Doe P v. Thurston County , 199 Wash. App. 280 ( 2017 )

Filed
Washington State
Court of Appeals
Division Two
June 20, 2017
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
JOHN DOE P; JOHN DOE Q; JOHN DOE R; No. 48000-0-II
and JOHN DOE S, as individuals and on
behalf of others similarly situated,
Respondents,
v.
THURSTON COUNTY, a municipal PUBLISHED OPINION
organization, and its departments the
THURSTON COUNTY PROSECUTING
ATTORNEY, and THURSTON COUNTY
SHERIFF,
Respondents,
DONNA ZINK, a married woman,
Appellant.
JOHANSON, J. — In response to Donna Zink’s Public Records Act1 (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)
1
Ch. 42.56 RCW.
No. 48000-0-II
and special sex offender disposition alternative2 (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 Wash. 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
2
RCW 9.94A.670 and RCW 13.40.162, respectively.
2
No. 48000-0-II
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 records4 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
3
Zink made a second request for all sex offender “[s]entencing and [j]udgment documents” held
in Thurston County and for all level I noncompliant or transient sex offenders’ registration forms
in December. Clerk’s Papers (CP) at 185. The County provided Zink with installments of these
records between January and May 2015.
4
Although the State disclosed level II and III sex offenders’ names, the State generally did not
disclose level I sex offenders’ names unless a sex offender had not complied with registration
requirements. Former RCW 4.24.550(5)(a).
3
No. 48000-0-II
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.
5
Zink had apparently e-mailed an answer and notice of appearance to the other parties but neither
filed these documents with the trial court before the hearing nor appeared at the hearing. Zink
filed her answer and notice of appearance in February.
6
At the hearing, the trial court acknowledged a concern in other cases regarding “speculation as
to impact or whether there is an actual controversy because the plaintiffs are not identified
anywhere in the record.” RP (Jan. 23, 2015) at 15. But these concerns were not present with the
John Does because it was “clear that there are individuals in each of the groups represented by the
[John Does], that it’s not speculative and that it would not be required to name [the John Does]
and then seal their names somewhere.” RP (Jan. 23, 2015) at 16.
4
No. 48000-0-II
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 Ishikawa7
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
7
Seattle Times Co. v. Ishikawa, 97 Wash. 2d 30, 640 P.2d 716 (1982).
8
In a cross motion for summary judgment, Zink sought to have the action dismissed.
9
The PRA’s “other statute” exemption exempts from production records that fall within “the
specific exemptions of [an] other statute which exempts or prohibits disclosure of specific
information or records.” RCW 42.56.070(1); WSP, 185 Wash. 2d at 372.
5
No. 48000-0-II
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
6
No. 48000-0-II
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 establishe[d]
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
10
These included the State’s sex offender risk level classification evaluation, news articles about
sex offenders’ offenses, a sex offender registration record obtained from another record request,
threatening e-mails sent to Zink in response to her records requests, the State attorney general’s
opinion letter that former RCW 4.24.550 was not an “other statute” PRA exemption, and
correspondence with another county revealing that the county had released SSOSA evaluations to
Zink.
7
No. 48000-0-II
redacted records could be disclosed and ruled that it did not authorize in camera review “at this
time.” CP at 671.
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 Wash. App. 606,
618, 350 P.3d 660 (2015). The PRA is a “‘strongly worded mandate for broad disclosure of public
records.’” WSP, 185 Wash. 2d at 371 (quoting Hearst Corp. v. Hoppe, 90 Wash. 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., 177 Wash. 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 Wash. 2d 628, 644, 115 P.3d 316 (2005). Disclosure provisions in the
PRA are to be interpreted liberally and exemptions narrowly. WSP, 185 Wash. 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:
11
Zink provides 42 assignments of error in her appellant’s brief, a number of which are
unsupported by argument or citation to legal authority; we do not address these unsupported
assignments of error. RAP 10.3.
8
No. 48000-0-II
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
Wash. 2d 775, 808, 246 P.3d 768 (2011).
