JOHN DOE A, а 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.
No. 90413-8
IN THE SUPREME COURT OF THE STATE OF WASHINGTON
APR 07 2016
En Banc
FACTS
Appellant Zink, a Washington resident, submitted three public records requests relating to sex offender registration information. The first request sought a copy оf 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.
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.
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 еmails, to or from employees of the WSP‘s Criminal Records Division, that relate to a source document or the database.
Id. at 628.
ANALYSIS
Standard of Review
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.
The PRA and RCW 4.24.550
In 1972, the people enacted the PRA, formerly chapter 42.17 RCW, by initiative. Dawson v. Daly, 120 Wn.2d 782, 788, 845 P.2d 995 (1993). The public records portion was recodified at
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.,
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 Wn.2d at 262 (quoting Brouillet v. Cowles Publ‘g Co., 114 Wn.2d 788, 800, 791 P.2d 526 (1990)). In PAWS II, we noted that the legislature made it very clear, following our holding in In re Rosier, 105 Wn.2d 606, 717 P.2d 1353 (1986), that it did not want this court creating exemptions where there were none. PAWS II, 125 Wn.2d at 258-59.
In Rosier, this court interpreted a portion of the PRA to imply a general personal privacy exemption. 105 Wn.2d at 611-14. The legislature responded swiftly by explicitly overruling Rosier and amending what is now
make sense to imagine the legislature believed judges would be better custodians of open-ended exemptions because they lack the self-interest of agencies. The legislature‘s response to our opinion in Rosier makes clear that it does not want judges any more than agencies to be wielding broad and mal[l]eable exemptions. The legislature did not intend to entrust to . . . judges the [power to imply] extremely broad and protean exemptions . . . .
125 Wn.2d at 259-60. Therefore, if the exemption is not found within the PRA itself, we will find an “other statute” exemption only when the legislature has made it explicitly clear that a specific record, or portions of it, is exempt or otherwise prohibited from production in response to a public records request. The primary issue here is whether
From its inception,
Subsection (3) sets forth guidelines an agency shall consider in determining the extent of what it chooses to disclose.
For offenders classified as risk level I, the agency shall share information with other appropriate law enforcement agencies and, if the offender is a student, the public or private school regulated under Title 28A RCW or chapter 72.40 RCW which the offender is attending, or planning to attend. The agency may disclose, upon request, relevant, necessary, and accurate information to any victim or witness to the offense and to any individual community member who lives near the residence where the offender resides, expects to reside, or is regularly found.2
Our review of Washington case law shows that courts consistently find a statute to be an “other statute” when the plain language of the statute makes it clear that a record, or portions thereof, is exempt from production. Recently, in Planned Parenthood of Great
In Wright v. State, the Court of Appeals found that the PRA did not apply to a request for juvenile justice records because
In Hangartner, this court held that
This court last addressed the “other statute” exemption in Fisher Broadcasting-Seattle TV LLC v. City of Seattle, 180 Wn.2d 515, 326 P.3d 688 (2014). There, we considered whether
In contrast, when a statute is not explicit, courts will not find an “other statute” exemption. In Belo Management Services, Inc. v. Click! Network, 184 Wn. App. 649, 653-54, 343 P.3d 370 (2014), five broadcasters sought to enjoin the disclosure of
Rather than being prohibitory, the language of
We also note that when courts have found an “other statute” exemption, they have also identified a legislative intent to protect a particular interest or value. See, e.g., Limstrom v. Ladenburg, 136 Wn.2d 595, 607, 963 P.2d 869 (1998) (“The general purpose of the exemptions to the Act‘s broad mandate of disclosure is to exempt from
Nothing in
The John Does fear harassment both from Zink and others. We offer no opinion about Zink‘s purpose, but if the legislature wanted to protect level I sex offenders from
The John Does also urge the court to imply an exemption based on the terms “publiс disclosure” and “confidential” within the statute.
