OFFICES AND OFFICERS ‑- COUNTY ‑- CITY ‑- CRIMES ‑- RECORDS

OFFICES AND OFFICERS ‑- COUNTY ‑- CITY ‑- CRIMES ‑- RECORDS

The provisions of § 4 (1), chapter 202, Laws of 1973, 1st Ex. Sess., do not prohibit persons obtaining specific investigative information regarding organized crime activities by reason of their public employment with the state of Washington or its political subdivisions from divulging that information to nonlaw enforcement agencies such as mayors, city councils, licensing departments, legislative committees or other regulatory bodies when called upon to do so in the performance of their official functions and duties.

                                                              - - - - - - - - - - - - -

                                                                 January 16, 1974

Honorable Christopher T. Bayley
Prosecuting Attorney
King County Court House
Seattle, Washington 98104

                                                                                                                   Cite as:  AGO 1974 No. 1

Dear Sir:

            By letter previously acknowledged you have asked for an opinion of this office upon a question which we paraphrase as follows:

            Do the provisions of § 4 (1), chapter 202, Laws of 1973, 1st Ex. Sess., prohibit persons obtaining specific investigative information regarding organized crime activities by reason of their public employment with the state of Washington or its political subdivisions from divulging that information to nonlaw enforcement agencies such as mayors, city councils, licensing departments, legislative committees or other regulatory bodies when called upon to do so in the performance of their official functions and duties?

            We answer this question in the negative for the reasons set forth in our analysis.

             [[Orig. Op. Page 2]]

                                                                     ANALYSIS

            The principal purpose of chapter 202, Laws of 1973, 1st Ex. Sess., which became effective when signed into law by the governor on April 26, 1973, was the establishment of an organized crime intelligence unit within the Washington State Patrol.  See, §§ 1-3, together with §§ 5 through 8.  The term "organized crime" is defined in § 2 as meaning:

            ". . . those activities which are conducted and carried on by members of an organized, disciplined association, engaged in supplying illegal goods and services and/or engaged in criminal activities in contravention of the laws of this state or of the United States."

            In addition, however, in an apparent attempt to guard against improper disclosures of information relating to organized crime the legislature included within this law the following provisions, in § 4:

            "(1) On and after the effective date of sections 1 through 8 of this act it shall be unlawful for any person to divulge specific investigative information pertaining to activities related to organized crime which he has obtained by reason of public employment with the state of Washington or its political subdivisions unless such person is authorized or required to do so by operation of state or federal law.  Any person violating this subsection shall be guilty of a felony.

            "(2) Except as provided in section 3 of this act, or pursuant to the rules of the supreme court of Washington, all of the information and data collected and processed by the organized crime intelligence unit shall be confidential and not subject to examination or publication pursuant to chapter 42.17 RCW (Initiative Measure No. 276).

             [[Orig. Op. Page 3]]

            "(3) The chief of the Washington state patrol shall prescribe such standards and procedures relating to the security of the records and files of the organized crime intelligence unit, as he deems to be in the public interest with the advice of the governor and the board."

            Your question pertains to the effect which the prohibition contained in subsection (1) of this section is to be deemed to have upon the ability of law enforcement personnel obtaining "specific investigative information pertaining to activities related to organized crime" in the course of their official duties with the state or its political subdivisions lawfully to divulge that information to their mayors, city councils, municipal licensing departments, legislative committees or other regulatory bodies when called upon to do so ‑ also as a part of their official functions and duties.  Noting that the prohibition is absolute except as qualified by the phrase "unless such person is authorized or required to . . . [divulge the information] by operation of state or federal law . . .," our task in answering becomes that of determining the meaning and scope of this exception.

            We have little doubt but that a court in looking at the language of the phrase in question would find it ambiguous.  On the one hand, narrowly construed, it can be taken to mean that a person officially in possession of the kinds of information to which the statute applies can only divulge that information to any other individual or agency when authorized or required to do so by someexpress provision of state or federal law.  This would mean, for example, that unless the police chief of a certain city could point to a law specifically authorizing or requiring him to do so he could not lawfully even brief his own mayor or city council on the status of organized crime within its jurisdiction.

            Or, on the other hand, read more broadly the same language can be construed to mean that such disclosure is lawful not only on the basis of this sort of express authorization but pursuant to implied authority as well ‑ including the implied authority of any law enforcement officer to do all of those things necessary for the proper performance  [[Orig. Op. Page 4]] of his official duties.  If thus construed, the statute would only operate to prohibit those disclosures of officially obtained "specific information . . . related to organized crime" that might be made by a person acting outside of the course of performance of his official duties and functions ‑ including those of the public employment which resulted in his coming into possession of the specific intelligence information involved in the first place.

            We acknowledge that as an exception to the general prohibition which precedes it the language of § 4 (1), supra, is, under one well-established rule of construction, required to be strictly construed ‑ which would tend to support a reading of it as only permitting disclosure in response to some express statutory authorization or mandate.  State v. Robinson, 67 Wash. 425, 121 Pac. 848 (1912).  But by the same token, we also note that the entire statute is a criminal statute ‑ a violation of its provisions being declared a felony ‑ which means that it also is, in its entirety, to be strictly construed against the state and in favor of an accused.  State v. Thompson, 38 Wn. 2d 774, 232 P. 2d 87 (1951).  And, as with any statute it is to be so construed, if possible, as to avoid any gross injustice or absurdity.  Wilson v. Lund, 74 Wn. 2d 945, 447 P. 2d 7l8 (1968).

            An additional rule of construction which appears applicable here is that which requires every word, phrase, clause and sentence of an act to be given meaning or effect if it is possible to do so.  State ex rel. Washington Water Power Co. v. Murray, 181 Wash. 27, 42 P.2d 429 (1935).  In the case of § 4 (1), chapter 202, supra, the permission to divulge is expressed in terms of ". . . unless such person is authorized or required to do so by operation of state or federal law."  (Emphasis supplied.)  In other words, not necessarily by the law itself but by its operation.  While it is possible to speculate that this language was used only for the purpose of identifying a lawfully issued subpoena as being included among the types of governmental mandate which would justify and excuse an otherwise unlawful disclosure, it seems to us also to hint of an ability to resort to implied authority as well ‑ more so, at least, than if the phrase "operation  [[Orig. Op. Page 5]] of" had not been included in the statute.1/

             Another factor which tends, in our judgment, to support this broader view of the scope of the exception which we are here considering is the total absence, within chapter 202 itself, of anyself-contained authorizations for disclosure of "specific information" related to organized crime by anybody other than by or in exchange with the state organized crime intelligence unit created by § 1 of the act.  See, § 3 authorizing this unit, interalia, to ". . . furnish and exchange pertinent intelligence data with law enforcement agencies and prosecutors . . ."; and § 8, which allows the chief of the state patrol, within which the intelligence unit operates, to make such information available to the organized crime intelligence committee of the legislature2/ under certain specified circumstances.  Thus ifexpress authority were to be required in order to permit a lawful disclosure under § 4 (1), supra, by or between any other persons or agencies officially in possession of this type of information, it would have to be found somewhere else but in the subject act.