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Doe G v. Department of Corrections

Court of Appeals of Washington, Division 1

January 23, 2017

JOHN DOE G, JOHN DOE I, and JOHN DOE H, as individuals and on behalf of others similarly situated, Respondents,

          Leach, J.

         The Department of Corrections (Department) and Donna Zink each appeal a trial court order enjoining disclosure of certain special sex offender sentencing alternative (SSOSA) evaluations. Zink submitted a Public Records Act (PRA)[1] request for all SSOSA evaluations since 1990. The respondents (collectively Doe), a class of level I sex offenders, sued to prevent the Department from disclosing their evaluations. The trial court enjoined the Department from releasing SSOSA evaluations of level I sex offenders who, as of the request date, had complied with their conditions of supervision. Because each evaluation necessarily includes a diagnosis of the offender's mental conditions, it contains confidential health care information under Washington's Uniform Health Care Information Act (UHCIA).[2] Without redaction of this information, they are thus exempt from PRA disclosure. Because experience and logic show that allowing plaintiffs to use pseudonyms in these circumstances does not implicate the Washington Constitution, the trial court did not err in allowing the plaintiffs to proceed under pseudonyms. And because the PRA does not prohibit plaintiffs from suing as class representatives, the trial court did not err in certifying the class here. We affirm.


         The Washington Legislature enacted SSOSA as part of the Sentencing Reform Act of 1981.[3] SSOSA provides a sentencing alternative for first time sex offenders.[4] It allows a trial court to suspend an offender's felony sentence if the offender meets certain statutory criteria.[5] When doing this, the court must impose certain conditions, including sex offender treatment and a term of community custody.[6]

          To be considered for a SSOSA, an eligible offender must undergo an evaluation to determine whether the offender is "amenable to treatment."[7] An offender is amenable to treatment if the offender and the community will benefit from community-based treatment given the offender's background, history, social and economic circumstances, and psychological condition.[8] With narrow exceptions, the evaluation must be performed by a health professional certified by the Department of Health (DOH) to examine and treat sex offenders.[9] The statute generally prohibits the same provider from treating the offender if the offender receives a SSOSA.[10]

         The SSOSA evaluation assesses "the offender's amenability to treatment and relative risk to the community."[11] The evaluation must contain, at a minimum, the offender's and the official versions of the crime, the offender's criminal history, "[a]n assessment of problems in addition to alleged deviant behaviors, " information about the offender's employment and social life, and any other evaluation measures the provider used.[12] Based on these factors, the provider must assess the appropriateness of community treatment, summarize its "diagnostic impressions, " assess factors affecting risk to the community, assess the offender's willingness to participate, and propose a treatment plan.[13]

         If the offender meets the statutory criteria and undergoes an evaluation, the trial court then must consider a number of circumstances, including the victim's opinion in particular, and decide if a SSOSA sentence is appropriate.[14]

         The Department supervises offenders who receive a SSOSA.[15] Unlike other mental health treatment information, the Department does not receive a SSOSA evaluation from the provider. Rather, either the prosecutor or defense attorney usually provides the evaluation to the community corrections officer investigating the offender's history.

         Doe submitted unrebutted expert testimony that SSOSA sentences are effective. A 2005 study commissioned by the legislature found that offenders who complete SSOSA sentences have the lowest recidivism rates for any type of crime, including sex offenses-rates less than one third those of other offenders.[16] Nonetheless, SSOSA sentences are increasingly rare in practice even among eligible offenders. In 2005, 35 percent of offenders who met the statutory criteria received SSOSA sentences, down from 59 percent in 1986. In 2012, only 95 offenders in the state received a SSOSA sentence.

         In July 2014, Donna Zink made a PRA request for all SSOSA evaluations "maintained, in the possession of or owned by the Washington State Department of Corrections from January 1, 1990 to the present." The Department responded that it would produce the evaluations after reviewing each one to determine if it contained exempt information, including victims' names. Doe filed this action to enjoin the Department from releasing evaluations of level I sex offenders.

