JOHN DOE P; JOHN DOE Q; JOHN DOE R; and JOHN DOE S, as individuals and on behalf of others similarly situated, Respondents,
THURSTON COUNTY, a municipal organization, and its departments the THURSTON COUNTY PROSECUTING ATTORNEY, and THURSTON COUNTY SHERIFF, Respondents, DONNA ZFNK, a married woman, Appellant.
response to Donna Zink's Public Records Act (PRA) request,
the John Does, four level I sex offenders, filed a class
action lawsuit against Thurston County (the County). The John
Does successfully enjoined the disclosure of unredacted level
I sex offender records, including, as relevant to this
appeal, special sex offender sentencing alternative (SSOSA)
and special sex offender disposition
alternative (SSODA) evaluations. Zink appeals the
trial court's orders granting permission to proceed under
pseudonym, certifying the class, and granting summary
judgment in the John Does' favor. We hold that the trial
court properly granted the John Does' summary judgment
motion and enjoined the release of the unredacted
evaluations. We further hold that Zink waived her arguments
regarding the trial court's orders allowing the
plaintiffs to proceed under pseudonyms and class
certification when Zink failed to appear and object.
also sought the release of sex offender registration records.
We agree with the parties that the trial court erred when it
enjoined the registration records' release under former
RCW 4.24.550 (2011) in light of John Doe A. v. Wash.
State Patrol (WSP), 185 Wn.2d 363, 385, 374 P.3d 63
(2016). Thus, we hold that the registration records must be
released. Accordingly, we affirm the trial court's orders
granting summary judgment and enjoining the unredacted
evaluations' release, certifying the class action, and
allowing the plaintiffs to proceed as John Does.
Public Records Request
October 2014, under the PRA, Zink requested the following
records from the County: all SSOSA and SSODA evaluations and
victim impact statements for sex offenders prosecuted in
Thurston County, registration forms of sex offenders
registered in Thurston County, and a list or database of all
sex offenders registered in Thurston County. The County
responded that it was required to "provide third party
notification to all of the registered sex offenders in our
county" and that the first installment of records would
be ready in March 2015. Clerk's Papers (CP) at 159. In
December 2014, the County notified 723 sex offenders of
Zink's request for SSOSA and SSODA evaluations and other
John Does' Lawsuit
Class Action Complaint
January 2015, the John Does filed a class action complaint,
which listed Zink as a party. They sought a permanent
injunction to enjoin the County from disclosing all level I
sex offender registration records and all SSOSA and SSODA
evaluations. The John Does did not object to the victim
impact statements' disclosure. The John Does identified
themselves as Thurston County residents who had each been
convicted of a sex offense, completed treatment, and had
either registered as a sex offender or been excused from
Class Certification, Pseudonym, and Preliminary Injunction
January, the John Does moved for class certification,
permission to proceed under pseudonyms, and a preliminary
injunction preventing the release of the evaluations and
registration records. The County did not challenge class
certification or the use of pseudonyms, although the County
opposed the preliminary injunction. Zink did not respond to
a month, the trial court heard argument from the John Does
and the County regarding the three motions. The trial court
noted that Zink had been "properly notified . . . of
this hearing" yet failed to respond or appear at the
hearing. Report of Proceedings (RP) (Jan. 23, 2015) at 7. The
trial court stated that it "appear[ed] that the [John
Does and the County] ha[d] come to an agreement" to
allow class certification and the use of pseudonyms. RP (Jan.
23, 2015) at 15. Regarding the motion to proceed under
pseudonyms, the trial court found that "[t]here is no
dispute that the plaintiffs exist and have an interest in
this litigation." CP at 92. The trial court granted the
request to proceed under pseudonyms and concluded,
[The John Does] seek to exercise their right ... to enjoin
release of personally identifying information which they
contend is exempt from the PRA. Forcing [the John Does] to
disclose their identities to bring this action would
eviscerate their ability to seek relief. . . .
[The John Does'] interest in proceeding anonymously
outweighs the public interest in knowing their names.