B. SSOSA AND SSODA EVALUATIONS
“[T]he legislature developed [SSOSA] for first time offenders to prevent future crimes and
[to] protect society.” Koenig v. Thurston County, 175 Wash. 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 Wash. 2d 436, 439 n.1,
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).
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No. 48000-0-II
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)
[t]reatment” 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.670(13).
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 Wash. 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 consider whether a SSODA will benefit the offender
and the community to determine whether a SSODA is appropriate. RCW 13.40.162(3).
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No. 48000-0-II
Both SSOSA and SSODA examinations are conducted by sex offender treatment providers
under ch. 18.155 RCW. RCW 9.94A.670(13); RCW 13.40.162(7)(c). WAC regulations
promulgated under ch. 18.155 RCW require that evaluations contain, among other things, the
evaluator’s conclusions about the appropriateness of community treatment and “diagnostic
impressions.” WAC 246-930-320(2)(f)(i), (ii).
C. PERMANENT INJUNCTION
Zink and the County contend that the trial court improperly granted summary judgment of
the John Does’ permanent injunction request and enjoined the release of unredacted SSOSA and
SSODA evaluations. We disagree.
1. PRA’S UHCIA EXEMPTION
Zink and the County claim that the trial court erred as a matter of law when it determined
that the SSODA and SSOSA evaluations were exempt under the PRA’s UHCIA exemption, former
RCW 42.56.360(2).12 We disagree and affirm the trial court’s ruling that under the PRA’s UHCIA
exemption, the unredacted evaluations were not subject to disclosure.
a. OVERVIEW
The PRA’s UHCIA exemption states that “[c]hapter 70.02 RCW [the UHCIA] applies to
public inspection and copying of health care information of patients.” Former RCW 42.56.360(2).
In enacting the UHCIA, which addresses access to and disclosure of health care information, the
legislature found that “health care information ‘is personal and sensitive information that if
12
Zink also argues that the SSOSA evaluations were subject to disclosure under the juvenile
records statute, ch. 13.50 RCW, as an “other statute.” We hold that the SSODA and SSOSA
evaluations are exempt under the PRA’s UHCIA exemption, and thus we do not reach the issue of
whether the SSODA evaluations are exempt under ch. 13.50 RCW.
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No. 48000-0-II
improperly used or released may do significant harm to a patient’s interests in privacy, health care,
or other interests’” and “[i]t is the public policy of this state that a patient’s interest in the proper
use and disclosure of the patient’s health care information survives even when the information is
held by persons other than health care providers.” RCW 70.02.005(4) (emphasis added);
Bloedow, 187 Wash. App. at 611 (quoting RCW 70.02.005(1)).
The UHCIA generally provides that,
[e]xcept as authorized elsewhere in [the UHCIA], a health care provider, an
individual who assists a health care provider in the delivery of health care, or an
agent and employee of a health care provider may not disclose health care
information about a patient to any other person without the patient’s written
authorization.
RCW 70.02.020(1). “‘Health care information’” is “any 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).
In John Doe G v. Dep’t of Corrections, Division One of this court held that the PRA’s
UHCIA exemption prevented unredacted SSOSA evaluations’ disclosure because the evaluations
contained confidential health care information. 197 Wash. App. 609, 613-14, 391 P.3d 496 (2017),
review granted in part, 2017 WL 2351142.
b. “PATIENT”
Zink argues that the PRA’s UHCIA exemption does not apply because a sex offender is
not the “‘patient’” of an examiner. Br. of Appellant at 36. We disagree.
Under the UHCIA, a patient is one who “receives or has received health care” (RCW
70.02.010(32)), which is “any care, service, or procedure provided by a health care provider: (a)
[t]o diagnose, treat, or maintain a patient’s physical or mental condition.” RCW 70.02.010(14).
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No. 48000-0-II
The SSOSA statute generally provides that a sex offender treatment provider may not be the same
person that conducted the examination.13 RCW 9.94A.670(13).
Both SSOSA and SSODA statutes provide for an eligible person to be assessed to
determine amenability to treatment and that the assessment set forth a proposed treatment plan.
