Doe v. Wash. State Patrol, 90413–8.

• Citation: 185 Wash.2d 363,374 P.3d 63
• Decision Date: 07 April 2016
• Docket Number: No. 90413–8.,90413–8.
• Parties: John DOE A, a minor, by and through his legal guardians, Richard ROE and Jane Roe; and John Doe B, a married man, as individuals and on behalf of others similarly situated, Respondents, v. WASHINGTON STATE PATROL, an agency of the State of Washington; and Donna Zink, a married woman, Appellants. John Doe C, a minor, by and through his legal guardians, Richard Roe C and Jane Roe C; John Doe D, a minor, by and through his legal guardians, Richard Roe D and Jane Roe D; John Doe E; and John Doe F, as individuals and on behalf of others similarly situated, Respondents, v. Washington Association of Sheriffs and Police Chiefs, Defendant, and Donna Zink, Appellant.
• Court: United States State Supreme Court of Washington

185 Wash.2d 363

374 P.3d 63

John DOE A, a minor, by and through his legal guardians, Richard ROE and Jane Roe; and John Doe B, a married man, as individuals and on behalf of others similarly situated, Respondents

v.WASHINGTON STATE PATROL, an agency of the State of Washington; and Donna Zink, a married woman, Appellants.

John Doe C, a minor, by and through his legal guardians, Richard Roe C and Jane Roe C; John Doe D, a minor, by and through his legal guardians, Richard Roe D and Jane Roe D; John Doe E; and John Doe F, as individuals and on behalf of others similarly situated, Respondents

v.Washington Association of Sheriffs and Police Chiefs, DefendantandDonna Zink, Appellant.

No. 90413–8.

Supreme Court of Washington, En Banc.

Argued Sept. 17, 2015.

Decided April 7, 2016.

Shelley Anne Williams, Attorney General Office, John Christopher Hillman, Atty. General's Office, Criminal Justice, Criminal Justice–Criminal Litigation Unit Atty. General, Attorney at Law, Seattle, WA, Rebecca R. Glasgow, Attorney General's Office, Olympia, WA, Donna Zink (Appearing Pro Se), Mesa, WA, for Appellants.

Michael E. McAleenan Jr., Morgan Kathleen Edrington, Smith Alling, P.S., Tacoma, WA, Jeff Zink (Appearing Pro Se), Mesa, WA, for Defendant.

Vanessa Torres Hernandez, ACLU of Washington, Steven Walter Fogg, David Benjamin Edwards, Corr Cronin Michelson Baumgardner Fogg & Moore LLP, Seattle, WA, for Respondents.

Amy Irene Muth, Law Office of Amy Muth, PLLC, Seattle, WA, amicus counsel for Washington Association of Criminal Defense Lawyers.

MADSEN

, C.J.

¶ 1 At issue is whether RCW 4.24.550

, a community notification statute relating to registered sex offenders, constitutes an “other statute” under the Public Records Act (PRA), chapter 42.56 RCW, that would exempt the blanket release of level I sex offender registration information from a PRA request. Appellant Donna Zink made several public records requests with the Washington State Patrol (WSP) and the Washington Association of Sheriffs and Police Chiefs (WASPC) for documents pertaining to level I registered sex offenders. Both the WSP and WASPC intended to grant her request, but the WASPC notified several of the John Does that their records had been requested. The John Does in turn filed suit to enjoin production of the records. The trial court granted the injunction. We granted direct review and now reverse the trial court. We hold that RCW 4.24.550

, and specifically RCW 4.24.550(3)(a), is not an “other statute” exemption under RCW 42.56.070(1) of the PRA.

FACTS

¶ 2 Appellant Zink, a Washington resident, submitted three public records requests relating to sex offender registration information. The first request sought a copy of the WSP's “Sex and Kidnapping Offender Database.” The second request sought e-mail correspondence between the WSP and Benton County for a specific period. The responsive records included an extract of the Sex and Kidnapping Offender Database. The third request was to the WASPC for sex offender registration forms pertaining to offenders with a last name beginning with the letter “A” and sex offender registration files pertaining to offenders with a last name beginning with the letter “B.” Both the WSP and WASPC were prepared to release the records to Zink. However, before doing so, the WASPC notified affected level I sex offenders—those classified as the least likely to reoffend—that their records had been requested and that it intended to fulfill the request absent a court order enjoining it from doing so.

¶ 3 These level I offenders, the John Does, filed two different class action lawsuits seeking to enjoin disclosure of their records to Zink. One lawsuit named the WSP and Zink as defendants. The other named the WASPC as the defendant and Zink as the “[r]equestor.”¹ Clerk's Papers at 1641. The trial court consolidated the lawsuits.

¶ 4 The John Does sought a declaratory ruling that level I sex offender registration records are exempt from disclosure under the PRA because an “other statute” governs such requests. They also sought a permanent injunction to bar the blanket release of level I sex offender registration information. The John Does argued that RCW 4.24.550

, the community protection act, which authorizes an agency's public dissemination of information regarding registered sex offenders, was an “other statute” under the PRA, thus exempting the records from production. The trial court granted the John Does' motion for summary judgment and permanent injunction. The court issued a declaratory ruling stating that “level I sex offender registration records are exempt from disclosure under [the PRA because] ... RCW 4.24.550

provides the exclusive mechanism for public disclosure of sex offender registration records.” Id. at 568. It further ruled that the

WSP and WASPC may disclose “relevant and necessary” level I sex offender records in response to a request under

RCW 4.24.550

by a member of the general public, after considering in good faith the offender's risk classification, the places where the offender resides or is expected to be found, and the need of the requestor to protect individual and community safety.