         The plaintiffs are current or former level I sex offenders who underwent SSOSA evaluations. Level I offenders are those who the Department's end-of-sentence review committee determines pose the lowest risk to the public.[17]

         The trial court first granted a temporary restraining order and then a preliminary injunction against the Department.[18] It also allowed the plaintiffs to use pseudonyms and to represent a certified class of compliant level I offenders who have received SSOSA evaluations since 1990.[19]

         Later, the trial court granted summary judgment for the plaintiffs, finding that RCW 71.05.445 and ch. 70.02 RCW exempt the evaluations from disclosure. The court permanently enjoined the Department from fulfilling Zink's request. Zink and the Department appeal.


         This court reviews de novo a trial court's PRA decisions about exemptions and injunctions.[20] This court also reviews the record de novo in PRA cases where "the record consists of only affidavits, memoranda of law, and other documentary evidence, and where the trial court has not seen or heard testimony requiring it to assess the witnesses' credibility or competency."[21] When a party seeking summary judgment initially shows the absence of any material issue of fact for trial, the party opposing summary judgment must produce evidence of specific facts sufficient to show a material issue.[22]


         Health Care Information Exemption

         The PRA requires state agencies to make records "available for public inspection and copying" unless the records are exempt under the PRA or an "other statute which exempts or prohibits disclosure of specific information or records."[23] Doe asserts that both the PRA and two "other statute[s]" exempt the records Zink requested. We agree with Doe that the unredacted evaluations that the Department intended to release are exempt from the PRA's general disclosure provision because they contain confidential health care information. We do not decide if the records can be sufficiently redacted to protect this information.

         As a preliminary matter, and contrary to Zink's arguments, the Supreme Court's decision in Koenig v. Thurston County[24] does not dispose of Doe's exemption arguments. The Supreme Court considered only whether the PRA exemption for investigative records applies to SSOSA evaluations and victim impact statements.[25] "In cases where a legal theory is not discussed in the opinion, that case is not controlling on a future case where the legal theory is properly raised."[26]

         The PRA includes an exemption for patients' health care information.[27]This exemption incorporates the confidentiality provisions of Washington's UHCIA.[28] This act protects health care information and information about mental health services.

         The UHCIA prohibits disclosure of "health care information about a patient" without the patient's consent.[29] This prohibition applies to "a health care provider, an individual who assists a health care provider in the delivery of health care, or an agent and employee of a health care provider." "Health care information" includes "any information. . . that identifies or can readily be associated with the identity of a patient and directly relates to the patient's health care."[30] Thus, information in SSOSA evaluations is confidential under the UHCIA and exempt under the PRA if the offenders receiving the evaluations are "patients, " that information identifies "or can readily be associated with" an offender's identity, and the evaluation "directly relates" to the offender's health care.[31] Information in the evaluations satisfies each of these requirements.

         First, offenders are "patients" under the UHCIA. The act defines a "patient" as "an individual who receives or has received health care."[32] This broad definition shows no intent for the term "patient" to limit what qualifies as "health care information."[33] Instead, the Supreme Court's decisions interpreting RCW 70.02.020 note only two requirements for "health care information": patient identifiability and information about patient health care.[34]

         Second, SSOSA evaluations identify offenders. A party opposing PRA disclosure must show "each patient's health care information is 'readily associated' with that patient" for the exemption to apply.[35] "Where there is a dispute over whether health care information is readily identifiable with a specific patient even when that patient's identity is not disclosed, the trial court can use in camera review should it need to examine unredacted records to make its independent determination."[36] This review was not necessary here because the Department does not intend to redact offenders' names from evaluations. The evaluations are thus "readily associated" with offenders.

         Finally, some information in SSOSA evaluations directly relates to offenders' health care. "'Health care' means any care, service, or procedure provided by a health care provider: (a) To diagnose, treat, or maintain a patient's physical or mental condition; or (b) That affects the structure or any function of the human body."[37]

          The Department would interpret "to" in this definition to mean "for the sole purpose of." It thus contends that the evaluations do not directly relate to offenders' health care because the evaluations are not for the sole purpose of treating offenders. It asserts that the evaluations are only "mandatory forensic evaluation[s]" to assist a court in making a sentencing decision. Doe responds that the evaluations can have more than one purpose. We agree with Doe.