RCW 9.94A.670(3); RCW 13.40.162(2)(a)-(b). The evaluations must include, among other items,
information about the offender’s social and employment situation and “[a]n assessment of
problems in addition to alleged deviant behaviors.” RCW 9.94A.670(3)(a)(iii); RCW
13.40.162(2). Further, evaluations must include the examiner’s conclusions about the
appropriateness of community treatment, “diagnostic impressions,” and “specific assessment of
relative risk factors.” WAC 246-930-320(2)(f)(i)-(iii). Evaluations must also address “[m]ental
health functioning including coping abilities, adaptation style, intellectual functioning and
personality attributes.” WAC 246-930-320(2)(e)(ix).
To diagnose is to “identify (as a disease or condition) by symptoms or distinguishing
characteristics” or “to determine the causes of or the nature of by diagnosis.” WEBSTER’S THIRD
NEW INT’L DICTIONARY 622 (2002). The SSODA and SSOSA statutes and relevant WAC
regulations require that examiners diagnose offenders’ mental conditions because they require
identification and assessment of problems and deviant behaviors as well as the examiner’s
“diagnostic impressions.” See RCW 9.94A.670(3)(a); RCW 13.40.162(2); WAC 246-930-
320(2)(f)(i)-(iii); John Doe G, 197 Wash. App. at 622-23. Thus, offenders who participate in SSOSA
or SSODA evaluations receive “health care” because they receive diagnosis of a mental condition,
13
SSODA does not contain a similar provision.
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No. 48000-0-II
and the offenders are accordingly “patients” within the meaning of the UHCIA. RCW
70.02.010(14)(a), (32); accord John Doe G, 197 Wash. App. at 620, 623.
Zink argues that an offender is not the evaluator’s “patient” because the evaluator is not
the same person as the ultimate treatment provider. See RCW 9.94A.670(13). But this argument
fails because, as discussed, a SSOSA evaluator provides diagnosis within the UHCIA’s meaning,
even if the evaluator is not the only one who ultimately provides treatment. See RCW
70.02.010(14)(a). Thus, we reject Zink’s argument and hold that offenders receiving SSOSA or
SSODA evaluations are “patients” within the UHCIA’s meaning.
c. “HEALTH CARE INFORMATION”
The County contends that evaluations relate to sentencing, not to the provision of health
care, so that the evaluations do not contain “health care information.” Br. of Resp’t County at 4.
This argument fails.
“‘Health care information’” is “any 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). Nothing in the UHCIA supports the County’s narrow interpretation of “health care
information” to mean “‘for the sole purpose of’” offenders’ health care. John Doe G, 197 Wn.
App. at 621. Rather, as our Supreme Court has stated, a “SSOSA evaluation serves many
important functions.” Koenig, 175 Wash. 2d at 847. Thus, we reject the County’s interpretation and
hold that the evaluations are “health care information” under the UHCIA.
d. “HEALTH CARE PROVIDER”
The County argues that the County, not the examiner, would disclose the information and
that the County is not a health care provider, even if the examiner is. Thurston County relies on
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No. 48000-0-II
RCW 70.02.020, a UHCIA provision that governs “[d]isclosure by [a] health care provider” and
bars a health care provider’s (or a provider’s agent’s, employee’s, or assistant’s) disclosure of
health care information with a patient’s authorization. We disagree.
The purpose of the PRA’s exemptions is “solely to protect relevant privacy rights or vital
governmental interests” that may outweigh the PRA’s broad policy in favor of disclosure of public
records. Resident Action Council, 177 Wash. 2d at 432. The PRA’s exemptions are concerned with
the category of privacy right or governmental interest implicated. See Resident Action Council,
177 Wash. 2d at 434. Thus, the PRA’s exemptions are concerned not with where the information
originated, but with the privacy right or government interest implicated by the type of information.
See Resident Action Council, 177 Wash. 2d at 432, 434.
