Superior Court upholds public’s right to know

By Les Bowen for Lake Chelan Mirror   |   Oct. 21, 2009   |   Original source behind paywall

Chelan County Superior Court Judge Lesley Allan ordered the release of the termination letter from Lake Chelan Community Hospital Commissioners addressed to former CEO Dave Bernier with two paragraphs redacted.

Bernier was fired from his position at Lake Chelan community Hospital on Sept. 14. Since then, three media outlets, the Lake Chelan Mirror, The Wenatchee World and GoLakeChelan.com have requested copies of the termination letter. Bernier filed in superior court for an injunction barring the release of the letter and obtained a temporary restraining order preventing the hospital from releasing the record.

In response, the Mirror, The World and GoLakeChelan.com collectively filed against Bernier’s actions and asked that portions of his pleading that had been filed under seal be unsealed.

The hospital district did not favor either Bernier’s position or the news media’s.

“We did not take a position on this issue,” said the hospital’s attorney, Jeff Kreutz, in court proceedings Friday morning, Oct. 16, in Wenatchee. He said the hospital district’s position was that the documents was a public record and that the hospital would follow the court’s decision.

Bernier’s attorney, J.P. Diener, requested that the judge clear the courtroom so documents filed under seal could be openly discussed. Sofia Mabee, representing the news media objected.

“Clearly the public is interested in this proceeding,” Mabee said.

Allan agreed and noted that even if she were to close the courtroom, Mabee would be at liberty to disclose court proceedings to her clients, the media.

“I’m at a loss as to how I can close the court now,” Allan said.

Bernier’s attorney said he could still argue the case without getting into specifics of the documents in question.

“The (termination) letter doesn’t contain any facts,” Diener argued. “It only contains rumors and speculation.”

He added that Bernier disputed the allegations of the letter and the board failed to back up any of its claims with additional information.

However, Allan referenced an appellate case, Morgan v. Federal Way, cited in the news media’s brief, that found allegations are not unsubstantiated simply because they are disputed. Still, Diener argued that the court should prevent disclosure until Bernier could fully contest the allegations.

“Bernier’s reputation – both personal and professional – is very much on the line here,” Diener said.

Mabee argued that the legal standard for issuing an injunction wasn’t met and the compelling public interest in the termination letter should prevent an injunction.

She said Bernier had been unable to show how releasing the termination letter would harm the public’s interest. To the contrary, she explained, releasing the record serves to further the public’s interest.

However, Diener said his client need only show that release would damage him and a better venue would be to release the information in court, where Bernier would be able to respond.

Allan disagreed, noting in her ruling that there is a strong presumption of openness in Washington unless there is a specific statutory exemption.

“This information is mostly disclosable,” Allan stated. She ordered that the termination of the temporary restraining order and granted the news media’s motion to unsealing much of Bernier’s pleading.

At the same time, the judge recognized that some information would be highly offensive and is not in the public’s interest. She ordered that two paragraphs of the termination letter and two paragraphs of Bernier’s pleading be redacted.

The paragraphs in question relate to a Klickitat County case of misdemeanor-level cyberstalking and a sexual harassment investigation at Lake Chelan Community Hospital.

Allan ruled that in those two cases, the letter and declaration only contained speculative or unsubstantiated information and would “promote only gossip and sensation.”

The redacted version of the termination letter as well as the unsealed portions of Bernier’s declaration and other documents can be viewed online at lakechelanmirror.com.