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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. State of Alaska, Department of Corrections v. Kerry Porche (4/30/2021) sp-7523
Notice: This opinion is subject to correction before publication in the P ACIFIC REPORTER.
Readers are requested to bring errors to the attention of the Clerk of the Appellate Courts,
303 K Street, Anchorage, Alaska 99501, phone (907) 264-0608, fax (907) 264-0878, email
corrections@akcourts.us.
THE SUPREME COURT OF THE STATE OF ALASKA
STATE OF ALASKA, )
DEPARTMENT OF CORRECTIONS, ) Supreme Court No. S-17606
)
Appellant, ) Superior Court No. 3AN-18-07739 CI
)
v.
) O P I N I O N
)
KERRY PORCHE, ) No. 7523 - April 30, 2021
)
Appellee. )
)
Appeal from the Superior Court of the State of Alaska, Third
Judicial District, Anchorage, Erin B. Marston, Judge.
Appearances: Matthias R. Cicotte, Assistant Attorney
General, Anchorage, and Clyde "Ed" Sniffen, Jr., Attorney
General, Juneau, for Appellant. Clinton M. Campion, Sedor,
Wendlandt, Evans & Filippi, LLC, Anchorage, for Appellee.
Before: Bolger, Chief Justice, Winfree, Maassen, Carney,
and Borghesan, Justices.
CARNEY, Justice.
I. INTRODUCTION
After the Department of Corrections (DOC) investigated an allegation that
a probation officer was providing special treatment in return for sexual favors and found
it to be unsubstantiated, the probation officer sought the investigation records. DOC
denied his request and the probation officer appealed to the superior court, which
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reversed the denial and ordered the records released because the allegation had not been
substantiated. DOC appeals. We reverse the superior court's order because the records
are shielded from disclosure by the invasion of privacy exemption to the Public Records
Act.
II. FACTS AND PROCEEDINGS
A. Facts And Administrative Proceedings
In May 2018 a supervisor in DOC's Professional Conduct Unit informed
Kerry Porche by letter that DOC had received a report that Porche was "providing
special treatment to a probationer in exchange for sexual acts." The supervisor explained
that DOC had investigated the allegation, found it to be unsubstantiated, and closed the
investigation.
Porche wrote back two days later, requesting copies of all records from the
allegation and investigation "[u]nder the Alaska Open Records Law." The supervisor
denied the request, citing DOC's policy of keeping investigative records confidential 1
and informing Porche of his right to appeal. Porche appealed to the DOC Commissioner,
who upheld the denial. The Commissioner's letter relied on
AlaskaStatute40.25.120 [Alaska'sOpenRecordsAct]which
states the request may be denied if production of the records
could reasonably be expected to constitute an unwarranted
invasion of the personal privacy of a suspect, defendant,
victim[,] or witness.
Releasing the requested information to . . . Porche would
easily identify the parties that contacted DOC about the
matter, as well as the identities of potential witnesses. The
1 Citing DOC policy, the supervisor's letter listed as "confidential and not to
be disclosed except by Court order: Recordings and transcriptions of interviews
conducted by PCU staff; investigative reports written by PCU staff; names and personal
information of victims and informants."
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vehemence with which . . . Porche has pursued this matter
further raises concerns that should the report be released it
could endanger persons on probation, their families, or
friends.
B. Superior Court Proceedings
Porche appealed to the superior court. Before he filed his opening brief,
Porche obtained a redacted copy of DOC's investigative records from his union.
Porche first argued that DOC erred by relying on the Open Records Act's
exemption for invasion of privacy. He emphasized that Alaska's "strong commitment
to ensuring broad public access to government records" requires that statutory
2 Porche claimed that the exemption could not apply
exemptions be narrowly construed.
because none of the listed categories of individuals entitled to protection - suspect,
defendant, victim, or witness - existed in his case. Porche, as the suspect, waived any
objection he had to disclosure of the records. And he argued that because victims "are
defined as persons against whom an offense has been perpetrated . . . . a person cannot
be treated as a victim unless a criminal offense has been perpetrated." Because the
allegations were not substantiated, he argued, there was no crime. And without a crime,
Porche insisted, there could be no defendant, victim, or witness.