         Nothing in the statute supports the Department's narrow interpretation of health care.[38] The SSOSA statute requires an evaluation to include "[a]n assessment of problems in addition to alleged deviant behaviors, " information about the offender's employment and social life, and any other evaluation measures the provider used.[39] DOH regulations further require that the evaluation include, among other information, "[a] sexual history, sexual offense history and patterns of sexual arousal/preference/interest, " "[r]isk factors for offending behavior, " and medical, marital, relationship, and family histories. The evaluations must also address "[m]ental health functioning including coping abilities, adaptation style, intellectual functioning and personality attributes" and include "overall findings of psychological/physiological/medical assessment if these assessments have been conducted."[40]

         The evidence Doe submitted also indicates that the evaluations contain medical, mental health, substance abuse, and sexual histories; results of physical and psychological tests; amenability to treatment; and information about the offenders' families, as well as their victims.[41] The Department introduced no evidence to rebut the facts in these declarations.

         Thus, governing law and our review of the record both indicate that SSOSA evaluations include a "service[ ] or procedure provided by a health care provider" to "diagnose ... a patient's . .. mental condition."[42] They therefore directly relate to offenders' health care.

          Because SSOSA evaluations contain health care information, if not redacted, they are exempt from PRA disclosure under RCW 42.56.360(2) and RCW 70.02.020(1). Because we hold that these statutes exempt the evaluations that the Department proposed releasing, we do not reach Doe's alternative arguments that RCW 71.05.445 and RCW 70.02.250 are "other statute[s]" that exempt the evaluations from PRA disclosure.

         We do not decide whether some portion of a SSOSA evaluation would fall outside the exemption. "In general, the PDA does not allow an agency to withhold exempt records in their entirety. Rather, agencies must withhold only those portions of individual records which come under a specific exemption and disclose the rest."[43]

         Here, the Department's only declaration in opposition to the preliminary injunction suggested that names of victims may be exempt. A footnote in the Department's brief stated that the Department would also redact information that "clearly qualifie[s] as medical information." But the Department takes the position, which it stated firmly at oral argument, that the evaluations contain no medical information. Similarly, Doe did not identify any information that would not be exempt under his interpretation of the UHCIA. Both sides thus framed exemption and disclosure as all or nothing propositions.

          Doe showed that the evaluations contain health care information. Our record does not include any SSOSA evaluations. We have nothing before us that would allow us to decide if any specific portions are not exempt. As a result, because the evaluations contain exempt health care information that the Department has refused to redact, we affirm the trial court.[44]


         In Zink's separate appeal, she contends that the trial court improperly sealed court records when it allowed the plaintiffs to use pseudonyms. She asserts that the trial court had to hold a hearing in open court and apply the five factors from Seattle Times Co. v. Ishikawa[45] before allowing this. We disagree.

         The Washington Constitution creates a presumption of openness in trial court proceedings.[46] "Whether an Ishikawa analysis is necessary depends on whether article I, section 10 applies."[47] And "[w]hether article I, section 10 applies depends on application of the experience and logic test."[48] Thus, we ask whether, under the experience prong, "'the place and process have historically been open to the press and general public.'"[49] We then ask whether, under the logic prong, "'public access plays a significant positive role in the functioning of the particular process.'"[50]

         The title of a complaint must "include the names of all the parties."[51] The federal courts have a substantively identical rule.[52]

         But plaintiffs' real names have not "historically been open to the press and general public" when the nature of the action shows that compelling them to use their real names would chill their exercise of their right to seek relief. Numerous opinions from the Supreme Court[53]and this court[54] demonstrate this longstanding and previously uncontroversial practice in Washington. The experience prong thus shows that a routine and desirable practice exists among Washington courts to allow parties, when appropriate, to proceed under pseudonyms.

