JOHN DOE G, JOHN DOE I, and JOHN DOE J as individuals and on behalf of others similarly situated, Respondents,
DEPARTMENT OF CORRECTIONS, STATE OF WASHINGTON, and DONNA ZINK, a married woman, Petitioners.
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.
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. 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.
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
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
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.
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.
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)." 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.
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).
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).
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
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
(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
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.
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.
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.
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 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.
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.
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.
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).
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
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.
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).
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.
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 ...