The John Does argue that “public disclosure” refers to producing documents or information in response to a PRA request. By including this language, they argue, the legislature made
Similarly, the John Does urge this court to interpret “confidential” as a term of art under the PRA, which would allow the records to be exempt from a PRA request, yet still give effect to subsection (9).
Zink and the WSP argue that we should read “confidential” in the general sense. Under their reading, the plain language of the statute specifically disclaims the confidentiality of sex offender records, making them subject to disclosure under a PRA request. We agree with Zink and the WSP. Subsection (9) was part of the original bill in 1990 and remains unchanged. LAWS OF 1990, ch. 3, § 117(4). The only reference to the PRA in
The bill history of the recent amendments supports this reading. In the 2015 regular session, the legislature rejected an amendment that would have deleted subsection (9) in its entirety and replaced it with “[s]ex offender . . . registration information is exempt from public disclosure under chapter 42.56 RCW.” Compare S.B. 5154, 64th Leg., Reg. Sess., at 5 (Wash. 2015), with SUBSTITUTE S.B. 5154, 64th Leg., Reg. Sess., at
The John Does next argue that if
The John Does and amicus Washington Association of Criminal Defense Lawyers (WACDL) also argue that holding
To support their argument, the John Does and the WACDL interpret our holding to refer to disclosure of registration information to the public in response to a PRA request. However, that was not the issue addressed in Ward. The “disclosure” repeatedly referenced in Ward dealt with an agency‘s proactive dissemination of sex offender registration information under the scheme set forth in
Finally, we address the findings and recommendations of the Sex Offender Policy Board (SOPB). Recently, the legislature tasked the SOPB with making findings and recommendations regarding, among other things, the “[d]isclosure to the public of information compiled and submitted for the purposes of sex offender and kidnapping offender registries that is currently held by public agencies, including the relationship between
A)
RCW 4.24.550 be amended to include the following sentence:
Sex offender and kidnapping offender registration information is exempt from public disclosure underchapter 42.56 RCW .
B)RCW 42.56.240 be amended to include the following sentence:
The following investigative, law enforcement, and crime victim information is exempt from public inspection and copying under this chapter:
Information compiled and submitted for the purposes of sex offender and kidnapping offender registration pursuant toRCW 4.24.550 and9A.44.130 , or the statewide registered kidnapping and sex offender website pursuant toRCW 4.24.550 , regardless of whether the information is held by a law enforcement agency, the statewide unified sex offender notification and registration program underRCW 36.28A.040 , the central registry of sex offenders and kidnapping offenders underRCW 43.43.540 , or another public agency.
Resp‘ts John Does’ Notice of Suppl. Auth., Ex. A at 23. Had these recommendations been adopted, our decision on whether
Finally, the SOPB report includes policy arguments to exempt the blanket release of level I sex offender registration records. See id. at 19-22. However, policy decisions are best left to the legislature and do not absolve us of our responsibility to follow the PRA‘s “strongly worded mandate for broad disclosurе of public records.” Hearst Corp., 90 Wn.2d at 127.
The PRA, and our case law surrounding it, demands that an “other statute” exemption be explicit. Where the legislature has not made a PRA exemption in an “other
Because we find that these records are available, it is unnecessary to consider whether the trial court abused its discretion by allowing the plaintiffs to proceed in pseudonym. The issue is moot; Zink will receive the records—and the names of the parties—and even if this court were to hold that proceeding in pseudonym was in error, we would be unable to offer any further relief, as it has already been granted.6 It is also unnecessary for this court to consider whether the permanent injunction was overbroad because we reverse the injunction as ordered. Finally, we do not need to address whether
Penalties and Attorney Fees
Next, we address whether Zink is entitled to attorney fees, costs, and per diem penalties. We hold that she is not.
Zink argues that if
The plain language of the PRA governs this issue.
[a]ny person who prevails against an agency in any action in the courts seeking the right to inspect or copy any public record or the right to receive a response to a public record request within a reasonable amount of time shall be awarded all costs, including reasonable attorney fees, incurred in connection with such legal action. In addition, it shall be within the discretion of the court to award such person an amount not to exceed one hundred dollars for each day that he or she was denied the right to inspect or copy said public record.