Porche also argued that DOC had not segregated non-disclosable
information from information it was required to disclose; he urged the court to order
disclosure of all the records. Finally, he disputed the Commissioner's finding that
Porche "posed a danger to persons on probation, their families or friends."
2
Basey v. State, Dep't of Pub. Safety, Div. of State Troopers, Bureau of
Investigations (Basey I), 408 P.3d 1173, 1176 (Alaska 2017).
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DOC argued that it properly relied on the law enforcement exemption from
3
disclosure
and quoted two specific provisions: Records could be properly withheld if
they "could reasonablybe expected to constitute an unwarranted invasion of the personal
4 or if they "could reasonably be
privacy of a suspect, defendant, victim, or witness"
expected to disclose the identity of a confidential source."5 DOC claimed that the
records "would easily reveal the identity of 'the parties that contacted DOC about the
matter, as well as the identities of potential witnesses' " and that "[t]here is a strong
public interest in not disclosing the identities of confidential informants."
DOCalso argued that by citing AS 40.25.120 in its entirety, which contains
the law enforcement exemption, its denial relied on both the unwarranted privacy
exemption in (6)(C) and the confidential source exemption in (6)(D). And it argued that
the Commissioner's reasoning for denying Porche's request was relevant to several of
the law enforcement exemption's subsections.
DOC additionally asserted that disclosing the records would have
"a 'chilling effect' that [would] make[] it more difficult for other potential informants to
trust that their identity will not be similarly disclosed." According to DOC, accepting
Porche's argument that an unfounded allegation negates the privacy protections in the
law enforcement exemption "would place confidential informants in a cruel dilemma
where if their accusations are not believed their identity would be revealed." Finally,
DOC asserted that Porche's argument that DOC failed to segregate disclosable and non-
3 AS 40.25.120(a)(6) shields from disclosure "records or information
compiled for law enforcement purposes" that fall into seven enumerated categories.
4 AS 40.25.120(a)(6)(C).
5 AS 40.25.120(a)(6)(D).
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disclosable information was moot because Porche had received a redacted copy of the
records, which DOC submitted as a supplement to the record. 6
In his reply, Porche reiterated his argument that because the allegations
were unsubstantiated, there was no crime and the records could "not contain the
identities of a victim." He also argued that if the allegations had been substantiated and
had indicated he had committed a crime, he would have been entitled, as a criminal
defendant, to know the identities of the victim and witnesses.
Porche contended that DOC was not entitled to rely on the confidential
source exemption because DOC had raised it for the first time on appeal. He argued that
DOC had not mentioned the exemption in its initial denial or the Commissioner's
decision and that the record did not contain any policies, procedures, or guidelines that
related to confidential informants.
Finally, Porche disagreed that disclosure of the records would have a
chilling effect. He cited the policy of allowing "broad access to public records" and
argued that "fundamental requirements of fairness" and his "right to determine whether
he was a victim of the crime of knowingly providing false information to a peace officer"
limited DOC's ability to withhold the informant's name.
The superior court agreed with Porche and held that DOC had erred when
it withheld the records under the invasion of privacy clause of the law enforcement
exemption. It adopted Porche's argument that "since there was no crime, there [was] no
victim or witness in need of privacy protections." And the court rejected DOC's
6 DOC is correct. Because Porche obtained a redacted copy of the
investigative report from his union the issue is moot. Vanek v. State, Bd. of Fisheries ,
193 P.3d 283, 287 (Alaska 2008) ("We refrain from deciding a question where the facts
have rendered the legal issues moot. A claim is moot if it has lost its character as a
present, live controversy . . . ." (footnote omitted)).