With this principle in mind, we decline to hold that the protections of the PRA’s UHCIA
exemption disappear when health care information is held by an agency, such as the County, rather
than a health care provider. Such an interpretation defeats the purpose of PRA exemptions by
protecting an individual’s privacy interest in health care information only for as long as the
information is held by a health care provider or its assistant, agent, or employee. See Resident
Action Council, 177 Wash. 2d at 432, 434. This interpretation is also consistent with the UHCIA
exemption’s language; the exemption applies to “public inspection and copying of health care
information of patients.” Former RCW 42.56.360(2).
Our interpretation is supported by Supreme Court precedent interpreting the PRA’s
UHCIA exemption; in Prison Legal News, the court held that the UHCIA’s health care exemption
prohibits the disclosure of “‘health care information’” without the patient’s written consent. 154
Wash. 2d at 644. In doing so, the court discussed only two requirements for information to constitute
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No. 48000-0-II
“health care information”: patient identification and information about the patient’s health care.14
See Prison Legal News, 154 Wash. 2d at 644-45. Thus, Prison Legal News buttresses our conclusion
that what matters for the PRA’s UHCIA exemption to apply is not the information’s holder, but
the information’s nature.
Division One adopted a similar interpretation in John Doe G. There, the court noted that
“[a]lthough RCW 70.02.020(1) applies only to ‘a health care provider, an individual who assists a
health care provider in the delivery of health care, or an agent and employee of a health care
provider,’” the PRA’s UHCIA exemption “incorporates RCW 70.02.020 into the PRA and thus
restricts disclosures by” an agency. John Doe G, 197 Wash. App. at 620 n.32. Thus, the PRA’s
UHCIA exemption restricted the Department of Corrections (DOC) from disclosing evaluations,
although the DOC was “likely . . . not” a health care provider or its agent, assistant, or employee.
John Doe G, 197 Wash. App. at 620 n.32.
Finally, our holding is consistent with the UHCIA’s express purpose. The UHCIA’s
legislative findings state that “[i]t is the public policy of this state that a patient’s interest in the
proper use and disclosure of the patient’s health care information survives even when the
information is held by persons other than health care providers.” RCW 70.02.005(4) (emphasis
added). For these reasons, we hold that the health care information in the evaluations is exempt
from disclosure under the PRA, even though the information is held by the County.
14
As discussed, the SSOSA and SSODA evaluations both identify a patient—the offender—and
contain information about the patient’s health care.
16
No. 48000-0-II
e. INAPPLICABILITY OF KOENIG AND CONCLUSION
The County next argues that Koenig controls and holds that SSOSA evaluations must be
provided pursuant to a public records request. This argument lacks merit.
In Koenig, our Supreme Court considered whether SSOSA evaluations fell within the
investigative records exemption to the PRA. 175 Wash. 2d at 840. The majority held that to be
exempt as investigative records, the evaluations had to be “investigative in nature; . . . compiled
by an investigative, a law enforcement, or a penology agency; and . . . essential to law enforcement
or essential to the protection of privacy.” Koenig, 175 Wash. 2d at 843. The majority further held
that the evaluations failed the first part of the test because they were not investigative and thus did
not reach “whether these documents are essential to effective law enforcement or for the protection
of any individual’s right to privacy.” Koenig, 175 Wash. 2d at 849.
Thus, the County is wrong that Koenig mandates that SSOSA evaluations be disclosed;
rather, Koenig holds that SSOSA evaluations are not exempt as investigative records. 175 Wash. 2d
at 840. Koenig did not address the PRA’s UHCIA exemption because the parties did not argue
that the SSOSA evaluations fell within that exemption. 175 Wash. 2d at 867 n.4 (J. J.M. Johnson,
dissenting). Further, although Justice J.M. Johnson’s dissent discussed the UHCIA exemption, it
did so tangentially, to bolster its conclusion that exemption of the evaluations was essential to the
protection of privacy. Koenig, 175 Wash. 2d at 866-67 (J. J.M. Johnson, dissenting). Thus, the
majority did not reject a theory that the SSOSA evaluations were exempt under other provisions
of the PRA, as the County implies.
