Public records battle grew from a father's frustration

When David Koenig learned in 1996 that his 10-year-old daughter had been molested, he felt like many parents in his situation: angry about what happened and sick that he hadn't been able to stop it.

It was a feeling, the Federal Way father said, "of utter helplessness."

Turning helplessness into action, Koenig asked the Des Moines Police Department for a copy of the report. But after repeated requests, the department refused, saying it had to protect the victim's privacy.

Since then, the issue has exploded into a public-records battle that will be argued tomorrow in front of the state Supreme Court. It will pit the promise of access to government records in sex-abuse cases against the privacy rights of victims. The case already has resulted in a lower-court ruling that satisfies neither open-records advocates nor those who wish to keep them closed.

Now, both sides are worried about what the law will look like by the time the court is through. Will victims lose their privacy? Will abusers — especially in high-profile cases — be the real beneficiaries? Will the public and media still be able to watchdog the work of government investigators?

Koenig, meanwhile, still is astonished that his seemingly straightforward request has turned into a legal odyssey.

A request for records

After he learned that his daughter had been molested by his ex-wife's new husband, Koenig said he felt he needed to know what had happened.

At the same time, he didn't want to press his daughter for information that might be painful to discuss. The girl did not object to being identified in this story as Koenig's daughter but asked that her name not be printed. The Seattle Times generally does not name sex-abuse victims.

"I couldn't just be a blind advocate for her," Koenig said. "I just thought, I'm a parent — they'll want me to be a participant."

Getting the facts was particularly crucial, Koenig felt, because the girl's mother initially believed her husband was innocent.

In turning to Washington's Public Disclosure Act, Koenig had two major hurdles. First, government agencies are required to treat all requests for records the same. In other words, it didn't matter whether he was a parent or a reporter or anyone else.

In addition, the law says information that identifies child victims of sex abuse should not be made public. Police departments often handle this by blacking out the child victim's name and other identifying information before releasing the report.

But Koenig mentioned his daughter's name in every request, so police couldn't protect the girl's identity by blacking out her name, said Linda Marousek, the Des Moines city attorney. As a result, the city withheld the reports entirely.

"The city wasn't doing this to be mean to Mr. Koenig or to keep information about his daughter away from him. The city was doing this to protect the privacy of a little girl," Marousek said.

To Koenig and his attorney, the response made no sense. "A rule that says you can't have [the reports] if you know what you're talking about just will not work," Koenig's attorney William Crittenden said.

For example, he said, it might allow police to withhold criminal reports on public figures if the name of the victim is also publicly known, as in cases of abuse by clergy. And what if the perpetrator himself publicly identifies the victim — could that prevent the records' release?

To attorney Michele Earl-Hubbard, the danger in this line of thinking is that "the people who have the most direct interest will be told you can't have the records because you'll be able to figure out who the players are." Earl-Hubbard filed a friend-of-the-court brief on behalf of Allied Daily Newspapers (of which The Seattle Times is a member), the Washington Coalition for Open Government and other open-records advocates.

The case goes to court

In 1999, Koenig filed suit against the city of Des Moines, demanding the records and accusing the city of violating the state Public Disclosure Act. Shortly before trial, the city relented, saying it would provide the reports under a state statute that says parents may grant permission to release records involving their children.

By this point, the man who had abused Koenig's daughter had pleaded guilty to the lesser charge of communication with a minor for immoral purposes. (He entered an Alford plea, which meant he was not admitting guilt but conceded that a jury was likely to convict him based on the evidence.)

Koenig had been asking for the records for three years and felt like the city was playing games.

"I didn't trust them," he said.

In 2001, the trial court ruled in Koenig's favor, saying that not only should he get the records but also that the city should pay fines for withholding them. The city appealed.

The Court of Appeals then came up with a new answer to the question of child-sexual-abuse records. The records should have been released to Koenig, the court said. But, the judges reasoned, if privacy-rights questions arise in sex-abuse cases, then blacking out the victims' name and the details of the abuse would best protect them.

Open-records advocates see this as unworkable. Without the details, how could the public know exactly what happened, whether police did a good job of investigating, and even whether the victim was telling the truth?

The city appealed to the state Supreme Court.

Focus on the law's purpose

While Koenig's opponents — which have included the American Civil Liberties Union, the Washington Association of Prosecuting Attorneys, victims-rights groups and others — have problems with the Court of Appeals ruling, they're most focused on the rights of victims and on the broader purpose of the Public Disclosure Act.

The act, Marousek said, was designed to allow taxpayers to check up on their government on matters of "legitimate" public interest. But Koenig is after something entirely different.

"The request was for one child's records," Marousek said, and that child should be protected. "Just because we have to deal with the government to get police to prosecute a crime doesn't mean everyone in the world should get to know about it," she said.

Meanwhile, the prosecutors group has argued that releasing records in cases like this will affect criminal investigations; the ACLU is concerned about privacy rights; victims groups worry that releasing such records would negatively affect victims. In addition, it might make them more reluctant to come forward.

Marousek questions why Koenig has continued to fight, years after the issue has become moot. And she's concerned about the fines the city may be assessed, considering how long this battle has gone on. The public-records law mandates penalties of $5 to $100 per day for wrongfully withholding records.

Koenig has three additional public-records lawsuits over police records in unrelated cases, and he's asking for fines in each of them. He says the cases involve a former colleague of his who was charged with a crime but claimed to be not guilty; Koenig said he wanted to see the full reports to determine whether his colleague was telling the truth.

And how has the drawn-out case affected Koenig's daughter? Initially, she didn't want to tell her father what had happened. More recently, she said she has come to better understand what her father is trying to do and supports him.

Koenig is more circumspect, saying, "[She] thinks I'm being obsessive."

And is he?

"Absolutely," he said.

Seattle Times news researchers Miyoko Wolf and David Turim contributed to this report.

Maureen O'Hagan: 206-464-2562 or mohagan@seattletimes.com