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argument that the confidential source exemption applied because DOC had not raised the
argument in the administrative proceedings and the argument was not a part of the
agency record. Nevertheless, the court concluded that "there was not a confidential
informant in this case" because the allegations were third-hand and "did not contain
sufficient information for [DOC] to conduct an administrative investigation."
The court held that Porche was "entitled to the additional records [DOC]
has segregated as nondisclosable or redacted" and ordered DOC to "disclose the entire
investigation file . . . including those portions that were previously redacted and audio
recordings that accompanied the investigation."
DOC appeals.
III. STANDARD OF REVIEW
"When the superior court is acting as an intermediate court of appeal in an
administrative matter, we independently review the merits of the agency or
7 There are four standards of review that can apply to
administrative board's decision."
an administrative appeal.8
"[T]he 'substitution of judgment test' governs questions of
9 In this case the dispute centers around whether the
law when no expertise is involved."
invasion of privacy or confidential source exemptions to the Public Records Act apply
to records concerning allegations that are found to be unsubstantiated. Porche has
argued, and DOC does not dispute, that DOC did not rely on agency expertise in denying
7 Griswoldv.HomerCityCouncil , 310 P.3d 938, 940 (Alaska2013) (quoting
Shea v. State, Dep't of Admin., Div. of Ret. & Benefits , 267 P.3d 624, 630 (Alaska
2011)).
8 Id. (citing Rubeyv. Alaska Comm'n on PostsecondaryEduc., 217 P.3d413,
415 (Alaska 2009)).
9 Id. (citing Rubey, 217 P.3d at 415).
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Porche's record request. Because the issue in this case is a question of law that does not
involve agency expertise, the substitution of judgment standard of review applies.
IV. DISCUSSION
A. It Was Error To Hold That The Invasion Of Privacy Exemption To
The Public Records Act Did Not Apply.
1. The records were compiled for law enforcement purposes.
10
The parties agree that the records are subject to the Public Records Act.
To be shielded from disclosure under either of the claimed exemptions, the records must
11
be "compiled for law enforcement purposes." We have previously considered
12
exemptions from disclosure in traditional law enforcement contexts. But we have not
considered whether records created during an internal agency investigation could be
13
"compiled for law enforcement purposes."
The Alaska Legislature looked to the federal Freedom of Information Act
14
(FOIA)
and other states' public records disclosure statutes for guidance while drafting
15 which makes FOIA a useful comparison. Under FOIA, records
thePublic Records Act,
10 See AS 40.25.220(3) (public records generally subject to disclosure).
11 AS 40.25.120(a)(6).
12 See, e.g., Basey I , 408 P.3d 1173, 1180 (Alaska 2017) (holding that
disclosure of criminal investigation records would not interfere with plaintiff's ongoing
federal criminal case); Ramsey v. City of Sand Point, 936 P.2d 126, 135 (Alaska 1997)
(holding that citizens' police records were protected from disclosure under unwarranted
invasion of privacy exemption).
13 AS 40.25.120(a)(6).
14 5 U.S.C. § 552 (2018).
15 The invasion of privacy exemption to disclosure was passed as part of
H.B. 405 in 1990. Ch. 200, § 5, SLA 1990. The bill files for each committee that
(continued...)
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of a law enforcement agency's internal investigation constitute records compiled "for
'law enforcement purposes' only if [the internal investigation] focuses 'directly on
specifically alleged illegal acts, illegal acts of particular identified officials, acts which
16 The sexual misconduct
could, if proved, result in civil or criminal sanctions.' "
allegation against Porche could haveled to criminal charges; the report states that, if true,
the conduct would be "a violation of Alaska Statute (AS) 11.41.425(a)(5), Sexual
Assault in the Third Degree." The records therefore satisfy FOIA's criteria for
exemption from disclosure. Because the Public Records Act was modeled after FOIA,
the records also constitute records "compiled for law enforcement purposes" under the
Public Records Act. If one of the specific law enforcement exemptions from disclosure
applies, the records may be shielded from disclosure.
