Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Doe v. Department of Corrections

Supreme Court of Washington, En Banc

February 22, 2018

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

          MADSEN, J

         Pro se petitioner Donna Zink and the Washington Department of Corrections (DOC) seek reversal of a published Court of Appeals decision, which affirmed the trial court's summary judgment ruling in favor of the respondents, John Does G, I, and J (John Does). This case presents two issues: (1) whether special sex offender sentencing alternative (SSOSA) evaluations are exempt from disclosure under the Public Records Act (PRA), chapter 42.56 RCW, because they contain "health care information, " and (2) whether pseudonymous litigation was proper in this action.

         We hold that SSOSA evaluations do not contain "health care information" because they are forensic examinations done for the purpose of aiding a court in sentencing a sex offender.[1] We also hold that pseudonymous litigation was improper in this action because the trial court did not adhere to the requirements of article 1, section 10 of the Washington Constitution and General Rule (GR) 15. Accordingly, we reverse the Court of Appeals.


         In July 2014, Zink sent a PRA request to the DOC for all SSOSA evaluations "held, maintained, in the possession of or owned" by the DOC since 1990. Clerk's Papers (CP) at 116. The DOC responded to Zink, intending to release the SSOSA evaluations on an installment basis. The DOC explained that it would review the SSOSA evaluations and make appropriate redactions as required under the PRA before disclosure.

         Washington classifies sex offenders as either level I, II, or III based upon the risk the offender poses to the community at large. RCW 72.09.345(6). The John Does are a class-all of whom underwent SSOSA evaluations-comprised of two former level I sex offenders who have been relieved of the duty to register, and one current and compliant level I sex offender. In response to Zink's PRA request, the John Does filed an action seeking to enjoin the DOC from releasing the SSOSA evaluations of level I sex offenders. They brought the action in pseudonym, naming the DOC as defendant and Zink as requester.

         On September 17, 2014, the John Does obtained a temporary restraining order (TRO), which prevented the DOC from releasing any SSOSA evaluations of level I sex offenders. Upon the TRO's expiration, the trial court granted the John Does a preliminary injunction. The court also granted the John Does' motion to proceed in pseudonym.

         On October 30, 2015, the trial court found that SSOSA evaluations were exempt from disclosure under RCW 70.02.250 and 71.05.445, granting the John Does' motion for summary judgment and issuing a permanent injunction against the DOC. The permanent injunction prevented the DOC from releasing the SSOSA evaluations of level I sex offenders.

         The DOC and Zink both appealed the trial court's summary judgment ruling. Additionally, Zink appealed the trial court's order allowing the John Does to proceed in pseudonym. Division One of the Court of Appeals affirmed. It found that "[b]ecause 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)."[2] John Doe G v. Dep't of Corr., 197 Wn.App. 609, 623, 391 P.3d 496, review granted, 188 Wn.2d 1008, 394 P.3d 1009 (2017). The court found that SSOSA evaluations "directly relate to offenders' health care" because, among other things, they contain medical and mental health information, include results of physical and psychological tests, and assess amenability to treatment. Id. at 622-23. The court also found that pursuant to the experience and logic test, the use of pseudonyms does not implicate article 1, section 10 of the Washington Constitution. Id. at 627-28. The court explained that experience and logic show that "the public's interest in the plaintiffs' names is minimal and use of those names would chill their ability to seek relief." Id. at 628.


         Standard of Review

         We review all agency actions taken or challenged under the PRA de novo. RCW 42.56.550(3). Pursuant to the PRA, "[c]ourts shall take into account the policy . . . that free and open examination of public records is in the public interest, even though such examination may cause inconvenience or embarrassment to public officials or others." Id. "[W]here the record consists only of affidavits, memoranda of law, and other documentary evidence, " we stand in the same position as the trial court. Progressive Animal Welfare Soc'y v. Univ. of Wash., 125 Wn.2d 243, 252, 884 P.2d 592 (1994) (plurality opinion) (PAWSIS).

         A public record is virtually any record related to the government's conduct or performance. Nissen v. Pierce County, 183 Wn.2d 863, 874, 357 P.3d 45 (2015); RCW 42.56.010(3). Additionally, the PRA's disclosure provisions must be construed liberally and exemptions narrowly. PAWSII, 125 Wn.2dat251 (citing RCW 42.17.010(11), .251, .920). To that end, "we start with the proposition that the act establishes an affirmative duty to disclose public records unless the records fall within specific statutory exemptions." Spokane Police Guild v. Liquor Control Bd., 112 Wn.2d 30, 36, 769 P.2d 283 (1989) (emphasis added). The party attempting to avoid disclosure bears the burden of proving an exemption applies. Ameriquest Mortg. Co. v. Office of Att'y Gen., Ill. Wn.2d 467, 486-87, 300 P.3d 799 (2013). The legislature enacted the PRA to ensure "broad disclosure of public records." Hearst Corp. v. Hoppe, 90 Wn.2d 123, 127, 580 P.2d 246 (1978).