(Emphasis added.) Although Zink prevailed in the sense that
The same is true here. The WASPC notified the John Does of its intent to disclose the records absent a court order. The WSP and WASPC advocated for the release of the records. And the records were withheld not because of agency action, but because of a court order enjoining their release. Just as the PRA in Confederated Tribes did not “authorize attorney fees in an action brought by a private party . . . to prevent disclosure of public records held by an agency where the agency has agreed to release the records but is prevented from doing so by court order,” id., so too does
CONCLUSION
An “other statute” exemption must be explicit; this court may not imply one. Because the legislature did not make it explicit, we hold that
The trial court is reversed, and the request for fees and penalties is denied.
Madsen, C.J.
WE CONCUR:
Johnson, J.
Owens, J.
Fairhurst, J.
Stephens, J.
González, J.
Yu, J.
THE TRIAL COURT CORRECTLY CONCLUDED THAT THE CPA (RCW 4.24.550 ) BARS THE BLANKET DISCLOSURE OF LEVEL I SEX OFFENDER REGISTRY INFORMATION AND ENTERED A PROPERLY TAILORED INJUNCTION
When reviewing a trial court order enjoining disclosure under the PRA, “‘[w]e start with the proposition that the act establishes an affirmative duty to disclose public records unless the records fall within specific statutory exemptions.‘” Progressive Animal Welfare Soc‘y v. Univ. of Wash., 125 Wn.2d 243, 258, 884 P.2d 592 (1994) (PAWS) (plurality opinion) (alteration in original) (quoting Spokane Police Guild v. Wash. State Liquor Control Bd., 112 Wn.2d 30, 36, 769 P.2d 283 (1989)). The party resisting disclosure bears the burden of proving that an exemption applies. Ameriquest Mortg. Co. v. Office of Att‘y Gen., 177 Wn.2d 467, 486-87, 300 P.3d 799 (2013) (Ameriquest II). When (as in this case) the party resisting disclosure is not a state agency, that party must also prove two factual prerequisites to an injunction: “(1) that the record in question specifically pertains to that party [and (2)] that the disclosure would not be in the public interest and would substantially and irreparably hаrm that party or a vital government function.” Id. at 487 (citing
A. The CPA constitutes an “other statute” within the meaning of
As the majority acknowledges, the CPA codifies various requirements related to agencies’ maintenance and publication of information about registered sex and kidnapping offenders,
I agree with the majority on several basic points related to the CPA‘s history and purpose. First, I agree that the CPA,
But I disagree with the majority‘s conclusion that an individual may completely circumvent these disclosure limits just by filing a PRA request. The majority reaches this conclusion only by adopting the appellants’ strained interpretation of the CPA: that it governs only “proactive” community notification, as opposed to reactive disclosures in response to citizen requests.3 In adopting this interpretation, the majority ignores the CPA‘s plain language, which governs both agencies’ “proactive[]” disclosures (e.g., the publication of offender information on the Washington Association of Sheriffs and Police Chiefs (WASPC) website,
1. The majority‘s new rule frustrates the legislative intent expressed in the CPA‘s plain language; it is therefore contrary to our precedent interpreting the PRA‘s “other statute” exemption,
RCW 42.56.070(1)
When faced with a question of statutory interpretation, our duty is to identify and give effect to the legislature‘s intent, beginning with the statute‘s plain language4 and avoiding, where possible, an interpretation that renders any portion of the statute meaningless or superfluous.5 These basic rules of statutory interpretation compel the conclusion that, contrary to the majority‘s holding, the CPA governs both “proactive[]” and reactive disclosures of registry information. Majority at 14.
When Zink submitted the PRA requests at issue in this case, the CPA provided that an agency “may disclose, upon request, relevant, necessary, and accurate information [about a level I offender] to any victim or witness to the offense and to any individual community member who lives near the residence where the offender resides, expects to reside, or is regularly found.” Former
The trial court was correct. The CPA—particularly subsection (3)(a)—contains both mandatory and permissive language: it tells agencies what registry information they “shall” share with specific institutions (for level I offenders, “appropriate law enforcement agencies” and the offender‘s school) and what registry information they “may” disclose in response to citizen requests.