2. Disclosure would constitute an unwarranted invasion of
witnesses' privacy.
Based on "Alaska's strong commitment to ensuring broad public access to
government records[,] [w]e have repeatedly held that the [public records] act creates a
presumption in favor of disclosure" and that exemptions from disclosure should be
15 (...continued)
reviewed the bill contain multiple references to the federal FOIA and to the information
acts of other states. See John Podesta, Focus Paper 6: A Twenty-First Century Freedom
of Information Act: Working from First Principles (in H. State Affairs Comm. File for
H.B. 405, 16th Leg., 2d Sess. (1990)); State Freedom of Information Acts (in H. Fin.
Comm. File for H.B. 405 and in Sen. State Affairs Comm. File for H.B. 405, 16th Leg.,
2d Sess. (1990)); Memo from Maria Gladziszewski, Legislative Analyst, to Kay Brown,
Representative (Apr. 20, 1989) (in H. Fin. Comm. File for H.B. 405 and in Sen. State
Affairs Comm. File for H.B. 405, 16th Leg., 2d Sess. (1990)).
16 Stern v. F.B.I., 737 F.2d 84, 89 (D.C. Cir. 1984) (quoting Rural Hous. All.
v. U.S. Dep't of Agric., 498 F.2d 73, 81 (D.C. Cir. 1974)).
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17
"narrowly construe[d]." But "[t]he Public Records Act explicitly contemplates that
some records should be kept confidential, despite the general open disclosure policy." 18
After providing that "[e]very person has a right to inspect a public record
in the state, including public records in recorders' offices," AS 40.25.120(a) then lists
17 exceptions to disclosure. One exception shields certain categories of "records or
information compiled for law enforcement purposes,"19 including those that "could
reasonably be expected to constitute an unwarranted invasion of the personal privacy of
a suspect, defendant, victim, or witness."20
The superior court agreed with Porche that to have a "victim or witness"
in need of protection, a crime must have been committed. And it agreed with him that
no crime had been committed because DOC determined that the allegations were not
substantiated. The court then concluded, "As there was no crime, there is no victim or
witness in need of privacy protections" and held that the invasion of privacy exemption
"does not justify the denial" of Porche's request for records.
But as DOC points out, "That a witness may [be] found not to be credible,
or to have made a statement that is not substantiated, does not negate that they [sic] are
a witness." It argues that "[t]here is no statutory basis" to conclude that "the identity of
a witness[] . . . becomes subject to disclosure if the State determines later that the
information is not substantiated."
17 Fuller v. City of Homer, 75 P.3d 1059, 1061-62 (Alaska 2003).
18 Basey v. State, Dep't of Pub. Safety, Div. of Alaska State Troopers, Bureau
of Investigations (Basey II), 462 P.3d 529, 538 (Alaska 2020).
19 AS 40.25.120(a)(6).
20 AS 40.25.120(a)(6)(C).
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Although we have previously interpreted the invasion of privacy
21
exemption,
we have never directly addressed the argument Porche makes. To
determine whether the invasion of privacy exemption applies in this case requires us to
interpret the statutory section's meaning. "We interpret statutes 'according to reason,
practicality, and common sense, taking into account the plain meaning and purpose of
22 "We begin by examining the text" and
the law as well as the intent of the drafters.' "
"apply a sliding scale approach to statutory interpretation [so that] '[t]he plainer the
statutory language is, the more convincing the evidence of contrary legislative purpose
or intent must be' to overcome that plain meaning."23 "We also 'narrowly construe[]'
Public Records Act exemptions 'to further the legislative policy of broad access.' "24
The only term in dispute is the definition of a witness under the law
25 The Public Records Act does not define
enforcement invasion of privacy exemption.
witness,"but absent 'a definition, weconstruestatutory termsaccordingto their common
21 See Ramsey v. City of Sand Point, 936 P.2d 126, 128-29, 135 (Alaska 1997)
(holding that group of citizens that signed petition to remove police officer had "a
reasonable expectation that their contacts with the police department will not be publicly
disclosed simply because they signed a petition").