         SSQSA Overview

         The Washington Legislature enacted the SSOSA as part of the Sentencing Reform Act of 1981, chapter 9.94A RCW. State v. Canfield, 154 Wn.2d 698, 701 n.l, 116 P.3d 391 (2005) (citing RCW 9.94A.670(2)). A SSOSA is a sentencing alternative that allows a trial court to suspend a first time sex offender's felony sentence if that offender meets certain statutory criteria. Id. Among other things, the court must impose a term of community custody and sex offender treatment as a condition to granting a SSOSA. RCW 9.94A.670(5)(b)-(c).

         If eligible, an offender who requested a SSOSA must undergo an evaluation to aid the court in determining whether the offender is "amenable to treatment, " and to assess the offender's "relative risk to the community." RCW 9.94A.670(3)(b). A SSOSA evaluation must, at a minimum, include

(i) The offender's version of the facts and the official version of the facts;
(ii) The offender's offense history;
(iii) An assessment of problems in addition to alleged deviant behaviors;
(iv) The offender's social and employment situation; and
(v) Other evaluation measures used.

RCW 9.94A.670(3)(a). SSOSA evaluations must be performed by a certified sex offender treatment provider and must also include "the evaluator's diagnostic impressions." RCW 9.94A.670(1)(a), .820(1); WAC 246-930-320(2)(f)(ii). However, the certified sex offender treatment provider who completed the offender's SSOSA evaluation is prohibited from providing subsequent treatment to the offender, except in limited circumstances. RCW 9.94A.670(13).

         Health Care Information

         The central issue in this case is whether SSOSA evaluations are exempt from public disclosure under the PRA because they contain "health care information." According to the PRA, "health care information" under chapter 70.02 RCW, the Uniform Health Care Information Act (UHCIA), is exempt from public disclosure. RCW 42.56.360(2). The UHCIA defines "health care information" as information "that identifies or can readily be associated with the identity of a patient and directly relates to the patient's health care." RCW 70.02.010(16). Furthermore, '"[h]ealth care' means any care, service, or procedure provided by a health care provider . . . [t]o diagnose, treat, or maintain a patient's physical or mental condition." RCW 70.02.010(14)(a). Thus, the pertinent inquiry is whether a SSOSA evaluation "directly relates to [a] patient's health care." RCW 70.02.010(16). We hold that it does not.

         "Directly" means "purposefully or decidedly and straight to the mark." Webster's Third New International Dictionary 641 (2002). The legislature could have defined "health care information" as any information related to health care. Instead, the legislature narrowed its definition to include only information directly related-or in other words-for the direct purpose of health care. The PRA requires a narrow reading of exemptions to disclosure. PAWS II, 125 Wn.2d at 251. Exempting information that is incidentally related to health care would be inconsistent with the PRA's broad disclosure policy.

         A SSOSA evaluation is not directly related to health care. Its purpose is to assist the court in determining whether the offender should be granted an alternative sentence instead of jail time. See State v. Young, 125 Wn.2d 688, 693, 888 P.2d 142 (1995) ("The Legislature developed the special sentencing provision for first-time sex offenders in an attempt to prevent future crimes and protect society."). More specifically, a SSOSA evaluation is a forensic examination, not a medical one.

         In State v. Sullivan, 60 Wn.2d 214, 223-24, 373 P.2d 474 (1962), we drew a distinction between forensic and medical examinations in the doctor-patient privilege context. We held that

a forensic examination by a physician is not within the statutory testimonial prohibitions of the doctor-patient privilege. The reasons are: the relationship of doctor and patient does not exist; the examination is not for the purpose of treatment, but for the publication of results. . . . "[T]here is no privilege when the examination is made by the physician for the express purpose of publishing the results-such, for example, as testifying in an action for personal injuries."

Id. (emphasis added) (citations omitted) (quoting Strafford v. N. Pac. Ry. Co., 95 Wash. 450, 453, 164 P. 71 (1917)). Although the facts of the current case do not concern the doctor-patient privilege, Sullivan stands for the proposition that forensic examinations are not subject to the same privacies and privileges as medical evaluations.

         SSOSA evaluations are made for the purpose of publishing the results to the court. When a SSOSA is requested, the court orders a SSOSA evaluation and uses the evaluation to assess whether the offender should be granted an alternative sentence. RCW 9.94A.670(3)-(4). Unlike typical health care evaluations, SSOSA evaluations are made with the understanding that they will be shared with others. The offender knows that in order to avail himself of the benefit of an alternative sentence, he must undergo this evaluation for court review.