For the reasons discussed, we hold that the SSOSA and SSODA evaluations fall within the
UHCIA’s prohibition against disclosure of “health care information” about a “patient” and thus
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No. 48000-0-II
are exempted from disclosure under the PRA. See RCW 70.02.020(1). Koenig does not compel
a different outcome. Accordingly, we hold that the trial court did not err when it concluded that
the unredacted SSOSA and SSODA evaluations are exempt from disclosure under the PRA,
former RCW 42.56.360(2).
2. OTHER PERMANENT INJUNCTION REQUIREMENTS
Zink briefly argues that the trial court erred when it concluded that disclosure would
substantially and irreparably harm the class members and would not be in the public interest. She
claims that the evaluations are of great importance to the public “in determining whether our courts
are following our laws and sentencing requirements for sex offenders.” Reply Br. of Appellant at
18. We disagree.
An injunction is appropriate under the PRA’s injunction statute where the trial court
concludes that an exemption applies and that the disclosure would not be in the public interest and
would substantially and irreparably damage a person. RCW 42.56.540; Yakima Herald-Republic,
170 Wash. 2d at 808.
Here, the John Does submitted numerous, detailed declarations explaining that the
evaluations contained extremely personal, sensitive information that the John Does provided in
confidence. The declarations also showed that the evaluations’ disclosure would not be in the
public interest because disclosure would result in sex offenders being less forthcoming during
evaluations, resulting in less effective treatment, and would harm not only the offenders, but also
the offenders’ families and others identified in the evaluations.15
15
In response, Zink submitted news articles about sex offenders, some of whom had received
SSOSAs and one of whom had violated his SSOSA by failing to report, and a variety of other
documents related to sex offender registration records requests.
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When the trial court granted the John Does’ summary judgment motion, it found that the
John Does’ declarations were “uncontested” and provided evidence of the substantial and
irreparable harm of unredacted disclosure and that “the record establishe[d] that unredacted
disclosure would not be in the public interest.” CP at 658. Thus, the trial court concluded that the
John Does were entitled to 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.
Zink fails to explain how the trial court’s conclusion, based on the John Does’ declarations,
that unredacted disclosure would substantially and irreparably harm the class members and would
not be in the public interest was wrong. Notably, Zink does not claim that the trial court’s finding
that the Does’ records were “uncontested” evidence was erroneous. Rather, the extent of Zink’s
argument is her conclusory, unsupported statement in her reply brief that “SSOSA evaluation[s]
are of great importance to the public in determining whether our courts are following our laws and
sentencing requirements for sex offenders.” Reply Br. of Appellant at 18. We hold that the trial
court properly concluded that the John Does had met their burden to show substantial and
irreparable harm and that disclosure was not in the public interest.
The trial court properly concluded that unredacted SSOSA and SSODA evaluations were
exempt under the PRA’s UHCIA exemption and that their unredacted disclosure would not be in
the public interest and would result in substantial and irreparable harm. Thus, we affirm the trial
court’s order granting summary judgment and a permanent injunction.
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No. 48000-0-II
D. OTHER STATUTORY ARGUMENTS
1. SENTENCING REFORM ACT—PROSECUTORIAL STANDARDS
Zink further contends that the SRA’s prosecutorial standards, RCW 9.94A.475 and RCW
9.94A.480(1), require that evaluations be maintained as public records and in the prosecuting
attorney’s office so that the trial court erred as a matter of law when it granted summary
judgment.16 This argument fails.
RCW 9.94A.401 to .480 contains “prosecutorial standards” that are “intended solely for
the guidance of prosecutors [and] are not intended to . . . create a right or benefit, substantive or
procedural, enforceable at law by a party in litigation with the state.” RCW 9.94A.401. Thus,
Zink cannot rely on these statutes to compel disclosure of the evaluations, which are otherwise
exempted from disclosure under the PRA. Zink’s argument does not show that the SRA’s
prosecutorial standards require the SSOSA and SSODA evaluations’ disclosure.
2. CRIMINAL RECORDS PRIVACY ACT
Zink next argues that the evaluations must be released under the CRPA, ch. 10.97 RCW,
because they are “conviction records,” subject to dissemination without restriction, so that the trial
court erred when it granted summary judgment for the John Does. RCW 10.97.030(3), .050(1).
