Public has right to copies of bikini barista videos, judge rules

EVERETT — The city of Everett can’t try to control what happens to police surveillance videos of misbehaving bikini baristas by allowing people to view the recordings but refusing to make copies, a Snohomish County judge ruled Monday.

The city acknowledges that the videos, which show nearly nude coffee-stand workers engaged in a variety of lewd behaviors, are subject to disclosure under the state’s open records law. Everett has resisted a demand for copies of the videos, however, arguing that it has a duty to balance privacy rights by trying to limit online distribution of what it considers “nonconsensual pornography.”

In a written decision, Superior Court Judge George Appel noted the city maintains its “inspect-but-don’t copy” policy is “a form of redaction of the records,” designed to protect the baristas’ privacy interests.

“But that just is not so,” Appel wrote. “The Public Records Act requires inspection and copying. The City’s argument would seem to call for the redaction of the statute, not the records. The court cannot read the words ‘and copying’ out of the statute.”

The city is being sued by Arthur West, of Olympia. A prolific requester of public records around the state, he maintains that Everett violated the state’s records law when officials told him he could view roughly 5.3 terabytes of videos at police headquarters but wouldn’t be provided copies.

West called that a “peek-a-boo” exemption of the city’s own creation.

The videos are part of a 2013 police investigation into public corruption and prostitution at certain bikini espresso stands in Everett and elsewhere in Snohomish and King counties. The stands operated as drive-through brothels, with customers paying baristas for sexually explicit conduct, primarily flashing private parts, but also exchanging sex for money.

So far, three people have pleaded guilty to felonies. The owner and her top manager have admitted the businesses hauled in millions of dollars each year, with separate books being kept to help hide the illegal activity. Meanwhile, 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. Sentencings are scheduled in January.

In his ruling, Appel said the city doesn’t have state or federal law on its side when it asserts that, in this situation, privacy trumps the public records act.

It’s true that the city released police photographs from an earlier investigation of bikini baristas that wound up being posted online, where they can be viewed today, the judge noted. He assumed the same would happen with videos, but added “this is partly due to the way the city chooses to interpret (the records act), a law drafted long before the proliferation of the Internet.”

While state administrative code encourages electronic records to be released in their native formats, the public records law does not mandate the same, Appel said.

The city could print out hard copies of specific frames from the videos after the person inspected the files, Appel wrote. That would avoid a possible violation of the records act and also diminish the likelihood of the images finding their way online, the judge said.

West on Tuesday said he is mainly interested in obtaining the videos to review how police interacted with the baristas. He didn’t have an immediate reaction to Appel’s hard-copy alternative.

“This ruling confirms that the city was operating under some profound misunderstandings as to the scope of disclosure the Public Records Act requires,” he said.

Assistant city attorney Ramsey Ramerman said city officials still were studying the ruling Tuesday. While Appel rejected the arguments the city made regarding privacy and redaction, the judge understood the city’s dilemma, Ramerman said.

The court’s support for releasing printed copies of individual screen shots from the video “ends up giving about 90 percent of what the city was trying to achieve,” he said.

“It is clear the judge was understanding our concerns; he simply thought it could be achieved in a way that was a little different” than what the city had outlined, Ramerman said.

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

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