         A SSOSA evaluation, unlike an ordinary health examination, focuses on the patient's health. In a SSOSA evaluation, the court must decide whether the offender is amenable to treatment and whether a SOSSA will serve public safety interests and the penological goal of rehabilitation. The court uses a SSOSA evaluation to consider, among other things, community impact, whether the alternative sentence is too lenient in light of the offense, and risk to the victim. RCW 9.94A.670(4). In other words, a medical evaluation assesses treatment options in the best interest of the patient, while a SSOSA evaluation assesses treatment options in the best interest of the court, the community, the victim, and the offender.

         It is also noteworthy that the treatment provider who completed the offender's SSOSA evaluation is prohibited from providing subsequent treatment to the offender, except in limited circumstances. RCW 9.94A.670(13). This indicates the legislature's intent to distinguish the forensic stage-the SSOSA evaluation-from the potentially medical stage-the SSOSA alternative itself.

         The John Does dispute that a SSOSA evaluation is a forensic examination, arguing that the purpose of the evaluation is to assess the offender's "amenability to treatment, " which, according to the John Does, actually means "to diagnose whether the offender's mental condition is amenable to health care." Suppl. Br. of Resp'ts at 5. In the John Does' view, SSOSA evaluations contain "health care information" because assessing "amenability to treatment" constitutes a medical determination. This is so, they argue, because the evaluator's "'diagnostic impressions'" and "'assessment of relative risk factors'" must be included in the SSOSA evaluation. Id. (quoting WAC 246-930-320(2)(f)(ii)-(iii)). The John Does also add that a SSOSA evaluation must include a "proposed treatment plan." RCW 9.94A.670(3)(b).

          We are unpersuaded by this argument. Assessing whether an offender is "amenable to treatment, " as required by the SSOSA statute, is a legal determination, not a medical one. In State v. McNallie, we held that

[o]ur purpose in requiring objective evidence regarding amenability to treatment is not to provide defendants with unlimited bites at the treatment apple. Courts faced with a prior history of failed attempts at therapy are free to consider this history in deciding on the defendant's current prognosis for rehabilitation. When that prognosis is poor, based on the failure of previous treatment attempts as shown by offenses occurring during treatment or soon thereafter, exceptionally long sentences are justified in order to protect the public from a defendant who is likely to reoffend. Nevertheless, in cases where there is no such treatment history, or there has been a very long period of offense-free behavior following therapy, an exceptional sentence cannot be sustained without "the opinion of a mental health professional that the defendant would likely not be amenable to treatment."

123 Wn.2d 585, 591-92, 870 P.2d 295 (1994) (footnote and citations omitted) (quoting State v. Pryor, 115 Wn.2d 445, 455, 799 P.2d 244 (1990)). Amenability to treatment is not a medical determination but, rather, a threshold inquiry that the court must make before deciding to grant an alternative sentence. The John Does' argument conflates SSOSA evaluations with SSOSA sentences-the purpose of a SSOSA evaluation is the primary issue in this case, not the purpose of a SSOSA sentence. While the purpose of a SSOSA sentence is to treat sex offenders who are amenable to treatment, the purpose of a SSOSA evaluation is to determine which sex offenders are eligible for a SSOSA-i.e., amenable to treatment.

         In deciding whether an offender is amenable to treatment, the sentencing court does not limit itself to medical inquiries. Rather, an offender

would not be "amenable to treatment" if the record establishes that (1) no treatment programs are available; (2) the defendant is ineligible for treatment at all available facilities due, for instance, to prior unsuccessful treatment; (3) the defendant refuses to cooperate with necessary evaluations to determine the usefulness of treatment; or (4) no facility is sufficiently secure to house the defendant during treatment.

State v. Miller, 60 Wn.App. 914, 919, 808 P.2d 186 (1991). A sentencing court is permitted to take any of these factors into account before deciding whether to grant a SSOSA to a specific offender. If the offender is unamenable to treatment, the court may decline to grant a SSOSA sentence, and the offender may never receive medical treatment as the result of a SSOSA evaluation. See RCW 9.94A.670.

         Finally, while a SSOSA evaluation requires a proposed treatment plan, that alone is not sufficient to render it "health care information." The treatment plan required by the SSOSA statute is not a traditional medical treatment plan. While the treatment plan must include some proposals regarding medical treatment, it must also include "[r]ecommendations for specific behavioral prohibitions, requirements and restrictions on living conditions, lifestyle requirements, and monitoring by family members and others that are necessary to the treatment process and community safety." WAC 246-930-320(2)(g)(iii).

         We conclude that SSOSA evaluations are forensic examinations made for the purpose of aiding a court in sentencing a sex offender. Accordingly, we hold that SSOSA evaluations are not exempt from PRA disclosure, as they do not contain "health care information, " nor do they fall within any other specific exemption.[3]


         The second issue is this case is whether the John Does should have been allowed to proceed in pseudonym. Zink argues that the trial court failed to follow GR 15 and the five-step framework required by Seattle Times Co. v. Ishikawa,97 Wn.2d 30, 37-39, 640 P.2d 716 (1982), before allowing the John Does ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.