s public records law to obtain the true names, addresses and other information gathered from licensed strip club workers.

In the Pierce County case, federal Judge Ronald Leighton agreed with attorneys for the dancers and club managers that their privacy and their rights to free expression could be harmed if the licensing information was released.

Although the ruling isn’t published law, Ramerman quoted from the Tacoma-based judge’s order. Leighton wrote that Washington’s records act “was never intended to facilitate spying or stalking, or to enable a host of other nefarious goals.”

Instead, the judge said, it “is a tool to enable citizens to monitor their government. It is not a mechanism for them to examine, exploit, or endanger each other.”

Scott North: 425-339-3431; north@heraldnet.com. Twitter: @snorthnews

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