22 Basey II , 462 P.3d at 535 (quoting Michael W. v. Brown, 433 P.3d 1105,
1109 (Alaska 2018)).
23 Id. (quoting Mat-Su Valley Med. Ctr., LLC v. Bolinder, 427 P.3d 754, 763
(Alaska 2018)).
24 Id. (quoting Basey I, 408 P.3d 1173, 1176 (Alaska 2017) (alteration in
original)).
25 Porche, the suspect, has waived any right he has for the records to be
shielded from disclosure. Since the allegation was brought to DOC by a third party,
there also does not appear to be an identifiable victim.
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26
meaning.' " As commonly understood, a witness is "[o]ne who can give a firsthand
27
account of something seen, heard, or experienced"
or "one that gives evidence
28 Black's Law Dictionary defines a witness as
regarding matters of fact under inquiry."
29 None of these definitions
"[s]omeone who sees, knows, or vouches for something."
differentiates between a witness whose allegation or evidence is subsequently
substantiated and one whose allegation or evidence is not. Neither does the statutory
text, which does not define or limit a "witness."30 Including such a distinction would
read a new requirement into the statute.
Porche relies on the Alaska Criminal Rules to argue that "[a] 'witness'
means a person contacted in connection with a criminal case because the person may
have knowledge or information about the criminal case." He then contends that
"[b]ecause there was no criminal case, there was no witness in this matter." But the rule
he cites applies to criminal cases; it defines its terms with reference to its subject matter
- cases in which an individual has been charged with a crime. As Porche correctly
observes, if he had been charged with a crime as a result of the allegations that DOC
investigated, the criminal rules would have governed his case and he would have been
entitled to numerous additional due process and other constitutional protections -
26 Basey II, 462 P.3d at 535 (quoting Alaska Ass'n of Naturopathic Physicians
v. State, Dep't of Commerce, 414 P.3d 630, 635 (Alaska 2018)).
27 Witness, AMERICAN HERITAGE DICTIONARY (5th ed. 2016).
28 Witness, WEBSTER 'S INTERNATIONAL DICTIONARY (3d ed. 2002).
29 Witness, BLACK'S LAW DICTIONARY (11th ed. 2019).
30 See AS 40.25.120(a)(6)(C) (shielding records compiled for law
enforcement purposes that "could reasonably be expected to constitute an unwarranted
invasion of the personal privacy of a suspect, defendant, victim, or witness").
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----------------------- Page 12-----------------------
among them the right to confront witnesses and obtain information including their
identities. DOC did not substantiate the allegations against Porche, removing him from
both the risks and the additional entitlements to discovery that would have followed had
he been charged with a crime. His reliance upon the Alaska Criminal Rules is misplaced.
Nor does Porche's assumption that the law enforcement exemption applies
only in criminal cases find any support in the language of the exemption. The statute
states broadly that information "compiled for law enforcement purposes" may be
31 Records of an investigation, even one concluding that the allegation is
exempt.
unsubstantiated, would still be "compiled for law enforcement purposes." Porche's
reading, which the superior court adopted, would unduly narrow the scope of the law
enforcement exemption.
Thelegislativehistory also does notsupportadistinctionbetween witnesses
involved in substantiated and unsubstantiated allegations. The legislature amended the
32 and expanded the exemptions from disclosure, including
Public Records Act in 1990
33 While the legislators did not specifically discuss
the invasion of privacy exemption.
the exemption, they frequently emphasized the importance of balancing disclosure and
privacy, with a focus on the public's right to know if their personal information was
disclosed.34
31 AS 40.25.120(a)(6).
32
The amendment was largely an effort to clarify disclosure requirements for
electronic media. See ch. 200, § 1, SLA 1990.