Id. at 568–69. The trial court clarified its injunctive order and ruled that “sex offender records” are

the source documents submitted by local law enforcement agencies to the WSP, the WSP's Sex and Kidnapping Offender Registration Database (database), any extracts from the database, and names of the class members in emails, to or from employees of the WSP's Criminal Records Division, that relate to a source document or the database.

Id. at 628.

¶ 5 Zink and the WSP appealed directly to this court. The WASPC filed a brief supporting direct review. This court granted direct review, and we now reverse the trial court. We hold that RCW 4.24.550

is not an “other statute” under the PRA and that the records should have been released to Zink. We also hold that under the PRA and Confederated Tribes of Chehalis v. Johnson, 135 Wash.2d 734, 958 P.2d 260 (1998), Zink is not entitled to attorney fees, costs, or penalties.

ANALYSIS

Standard of Review

¶ 6 When an agency intends to release records to a requester under the PRA, an interested third party—to whom the records specifically pertain—may seek to enjoin disclosure. RCW 42.56.540

; Spokane Police Guild v. Liquor Control Bd., 112 Wash.2d 30, 34–35, 769 P.2d 283 (1989). In an action brought under the injunction statute, RCW 42.56.540, the party seeking to prevent disclosure, here the John Does, bears the burden of proof. Ameriquest Mortg. Co. v. Office of Att'y Gen., 177 Wash.2d 467, 486–87, 300 P.3d 799 (2013) (Ameriquest II ). We review actions under the PRA and the injunction statute de novo. RCW 42.56.550(3)

; Spokane Police Guild, 112 Wash.2d at 35, 769 P.2d 283. “Where the record consists only of affidavits, memoranda of law, other documentary evidence, and where the trial court has not seen or heard testimony requiring it to assess the witnesses' credibility or competency, we ... stand in the same position as the trial court.” Dragonslayer, Inc. v. Wash. State Gambling Comm'n, 139 Wash.App. 433, 441–42, 161 P.3d 428 (2007) (citing Progressive Animal Welfare Soc'y v. Univ. of Wash., 125 Wash.2d 243, 252–53, 884 P.2d 592 (1994) (PAWS

II ) (plurality opinion)). Furthermore, whether RCW 4.24.550 is an “other statute” for purposes of the PRA is a question of law that this court reviews de novo. See

Henne v. City of Yakima, 182 Wash.2d 447, 453, 341 P.3d 284 (2015) (questions of statutory interpretation reviewed de novo).

The PRA and RCW 4.24.550

¶ 7 In 1972, the people enacted the PRA, formerly chapter 42.17 RCW, by initiative. Dawson v. Daly, 120 Wash.2d 782, 788, 845 P.2d 995 (1993)

. The public records portion was recodified at chapter 42.56 RCW. It is a “strongly worded mandate for broad disclosure of public records.” Hearst Corp. v. Hoppe, 90 Wash.2d 123, 127, 580 P.2d 246 (1978). The PRA's primary purpose is to foster governmental transparency and accountability by making public records available to Washington's citizens. See

City of Lakewood v. Koenig, 182 Wash.2d 87, 93, 343 P.3d 335 (2014). The text of the PRA directs that it be “liberally construed and its exemptions narrowly construed ... to assure that the public interest will be fully protected.” RCW 42.56.030. We therefore start from the presumption that a state agency has “an affirmative duty to disclose public records.” Spokane Police Guild, 112 Wash.2d at 36, 769 P.2d 283.

¶ 8 Despite the PRA's presumption of openness and transparency, the legislature has made certain public records exempt from production. Some of these exemptions are contained within the PRA itself. See, e.g., RCW 42.56.210

–.480

(listing specific exemptions). RCW 42.56.070(1)

addresses exemptions contained elsewhere. In relevant part, it states that each agency “shall make available for public inspection and copying all public records, unless the record falls within the specific exemptions of ... this chapter, or other statute which exempts or prohibits disclosure of specific information or records.” RCW 42.56.070(1). An “other statute” that exempts disclosure does not need to expressly address the PRA, but it must expressly prohibit or exempt the release of records. See, e.g.,

Ameriquest Mortg. Co. v. Office of Att'y Gen., 170 Wash.2d 418, 439–40, 241 P.3d 1245 (2010) (Ameriquest I ) (federal Gramm–Leach–Bliley Act, 15 U.S.C. §§ 6801 –6809, an “other statute” exempting covered information from PRA disclosure); Hangartner v. City of Seattle, 151 Wash.2d 439, 453, 90 P.3d 26 (2004) (attorney-client privilege is an “other statute” under what is now RCW 42.56.070(1) (formerly RCW 42.17.260 ) (1997)).

¶ 9 The “other statute” exemption “applies only to those exemptions explicitly identified in other statutes; its language does not allow a court ‘to imply exemptions but only allows specific exemptions to stand’.” PAWS II, 125 Wash.2d at 262, 884 P.2d 592

(quoting Brouillet v....