Doe v. Dep't of Corr.

• Decision Date: 22 February 2018
• Docket Number: No. 94203-0,94203-0
• Citation: 190 Wash.2d 185,410 P.3d 1156
• Court: Washington Supreme Court
• Parties: John DOE G, John Doe I, and John Doe J, as individuals and on behalf of others similarly situated, Respondents, v. DEPARTMENT OF CORRECTIONS, State of Washington, and Donna Zink, a married woman, Petitioners.

190 Wash.2d 185

410 P.3d 1156

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

v.DEPARTMENT OF CORRECTIONS, State of Washington, and Donna Zink, a married woman, Petitioners.

No. 94203-0

Supreme Court of Washington.

Argued September 28, 2017

Filed February 22, 2018

Timothy John Feulner, Office of the Attorney General, Haley Christine Beach, Washington Attorney General's Office, 1125 Washington St. Se, Po Box 40116, Olympia, WA, 98504-0116, Department of Corrections A.g. Office, Attorney at Law, Po Box 40116, Olympia, WA, 98504-0116, Donna Zink (Appearing Pro Se), P.o. Box 263, Mesa, WA, 99343, for Petitioners.

Benjamin Blystad Gould, Keller Rohrback LLP, 1201 3rd Ave. Ste. 3200, Seattle, WA, 98101-3276, Prachi Vipinchandra Dave, Attorney at Law, 901 5th Ave. Ste. 630, Seattle, WA, 98164-2086, for Respondents.

Amy Irene Muth, Law Office of Amy Muth, PLLC, 1111 3rd Ave. Ste. 2220, Seattle, WA, 98101-3213, for Amicus Curiae on behalf of Washington Association of Criminal Defense Lawyers.

MADSEN, J.

¶ 1 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.

¶ 2 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.

FACTS

¶ 3 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.

¶ 4 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.

¶ 5 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.

¶ 6 On November 6, 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.

¶ 7 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 Wash. App. 609, 623, 391 P.3d 496, review granted, 188 Wash.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, 391 P.3d 496. 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, 391 P.3d 496. 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, 391 P.3d 496.

ANALYSIS

Standard of Review

¶ 8 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 Wash.2d 243, 252, 884 P.2d 592 (1994) (plurality opinion) ( PAWS II ).

¶ 9 A public record is virtually any record related to the government's conduct or performance. Nissen v. Pierce County, 183 Wash.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. PAWS II, 125 Wash.2d at 251, 884 P.2d 592 (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 Wash.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., 177 Wash.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 Wash.2d 123, 127, 580 P.2d 246 (1978).

SSOSA Overview

¶ 10 The Washington Legislature enacted the SSOSA as part of the Sentencing Reform Act of 1981, chapter 9.94A RCW. State v. Canfield, 154 Wash.2d 698, 701 n.1, 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).

¶ 11 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

¶ 12 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.

¶ 13 "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 Wash.2d at 251, 884 P.2d 592. Exempting information that is incidentally related to health care would be inconsistent with the PRA's broad disclosure policy.

¶ 14 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 Wash.2d 688, 693, 888 P.2d 142 (1995) ("The Legislature...