33 See ch. 200, § 5, SLA 1990.
34 See ch. 200, § 1, SLA 1990 ("The legislature finds that . . . to protect an
individual's right to privacy under the state and federal constitutions, the state shall
inform individuals if personal information about them will be subject to public
(continued...)
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Neither the statutory text nor legislative history of the exemptions supports
Porche's argument that the invasion of privacy exemption exempts disclosure of the
names of the people interviewed in the course of an investigation only if the allegations
are eventually substantiated. The person who made the allegation against Porche and the
third parties that DOC contacted during its investigation are all witnesses who
presumably have a reasonable expectation of privacy as to their identities. Because DOC
conducted its investigation for law enforcement purposes, the invasion of privacy
exemption from disclosure applies. It was error for the superior court to conclude that
because "there was no crime, there is no victim or witness."
We also agree with DOC's argument that releasing the identities of the
witnesses would have a "chilling effect" on its ability to investigate such allegations.
Knowing that their identities could be revealed to someone who could retaliate against
them would likely lead to fewer complaints and could increase witnesses' reluctance to
be frank in interviews. "The Public Records Act explicitly contemplates that some
35 The
records should be kept confidential, despite the general open disclosure policy."
identities of witnesses interviewed by DOC in its investigation of the allegation against
Porche fall into this category.
34 (...continued)
disclosure."). Representative Kay Brown, who sponsored the bill, emphasized that
"HB 405 tries to balance the privacy concerns and to protect people's opportunity to
know when information about them will be distributed." Minutes, H. State Affairs
Comm. Hearing on H.B. 405, 16th Leg., 2d. Sess. (Feb. 1, 1990) (statement of
Kay Brown, Representative).
35 Basey II, 462 P.3d 529, 538 (Alaska 2020).
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3. The records would be shielded from disclosure under FOIA,
which contains a nearly identical exemption.
FOIA, on which the Public Records Act is modeled, is especially helpful
in this context because the exemptions at issue in this case are almost identical to those
36
found in FOIA
and the FOIA exemptions havebeenextensively analyzed by the federal
courts. We have found federal decisions construing nearly identical federal statutes to
37
be persuasive authority when we interpret Alaska statutes.
Under one FOIA exemption, the government is not required to disclose law
enforcement records that "could reasonably be expected to constitute an unwarranted
38
invasionofpersonalprivacy." Alaska'sanalogousexemption addslanguagespecifying
36 Compare 5 U.S.C. § 552(b)(7) (exempting "records or information
compiled for law enforcement purposes, but only to the extent that the production of
such law enforcement records or information . . . (C) could reasonably be expected to
constitute an unwarranted invasion of personal privacy; [or] (D) could reasonably be
expected to disclose the identity of a confidential source"), with AS 40.25.120(a)(6)
(exempting "records or information compiled for law enforcement purposes, but only to
the extent that the production of the law enforcement records or information . . .
(C) could reasonably be expected to constitute an unwarranted invasion of the personal
privacy of a suspect, defendant, victim, or witness; [or] (D) could reasonably be expected
to disclose the identity of a confidential source").
37 See, e.g., Dapo v. State, Dep't of Health &Soc. Servs., Office of Children's
Servs., 454 P.3d 171, 181 (Alaska 2019) (considering interpretations of the Federal Tort
Claims Act as persuasive authority in construing Alaska's version); State, Dep't of Corr.
v. Heisey, 271 P.3d 1082, 1087 (Alaska 2012) (considering interpretations of similar
federal legislation as persuasive authority in construing Alaska's statute substituting the
state as the defendant in certain tort suits brought against a state employee).
38 5 U.S.C. § 552(b)(7)(C).
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that it is the "personal privacy of a suspect, defendant, victim, or witness" that may be
39
protected.
The federal statute does not include those limitations.