         The logic prong also supports pseudonymity in this case. Certain circumstances require pseudonymity at the time a complaint is filed to allow Washington courts to provide any practical relief. While in general "[t]he people have a right to know who is using their courts, " "[t]here are exceptions."[55]Washington courts have explained their reasoning only briefly. The Supreme Court has noted that "a plaintiff may proceed under a pseudonym to protect a privacy interest."[56] In one case, it adopted a substitute case name "[t]o avoid revealing the name of either the mother or child" when the mother was seeking a birth certificate.[57] Where an employee sued his employer for sexual harassment, this court used a pseudonym "[b]ecause of the nature of the allegations in th[e] case."[58] Our courts may not have analyzed this issue before because the use of pseudonyms has gone unchallenged in these cases. They may not have addressed the issue because the measure's practical necessity is obvious. For example, in a case bearing some similarities to this one, an employee used a pseudonym in bringing UHCIA and invasion of privacy claims where his health care provider used his name and consumer number in a training exercise for processing mental health claims.[59] There, as here, the plaintiff opposed the disclosure of what he claimed was confidential health care information; and there, as here, compelling the plaintiff to use his real name would have greatly impaired the court's ability to provide relief.

         The federal appellate courts that have considered this matter all agree with this logic. Although federal law lacks a provision like Washington's article I, section 10, federal courts recognize parallel rights under the First Amendment.[60]We therefore look to those courts for guidance. The Eleventh Circuit has explained that pseudonyms are appropriate where "the injury litigated against would be incurred as a result of the disclosure of the plaintiff's identity."[61] To this end, federal courts have adopted balancing tests: the Eleventh, Tenth, and Fifth Circuits allow a plaintiff to proceed pseudonymously where "the plaintiff has a substantial privacy right which outweighs the customary and constitutionally-embedded presumption of openness in judicial proceedings."[62] The Ninth and Second Circuits ask whether "the party's need for anonymity outweighs prejudice to the opposing party and the public's interest in knowing the party's identity."[63]

          Experience and logic thus show that allowing plaintiffs to proceed under pseudonyms does not implicate article 1, section 10 where the public's interest in the plaintiffs' names is minimal and use of those names would chill their ability to seek relief. Here, the trial court found that "[f]orcing [p]laintiffs to disclose their identities to bring this action would eviscerate their ability to seek relief; that the plaintiffs demonstrated a significant risk of harm if their identities are disclosed; that the individual names "have little bearing on the public's interest in the dispute or its resolution"; that pseudonymity would not prejudice the Department; that the plaintiffs' interests in anonymity outweighed the public's interest in knowing their names; and that "no reasonably viable alternatives" existed. While Zink assigns error to these findings, she does not explain how they are incorrect. Nor did she submit evidence to contradict them. Our review of the record shows that substantial evidence supports the trial court's findings and that the trial court did not abuse its discretion in applying the Ishikawa factors.[64]

         Class Certification

         Zink also asserts that the PRA prohibited the trial court from certifying a class of level I sex offenders "who are either compliant with the conditions of registration or have been relieved of the duty to register, and who underwent an evaluation to determine if they were eligible for a [SSOSA] after January 1, 1990 "[65] we review statutory interpretation issues de novo[66] and decisions to certify classes of plaintiffs for abuse of discretion.[67] Here, the trial court properly interpreted governing law and did not abuse its discretion in certifying a class.

         Because "the PRA statutes do not create a special proceeding subject to special rules, " the normal civil rules apply to PRA proceedings.[68] Thus, the rule governing class certification, CR 23, controls here. Courts interpret that rule liberally.[69]

         As Zink does not contend that the class certification did not comply with CR 23, the trial court did not err in certifying the class of plaintiffs unless the PRA prohibits class actions altogether. It does not. Zink relies on the PRA's statement that a court can enjoin disclosure "upon motion and affidavit by an agency or its representative or a person who is named in the record or to whom the record specifically pertains."[70] She does not dispute that the class of plaintiffs are named in their SSOSA evaluations or that the evaluations specifically pertain to them.

         We construe the class action rule "liberally in favor of permitting certification."[71] When a court certifies a class, the representative plaintiffs stand in for all other members of the class; those members are treated as parties to the litigation.[72] A decision in the case then binds all unexcluded members of the class.[73] Because the plaintiffs represent an entire class, even statutes the legislature phrases in individual terms allow for class actions.[74] The plaintiffs here can thus form a class to bring this PRA action.[75]

         Temporary Restraining Order and Preliminary Injunction

         Zink asks that we decide the proper standard for issuing a preliminary injunction in a PRA case. That issue became moot when the trial court issued a ...

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