Doe v. Dep't of Corr.
| Decision Date | 23 January 2017 |
| Docket Number | No. 74354-6-I (,C/w No. 74355-4-I),74354-6-I ( |
| Citation | 197 Wash.App. 609,391 P.3d 496 |
| Parties | JOHN DOE G, John Doe I, and John Doe H, as individuals and on behalf of others similarly situated, Respondents, v. DEPARTMENT OF CORRECTIONS, State of Washington, Appellant, Donna Zink, a married woman, Appellant. |
| Court | Washington Court of Appeals |
Timothy John Feulner, Office of the Attorney General, P.O. Box 40116, Olympia, WA, 98504-0116, for Appellant.
Benjamin Blystad Gould, Keller Rohrback LLP, 1201 3rd Ave., Ste. 3200, Seattle, WA, 98101-3276, Prachi Vipinchandra, Esq. Dave, Attorney at Law, 901 5th Ave., Ste. 630, Seattle, WA, 98164-2086, Timothy John Feulner, Office of the Attorney General, P.O. Box 40116, Olympia, WA, 98504-0116, for Respondents.
Donna Zink (Appearing Pro Se), Jeff Zink (Appearing Pro Se), 109 N. Powell Avenue, Mesa, WA, 99343, for Other Parties.
Leach, J.¶1 The Department of Corrections (Department) and Donna Zink each appeal a trial court order enjoining disclosure of certain special sex offender sentencing alternative (SSOSA) evaluations. Zink submitted a Public Records Act (PRA)1 request for all SSOSA evaluations since 1990. The respondents (collectively Doe), a class of level I sex offenders, sued to prevent the Department from disclosing their evaluations. The trial court enjoined the Department from releasing SSOSA evaluations of level I sex offenders who, as of the request date, had complied with their conditions of supervision. Because each evaluation necessarily includes a diagnosis of the offender's mental conditions, it contains confidential health care information under Washington's Uniform Health Care Information Act (UHCIA).2 Without redaction of this information, they are thus exempt from PRA disclosure. Because experience and logic show that allowing plaintiffs to use pseudonyms in these circumstances does not implicate the Washington Constitution, the trial court did not err in allowing the plaintiffs to proceed under pseudonyms. And because the PRA does not prohibit plaintiffs from suing as class representatives, the trial court did not err in certifying the class here. We affirm.
FACTS
¶2 The Washington Legislature enacted SSOSA as part of the Sentencing Reform Act of 1981.3 SSOSA provides a sentencing alternative for first time sex offenders.4 It allows a trial court to suspend an offender's felony sentence if the offender meets certain statutory criteria.5 When doing this, the court must impose certain conditions, including sex offender treatment and a term of community custody.6
¶3 To be considered for a SSOSA, an eligible offender must undergo an evaluation to determine whether the offender is "amenable to treatment."7 An offender is amenable to treatment if the offender and the community will benefit from community-based treatment given the offender's background, history, social and economic circumstances, and psychological condition.8 With narrow exceptions, the evaluation must be performed by a health professional certified by the Department of Health (DOH) to examine and treat sex offenders.9 The statute generally prohibits the same provider from treating the offender if the offender receives a SSOSA.10
¶4 The SSOSA evaluation assesses "the offender's amenability to treatment and relative risk to the community."11 The evaluation must contain, at a minimum, the offender's and the official versions of the crime, the offender's criminal history, "[a]n assessment of problems in addition to alleged deviant behaviors," information about the offender's employment and social life, and any other evaluation measures the provider used.12 Based on these factors, the provider must assess the appropriateness of community treatment, summarize its "diagnostic impressions," assess factors affecting risk to the community, assess the offender's willingness to participate, and propose a treatment plan.13
¶5 If the offender meets the statutory criteria and undergoes an evaluation, the trial court then must consider a number of circumstances, including the victim's opinion in particular, and decide if a SSOSA sentence is appropriate.14
¶6 The Department supervises offenders who receive a SSOSA.15 Unlike other mental health treatment information, the Department does not receive a SSOSA evaluation from the provider. Rather, either the prosecutor or defense attorney usually provides the evaluation to the community corrections officer investigating the offender's history.