CP at 92. The trial court explained that because there was no
reason to place the John Does' names on the record, no
portion of the record was sealed, and it was unnecessary to
analyze the Ishikawa factors.
trial court also granted the John Does' preliminary
injunction motion and the unopposed class certification
motion. The trial court authorized the John Does to represent
a class defined as
"[a]ll individuals named in registration forms, a
registration database, SSOSA evaluations, or SSODA
evaluations in the possession of Thurston County, and
classified as sex offenders at risk level I who are compliant
with the conditions of registration or have been relieved of
the duty to register."
CP at 87.
June, the John Does moved for summary judgment on their
request for a permanent injunction. The John Does first
contended that the registration information was exempt from
disclosure under public notification provisions of the
"Community Protection Act" (CPA), former RCW
4.24.550, incorporated into the PRA as an "other
statute." Second, the SSOSA and SSODA evaluations
were exempt under the PRA's Uniform Health Care
Information Act (UHCIA), ch. 70.02 RCW, exemption. And third,
the SSODA evaluations were exempt under the juvenile records
statute, ch. 13.50 RCW, another "other statute"
incorporated by the PRA. The John Does argued that they met
the PRA's requirements for a permanent injunction because
the records pertained to them and to the class and were
exempt from production and because disclosure would not be in
the public interest and would substantially and irreparably
harm the class.
support of their argument that disclosure would irreparably
harm the class and would not be in the public's interest,
the John Does submitted their own declarations and those of
attorneys and sex offender treatment and prevention
organizations. These declarations explained the intimate
details contained in the evaluations, including broad
descriptions of an offender's sexual partners,
activities, and preferences; the offender's mental
health, personal life, and background; and any uncharged
offenses. Multiple declarations explained that the disclosure
of the evaluations would hamper treatment and harm public
safety because offenders would refuse to participate or fully
respond to questions.
County opposed the John Does' summary judgment motion and
argued that the CPA, former RCW 4.24.550, was not an
"other statute" under the PRA and did not exempt
the disclosure of level I sex offender registration
information. Further, the County contended that the SSOSA and
SSODA evaluations did not fit within the PRA's UHCIA
exemption and that the SSODA evaluations could be redacted
and released under the juvenile records statute, ch. 13.50
opposed the John Does' summary judgment motion. In
particular, Zink claimed that the CPA, former RCW 4.24.550,
was not an "other statute" exemption, that the
records were conviction records subject to dissemination
under the Washington State Criminal Records Privacy Act
(CRPA), ch. 10.97 RCW, that the Sentencing Reform Act of 1981
(SRA), ch. 9.94A RCW, RCW 9.94A.475, required the
evaluations' release, and that the SSODA evaluations were
juvenile records open to public inspection under ch. 13.50
RCW. Additionally, Zink contended that the John Does had not
shown that they would suffer actual and substantial harm from
disclosure or that the public had no interest in the
requested records. In support of her summary judgment
opposition, Zink submitted a variety of documents related to
sex offenders,  including several news articles about
sex offenders, some of whom had received SSOSAs and one of
whom had violated his SSOSA by failing to report.
that the material facts were undisputed and that the
questions to be resolved were solely questions of law, the
trial court granted the John Does' summary judgment
motion and request for a permanent injunction that enjoined
the County from releasing unredacted records. The trial court
found that the Does' "uncontested" declarations
attested to substantial and irreparable harm that would
result from unredacted disclosure and that "the record
established] that unredacted disclosure would not be in the
public interest." CP at 670. And the trial court
determined that the records at issue fell within the
PRA's UHCIA exemption and "other statute"
exemption, incorporating the CPA, former RCW 4.24.550, and
the juvenile records statute, ch. 13.50 RCW. Thus, the trial
court concluded that the John Does were entitled to permanent
injunctive relief because the records at issue pertained to
the class and were exempt from disclosure and because
unredacted disclosure would not be in the public interest and
would substantially and irreparably harm the class members.
The trial court expressly declined to determine whether
redacted records could be disclosed and ruled that it did not
authorize in camera review "at this time." CPat671.
appeals the summary judgment, pseudonym, and class
Overview of the PRA
review summary judgment decisions and actions under the
PRA's injunction statute, RCW 42.56.540, de novo.
