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Doe v. Thurston County

Court of Appeals of Washington, Division 2

June 20, 2017

JOHN DOE P; JOHN DOE Q; JOHN DOE R; and JOHN DOE S, as individuals and on behalf of others similarly situated, Respondents,
v.
THURSTON COUNTY, a municipal organization, and its departments the THURSTON COUNTY PROSECUTING ATTORNEY, and THURSTON COUNTY SHERIFF, Respondents, DONNA ZFNK, a married woman, Appellant.

          JOHANSON, J.

         In response to Donna Zink's Public Records Act[1] (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[2] (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.

         Zink 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.

         FACTS

         I. Public Records Request

         In 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.[3] 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 information.

         II. John Does' Lawsuit

         A. Class Action Complaint

          In 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[4] 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 registration.

         B. Class Certification, Pseudonym, and Preliminary Injunction Hearing

         In 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 the motions.[5]

         Within 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."[6] 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[7] factors.

         The 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.

         C. Summary Judgment

         In June, the John Does moved for summary judgment on their request for a permanent injunction.[8] 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."[9] 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.

         In 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.

         The 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 RCW.

         Zink 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, [10] 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.

         Noting 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.

         Zink appeals the summary judgment, pseudonym, and class certification orders.[11]

         ANALYSIS

         I. Summary Judgment

         A. Overview of the PRA

         We 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).

         The 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 (2011).

         B. SSOS And SSODA Evaluations

         "[T]he 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 (2011).

         Under 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).

         After 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).

         Similar 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 ...


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