¶7 Doe submitted unrebutted expert testimony that SSOSA sentences are effective. A 2005 study commissioned by the legislature found that offenders who complete SSOSA sentences have the lowest recidivism rates for any type of crime, including sex offenses—rates less than one third those of other offenders.16 Nonetheless, SSOSA sentences are increasingly rare in practice even among eligible offenders. In 2005, 35 percent of offenders who met the statutory criteria received SSOSA sentences, down from 59 percent in 1986. In 2012, only 95 offenders in the state received a SSOSA sentence.
¶8 In July 2014, Donna Zink made a PRA request for all SSOSA evaluations "maintained, in the possession of or owned by the Washington State Department of Corrections from January 1, 1990 to the present." The Department responded that it would produce the evaluations after reviewing each one to determine if it contained exempt information, including victims' names. Doe filed this action to enjoin the Department from releasing evaluations of level I sex offenders.
¶9 The plaintiffs are current or former level I sex offenders who underwent SSOSA evaluations. Level I offenders are those who the Department's end-of-sentence review committee determines pose the lowest risk to the public.17
¶10 The trial court first granted a temporary restraining order and then a preliminary injunction against the Department.18 It also allowed the plaintiffs to use pseudonyms and to represent a certified class of compliant level I offenders who have received SSOSA evaluations since 1990.19
¶11 Later, the trial court granted summary judgment for the plaintiffs, finding that RCW 71.05.445 and ch. 70.02 RCW exempt the evaluations from disclosure. The court permanently enjoined the Department from fulfilling Zink's request. Zink and the Department appeal.
STANDARD OF REVIEW
¶12 This court reviews de novo a trial court's PRA decisions about exemptions and injunctions.20 This court also reviews the record de novo in PRA cases where "the record consists of only affidavits, memoranda of law, and other documentary evidence, and where the trial court has not seen or heard testimony requiring it to assess the witnesses' credibility or competency."21 When a party seeking summary judgment initially shows the absence of any material issue of fact for trial, the party opposing summary judgment must produce evidence of specific facts sufficient to show a material issue.22
ANALYSIS
Health Care Information Exemption
¶13 The PRA requires state agencies to make records "available for public inspection and copying" unless the records are exempt under the PRA or an "other statute which exempts or prohibits disclosure of specific information or records."23 Doe asserts that both the PRA and two "other statute[s]" exempt the records Zink requested. We agree with Doe that the unredacted evaluations that the Department intended to release are exempt from the PRA's general disclosure provision because they contain confidential health care information. We do not decide if the records can be sufficiently redacted to protect this information.
¶14 As a preliminary matter, and contrary to Zink's arguments, the Supreme Court's decision in Koenig v. Thurston County 24 does not dispose of Doe's exemption arguments. The Supreme Court considered only whether the PRA exemption for investigative records applies to SSOSA evaluations and victim impact statements.25 "In cases where a legal theory is not discussed in the opinion, that case is not controlling on a future case where the legal theory is properly raised."26
¶15 The PRA includes an exemption for patients' health care information.27 This exemption incorporates the confidentiality provisions of Washington's UHCIA.28 This act protects health care information and information about mental health services.
¶16 The UHCIA prohibits disclosure of "health care information about a patient" without the patient's consent. 29
This prohibition applies 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." "Health care information" includes "any information ... that identifies or can readily be associated with the identity of a patient and directly relates to the patient's health care."30 Thus, information in SSOSA evaluations is confidential under the UHCIA and exempt under the PRA if the offenders receiving the evaluations are "patients," that information identifies "or can readily be associated with" an offender's identity, and the evaluation "directly relates" to the offender's health care.31 Information in the evaluations satisfies each of these requirements.
¶17 First, offenders are "patients" under the UHCIA. The act defines a "patient" as "an individual who receives or has received health care."32 This broad definition shows no intent for the term "patient" to limit what qualifies as "health care information."33 Instead, the Supreme Court's decisions interpreting RCW 70.02.020 note only two requirements for "health care information": patient identifiability and information about patient health care.34
¶18 Second, SSOSA evaluations identify offenders. A party opposing PRA disclosure must show "each patient's health care information is ‘readily associated’ with that patient" for the exemption to apply.35 "Where there is a dispute over whether health care information is readily identifiable with a specific patient even when that patient's identity is not...
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