Planned Parenthood of the Great Nw. v. Bloedow, 187
Wn.App. 606, 618, 350 P.3d 660 (2015). The PRA is a
'"strongly worded mandate for broad disclosure of
public records.'" WSP, 185 Wn.2d at 371
(quoting Hearst Corp. v. Hoppe, 90 Wn.2d 123, 127,
580 P.2d 246 (1978)). In enacting the PRA, the legislature
made certain records exempt from production through specific
exemptions listed in the PRA itself. Resident Action
Council v. Seattle Hous. Auth., 777 Wn.2d 417, 432, 327
P.3d 600 (2013). Among these exemptions is an exemption for
health care information under the UHCIA. Former RCW
42.56.360(2); Prison Legal News, Inc. v.Dep't of
Corrections, 154 Wn.2d 628, 644, 115 P.3d 316 (2005).
Disclosure provisions in the PRA are to be interpreted
liberally and exemptions narrowly. WSP, 185 Wn.2d at
371 (quoting RCW 42.56.030).
injunction statute provides for court protection of public
records that fall within the PRA's exemptions:
The examination of any specific public record may be enjoined
if, upon motion and affidavit by ... a person who is named in
the record or to whom the record specifically pertains, the
superior court . . . finds that such examination would
clearly not be in the public interest and would substantially
and irreparably damage any person, or would substantially and
irreparably damage vital governmental functions.
RCW 42.56.540. To enjoin disclosure under the injunction
statute, a trial court must find "that a specific
exemption applies and that disclosure would not be in the
public interest and would substantially and irreparably
damage a person." Yakima County v. Yakima
Herald-Republic, 170 Wn.2d 775, 808, 246 P.3d 768
And SSODA Evaluations
legislature developed [SSOSA] for first time offenders to
prevent future crimes and [to] protect society."
Koenigv. Thurston County, 175 Wn.2d 837, 847, 287
P.3d 523 (2012). A SSOSA is a special procedure that allows a
sentencing court to suspend a sex offender's felony
sentence if the offender meets certain statutory criteria.
State v. Sims, 171 Wn.2d 436, 439 n.l, 256 P.3d 285
the SSOSA statute, the trial court may order an eligible
offender to complete an examination "to determine
whether the offender is amenable to treatment." RCW
9.94A.670(3). The examination report must include the
offender's version and the official version of the facts,
the offender's offense history and social and employment
situation, "(i) [a]n assessment of problems in addition
to alleged deviant behaviors, " "(v) [o]ther
evaluation measures used, " and the sources of the
examiner's information. RCW 9.94A.670(3)(a). The examiner
also must report regarding "the offender's
amenability to treatment and relative risk to the
community." RCW 9.94A.670(3)(b).
Further, the examiner must provide a proposed treatment plan
that includes the frequency, type, and length of therapy,
"(ii) . . . issues to be addressed in the treatment and
. . . planned treatment modalities, " "(iii)
[m]onitoring plans, " and recommended prohibitions and
conditions. RCW 9.94A.670(3)(b). The prohibitions and
conditions must include, "to the extent known, an
identification of specific activities . . . that are
precursors to the offender's offense cycle, . . . such as
viewing or listening to pornography or use of alcohol or
controlled substances." RCW 9.94A.670(3)(b)(v).
receiving the evaluation, the trial court must consider a
number of circumstances, including whether the offender is
amenable to treatment, to determine whether the offender
should receive a SSOSA. RCW 9.94A.670(4). The trial court
must impose conditions, including "(c) [treatment"
and "(d) [s]pecific prohibitions and affirmative
conditions relating to the known precursor activities or
behaviors identified in the proposed treatment plan."
RCW 9.94A.670(5). The sex offender treatment provider cannot
be the same person who performed the evaluation to determine
if the offender was amenable to treatment, unless authorized
by the trial court. RCW 9.94A.670Q3).
to SSOSA, SSODA provides an "alternative to traditional
sentencing" for juveniles facing a first-time
adjudication for certain sex offenses. State v.
Sanchez,177 Wn.2d 835, 840, 306 P.3d 935 (2013). Like
the SSOSA statute, the SSODA statute allows a trial court to
order an evaluation to determine the offender's
"amenability to treatment, " and the evaluation
must include the same information as a SSOSA evaluation,
including a proposed treatment plan. RCW 13.40.162(2)(a)-(b).
The trial court must then ...