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Doe v. Benton County

Court of Appeals of Washington, Division 3

October 10, 2017

JOHN DOE, an individual, Plaintiff,
BENTON COUNTY, a municipal corporation in the State of Washington, Respondent, DONNA ZINK and JEFF ZINK, husband and wife, Appellants.


          Lawrence-Berrey, A.C.J.

         In 2013 and 2014, Donna Zink made a series of requests under the Public Records Act (PRA), chapter 42.56 RCW, seeking documents pertaining to level I registered sex offenders. She made one of these requests to Benton County (the County), which possessed records identifying the plaintiff in this case, John Doe, as a level I sex offender. Before the County produced its final installment of records, which contained John Doe's information, it notified John Doe about Ms. Zink's request.

         John Doe filed suit against the County, Ms. Zink, and Ms. Zink's husband to enjoin production of the records identifying him. In their answer, the Zinks asserted a cross claim against the County, claiming it violated the PRA by withholding the requested records to notify John Doe about the request. The trial court dismissed the Zinks' cross claim under CR 12(b)(6), and the Zinks appealed. We affirm.


         On July 21, 2013, Ms. Zink submitted a public records request to the County. In it, she sought "the level one [sex] offender registrations filed in Benton County as well as a list of all level one [sex] offenders registered in Benton County."[1] Clerk's Papers (CP) at 352. The County responded to Ms. Zink and informed her the sheriffs office would begin processing her request.

         One week later, the County contacted Ms. Zink and indicated the documents she requested were potentially exempt from disclosure under both the "investigative records" and "other statute" exemptions.[2] The County told Ms. Zink it was going to notify the affected individuals that she had requested their records. It stated the notice would include a copy of her request and her name so that the affected individuals could seek an injunction if they believed the records were exempt. The County stated that absent an injunction, it would release the records.

         In response to the County's notices, 14 individuals filed a complaint to enjoin the County from releasing their information to Ms. Zink. Multiple lawsuits were filed, and the trial court entered four permanent injunctions prohibiting the County from releasing the records.

         On April 17, 2014, Ms. Zink made another PRA request. She sought "all e-mails sent to or received from anyone or any person in Benton County staff, officials, council members, other agencies . . . concerning [her] requests for sex offender information starting on July 15, 2013 through and including April 17, 2014." CP at 363. This is the request at issue in this case.

         Following Ms. Zink's April 17 request, the County began responding in installments. During this process, the County came across names of new individuals whose names were not identified in the initial set of records responsive to Ms. Zink's July 2013 request. By June 2015, the County had e-mailed Ms. Zink 12 installments of responsive records and was close to completing her April 17, 2014 request.

         On July 1, 2015, the County sent a written notice to 72 new individuals whose identities would be released in its response to Ms. Zink's April 17, 2014 request. The letter notified these individuals that the County had received a request for records that identified them as level I sex offenders. The letter also stated the County did not believe the records were exempt from release, but that it nonetheless was providing notice as permitted by RCW 42.56.540 because the records identified the individuals. The letter stated the County would release the records in their entirety on July 17, 2015, unless it was enjoined from doing so. The County never claimed an exemption for the records associated with these 72 individuals.

         John Doe, the plaintiff in this case, received one of these notices. The County possessed roughly five documents that contained his information. On July 16, 2015, he filed suit against both the County and the Zinks, seeking to enjoin the production of any records that identified him. The next day, the trial court issued a temporary restraining order enjoining the County from producing any records whatsoever associated with Ms. Zink's April 17, 2014 request.

         The County filed an answer to John Doe's complaint. It stated that it intended to produce the records Ms. Zink requested, and that it believed the records were nonexempt.

         The Zinks also filed an answer to John Doe's complaint. In it, they asserted a cross claim against the County for alleged violations of the PRA. They claimed the County was withholding the records without an applicable exemption and without providing an exemption log. They further claimed the County did not "need" to notify the John Does, and that it did so to delay or deny release of the requested records. CP at 30. They also claimed the County wrongfully disclosed their contact information to John Doe.

         John Doe moved for a preliminary injunction. The County opposed his motion, arguing that the records did not fall under any PRA exemption. The trial court entered an injunction and enjoined the County from releasing any documents responsive to Ms. Zink's April 17, 2014 records request without first redacting John Doe's information. Following the court's injunction, the County produced the responsive records to Ms. Zink with John Doe's information redacted.

         On August 26, 2015, the County moved to dismiss the Zinks' cross claim against it under CR 12(b)(6). The trial court concluded that the PRA gives the County the option of notifying third parties of records requests, and that the County did not violate the PRA by exercising that option. The trial court further reasoned that the PRA's penalty and attorney fee provision does not apply when a third party brings ...

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