TheUnited States Supreme Court has formulated a test for disclosure under
exemption 7(C) balancing the privacy interests at stake with the public's interest in
40 The Court has reiterated that "the only relevant 'public interest in
disclosure.
disclosure' to be weighed in this balance is the extent to which disclosure would serve
the 'core purpose of the FOIA,' which is 'contribut[ing] significantly to public
understanding of the operations or activities of the government.' "41 The Court has
expressed particular concern for the privacy rights of private citizens:
Law enforcement documents obtained by Government
investigators often contain information about persons
interviewed as witnesses or initial suspects but whose link to
the official inquiry may be the result of mere happenstance.
There is special reason, therefore, to give protection to this
intimate personal data, to which the public does not have a
general right of access in the ordinary course.[42]
The United States Court of Appeals for the District of Columbia Circuit has
also noted that "[t]he 7(C) exemption recognizes the stigma potentially associated with
lawenforcement investigations and affords broaderprivacy rights tosuspects, witnesses,
39 AS 40.25.120(a)(6)(C).
40 See U.S. Dep't of Justice v. Reporters Comm. for Freedomof the Press , 489
U.S. 749, 762 (1989).
41 U.S. Dep't of Def. v. Fed. Labor Relations Auth., 510 U.S. 487, 495 (1994)
(alteration in original) (emphasis in original) (quoting Reporters Comm. for Freedom of
the Press, 489 U.S. at 775).
42 Nat'l Archives & Records Admin. v. Favish, 541 U.S. 157, 166 (2004).
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----------------------- Page 16-----------------------
43
and investigators." As a result, it has held that "FOIA ordinarily does not require the
disclosure of law enforcement documents (or portions thereof) that contain private
information" and stressed that "privacy interests are particularly difficult to overcome
when law enforcement information regarding third parties is implicated." 44
The Supreme Court has recognized that the core purpose of FOIA is to
"contribute significantly to public understanding of the operations or activities of the
government."45 Obtaining personal information aboutprivateparties through FOIAdoes
not help elucidate the inner workings of the government; instead, it allows the requester
to obtain information about individuals that would not otherwise be available.
In part because disclosure of personal information does not serve the "core
purpose" of FOIA, federal courts have read FOIA's exemption 7(C) to be particularly
protective of the identities of third parties implicated in law enforcement records, and we
consider their decisions as we apply the virtually identical section of our Public Records
Act. Disclosing the identities of the witnesses interviewed during DOC's investigation
of Porche's alleged misconduct would not "contribute significantly to public
understanding of the operations or activities of the government."46 The identities and the
witnesses' involvement in the investigation are rather the type of "intimate personal data,
43 Stern v. FBI , 737 F.2d 84, 92 (D.C. Cir. 1984) (quoting Bast v. U.S. Dep't
of Justice , 665 F.2d 1251, 1254 (D.C. Cir.1981)).
44 Blackwell v. F.B.I., 646 F.3d 37, 41 (D.C. Cir. 2011) (quoting Martin v.
U.S. Dep't of Justice, 488 F.3d 446, 457 (D.C. Circ. 2007)).
45 Reporters Comm. for Freedom of the Press, 489 U.S. at 775.
46 Id.
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47
to which the public does not have a general right of access in the ordinary course." It
therefore appears that Porche would not be entitled to disclosure under FOIA. He is
48
likewise not entitled to disclosure under the Public Records Act.
V. CONCLUSION
We REVERSE the superior court's order disclosing all DOC records to
Porche. We REMAND for further proceedings consistent with this opinion.
47 Favish, 541 U.S. at 166.
48 DOC also argued to the superior court that a second law enforcement
exemption, AS 40.25.120(a)(6)(D), applied because releasing its records "could
reasonably be expected to disclose the identity of a confidential source." The superior
court declined to address the argument because DOC had not raised it during the
administrative proceedings and it was not part of the agency record. We need not reach
this issue because of our decision that the invasion of privacy exemption shields the
records from disclosure.
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