Underlying Zink’s argument is her contention that the evaluations contain “[c]riminal history
information” and thus are subject to disclosure in their entirety. We disagree.
16
RCW 9.94A.475 provides that for certain felonies, “[a]ny and all recommended sentencing
agreements or plea agreements and the sentences for any and all felony crimes shall be made and
retained as public records.” RCW 9.94A.480(1) provides for judgment and sentencing documents
to be kept by the sentencing judge and prosecuting attorney’s office.
20
No. 48000-0-II
Conviction records, which “may be disseminated without restriction,” RCW 10.97.050(1),
are a type of “criminal history record information relating to an incident which has led to a
conviction or other disposition adverse to the subject.” RCW 10.97.030(3). The CRPA provides
that “[n]othing in . . . chapter 42.56 RCW [the PRA] precludes dissemination of criminal history
record information, including nonconviction data, for the purposes of this chapter.” RCW
10.97.140 (emphasis added). Thus, the CRPA governs dissemination of criminal history record
information, which is defined as
information contained in records collected by criminal justice agencies, other than
courts, on individuals, consisting of identifiable descriptions and notations of
arrests, detentions, indictments, informations, or other formal criminal charges,
and any disposition arising therefrom, including acquittals by reason of insanity,
dismissals based on lack of competency, sentences, correctional supervision, and
release.
The term includes any issued certificates of restoration of opportunities and
any information contained in records maintained by or obtained from criminal
justice agencies, other than courts, which records provide individual identification
of a person together with any portion of the individual’s record of involvement in
the criminal justice system as an alleged or convicted offender.
RCW 10.97.030(4) (emphasis added).
Accordingly, “‘[c]riminal history record information’” is essentially identifiable
descriptions of offenders coupled with notations of formal criminal charges and the disposition
arising therefrom. See RCW 10.97.030(4); accord Bainbridge Island Police Guild v. City of
Puyallup, 172 Wash. 2d 398, 422, 259 P.3d 190 (2011). Even if we agree with Zink that the
evaluations likely contain some “criminal history record information,” other information that the
evaluations necessarily contain falls outside that definition.
For instance, SSOSA and SSODA evaluations must include an assessment of the offender’s
problems and alleged deviant behaviors, the offender’s social and employment situation, and a
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No. 48000-0-II
proposed treatment plan. RCW 9.94A.670(3); RCW 13.40.162(2). Further, SSOSA evaluations
must include descriptions of specific activities that are precursors to offenses, such as viewing
pornography or using controlled substances. RCW 9.94A.670(3)(b)(v). WAC 246-930-320,
providing “[s]tandards for assessment and evaluation reports,” creates a laundry list of other details
that evaluations must include, such as the offender’s “(ii) . . . sexual history,” “patterns of sexual
arousal/preference/interest,” prior treatment, alcohol and drug abuse, stress, mood, sexual patterns,
use of pornography, social and environmental influences, relationships, employment, education,
family history, and mental health functioning. WAC 246-930-320(2)(e).
This list of information that must be contained in an evaluation exceeds the CRPA’s
definition of criminal history: “information . . . consisting of identifiable descriptions and
notations of . . . formal criminal charges, and any disposition arising therefrom” and including
“information contained in records [that] provide individual identification of a person together with
any portion of the individual’s record of involvement in the criminal justice system as an alleged
or convicted offender.” RCW 10.97.030(4).
We decline to hold that simply because an evaluation may contain criminal history
information, then necessarily the entire evaluation becomes subject to disclosure under the CRPA.
Merely because the evaluations may contain information describing an offender and noting formal
criminal charges and their disposition does not convert other information about an offender, such
as alleged deviant behaviors, social and employment situation, precursor activities, sexual history,
sexual preferences, family and social relationships, and mental health functioning, into criminal
history information. We hold that Zink fails to show that the unredacted evaluations are subject
to disclosure under the CRPA.
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No. 48000-0-II
II. USE OF PSEUDONYMS
Zink contends that the John Does should not have been allowed to proceed under
pseudonyms because CR 4(b)(1)(i), 10(a), and 17(a) operate to bar them from proceeding under
pseudonyms. Further, Zink argues that the trial court erred when it ruled that allowing the plaintiffs
to proceed under pseudonyms did not amount to sealing the record, implicating Zink’s right to the
open administration of justice under article I, section 10 of the Washington Constitution17 and thus
did not require conducting an Ishakawa analysis. We hold that Zink waived her argument.
We do not consider arguments first raised on review unless, as relevant here, a party claims
manifest error affecting a constitutional right. RAP 2.5(a)(3). To show manifest error affecting a
constitutional right, the appellant must identify that the error is of constitutional magnitude and
resulted in actual prejudice—practical and identifiable consequences in the trial court. RAP
2.5(a)(3); In re Adoption of K.M.T., 195 Wash. App. 548, 567, 381 P.3d 1210 (2016), review denied,
187 Wash. 2d 1010 (2017).
Here, Zink, who was named as a defendant in the John Does’ complaint, did not file a
motion opposing the John Does’ request to proceed under pseudonyms and did not appear at the
hearing on that request. At the hearing, the trial court noted that Zink was aware of the hearing,
understood court filing procedures, and had nevertheless chosen not to appear. The County did
not oppose the John Does’ request to proceed under pseudonyms. Accordingly, Zink has waived
her argument regarding the use of pseudonyms unless she claims manifest error affecting a
constitutional right. RAP 2.5(a)(3).
17
Article I, section 10 provides that “[j]ustice in all cases shall be administered openly, and without
unnecessary delay.” Thus, we presume that court records will be made open and available for
public inspection. Rufer v. Abbott Labs., 154 Wash. 2d 530, 540, 114 P.3d 1182 (2005).
23
No. 48000-0-II
Arguably, Zink has alleged an error of constitutional magnitude—she claims that the trial
court’s decision to allow the plaintiffs to proceed under pseudonyms implicated her right to the
open administration of justice. See K.M.T., 195 Wash. App. at 567. However, to preserve her claim
under RAP 2.5(a)(3), Zink must show further that the asserted error had practical and identifiable
consequences in the trial court. See K.M.T., 195 Wash. App. at 567. This, Zink is unable to do.
Zink claims that she was prejudiced by the use of pseudonyms because the trial court could
not verify that the offenders were interested parties—people “named in the record[s] or to whom
the record[s] specifically pertains”—without knowing the offenders’ identities. RCW 42.56.540.
But this argument lacks merit: although the John Does’ names were unknown, it was clear that
they were level I sex offenders and that they were named in registration records that Zink sought
to have disclosed. Zink cannot show that allowing the John Does to proceed under pseudonyms
had practical and identifiable consequences. See K.M.T., 195 Wash. App. at 567. Accordingly, we
hold that Zink waived her challenge to the trial court’s decision to allow the John Does to proceed
under pseudonyms.
III. CLASS CERTIFICATION
Finally, Zink argues that the trial court abused its discretion when it certified the class.
Zink claims that a class action improperly broadens the PRA, RCW 42.56.540, which provides for
a person named in a record to bring a suit enjoining the release of that record. Again, we hold that
Zink waived her class certification argument.
Zink failed to oppose the John Does’ class certification motion or, as discussed, to appear
at the hearing on the class certification motion and request to proceed under pseudonyms. The
County did not oppose the John Does’ request to proceed under class certification. Neither does
24
No. 48000-0-II
Zink allege a constitutional error or other error that may first be raised in the appellate court. See
RAP 2.5. Thus, we hold that Zink waived her class certification argument.
IV. APPELLATE ATTORNEY FEES
Of the parties, only Zink requests an award of her appellate attorney fees should she
substantially prevail. As discussed, Zink’s arguments on appeal all either fail or have been waived.
Accordingly, Zink does not substantially prevail, and we decline to award Zink her appellate
attorney fees.
The trial court properly granted summary judgment, permanently enjoined the disclosure
of unredacted SSOSA and SSODA evaluations, certified the class, and granted the John Does’
request to proceed by pseudonym.
We affirm.
JOHANSON, J.
We concur:
BJORGEN, C.J.
MELNICK, J.
25