Under the majority‘s holding, any individual may now completely circumvent those limits by issuing a blanket PRA request for all level I offender registry information. This is because, under the new rule the majority adopts, no statute can bе an “other statute,” for purposes of the PRA unless it prohibits disclosure expressly and absolutely. Majority at 10. This is a significant departure from precedent; we have never before interpreted the PRA to nullify another statute in this manner.
It is true that Washington courts have held statutes with express nondisclosure or confidentiality provisions to be “‘other statute[s]‘” under the PRA. Majority at 10-12 (quoting Planned Parenthood of Great Nw. v. Bloedow, 187 Wn. App. 606, 623, 350 P.3d 660 (2015); Wright v. State, 176 Wn. App. 585, 597, 309 P.3d 662 (2013); Deer v. Dep‘t of Soc. & Health Servs., 122 Wn. App. 84, 92, 93 P.3d 195 (2004); Ameriquest Mortg. Co. v. Office of Att‘y Gen., 170 Wn.2d 418, 424, 241 P.3d 1245 (2010) (Ameriquest I)).
But our courts have also reached this conclusion in the absence of such a provision. In Hangartner v. City of Seattle, 151 Wn.2d 439, 452-53, 90 P.3d 26 (2004), for example, this court held that the attorney-client privilege codified at
Similarly, in PAWS, we held that the state Uniform Trade Secrets Act (UTSA),
Neither the statute at issue in Hangartner nor the statute at issue in PAWS would have satisfied the test the majority adopts today. Neither statute contained any express exemption or confidentiality provision. Nevertheless, this court found each statute was an “other statute” because a contrary conclusion would have frustrated our legislature‘s intent to protect certain information from unfettered disclosure. See Hangartner, 151 Wn.2d at 453 (“[w]hen the legislature amended the PDA to include the ‘other statute’ exemption, it could have easily trumped the attorney-client privilege by excluding it from consideration as an ‘other statutе‘” (citing LAWS OF 1987, ch. 403, § 3)); PAWS, 125 Wn.2d at 262-63 (concluding that the UTSA is an “other statute” in part because our legislature has declared the protection of trade secrets a matter of public policy (quoting LAWS OF 1994, ch. 42, at 130)).
The majority‘s new rule also frustrates the legislative intent expressed in the CPA. This is most evident in the majority‘s discussion of the CPA‘s nonconfidentiality provision (
Having held that a statute must expressly and absolutely prohibit disclosure in order to constitute an “other statute” under
Despite its evisceration of the CPA, the majority also concludes that even after today‘s holding,
2. The legislative history supports the conclusion that the CPA is an “other statute” under
RCW 42.56.070(1)
Thus, the CPA‘s plain language alone makes it an “оther statute” under
When the legislature first enacted the CPA in 1990, it included a statement of findings endorsing the “[r]elease of information about sexual predators to public agencies and under limited circumstances, the general public.” LAWS OF 1990, ch. 3, § 116 (emphasis added). Thus, the law was originally envisioned as authorizing limited, not blanket disclosures. That fundamental aspect of the CPA has never changed: the bill report accompanying the amendment most relevant to this case—the 1997 amendment introducing risk level classification into the statutory scheme—describes that amendment as identifying “[t]he nature and scope of permissible
Instead of addressing this legislative history, the majority focusses on one failed 2015 amendment, which would have replaced
There are three problems with this conclusion.
First, the proposed amendment refers to all sex and kidnapping offender registry information, not just the lowest level offender information—it would even exempt information subject to mandatory publication on the Washington Association of Sheriffs and Police Chiefs (WASPC) website. See majority at 9 (describing website publication requirement in
Second, with respect to registry-compliant levеl I offenders in particular, the SOPB report actually shows that the legislature may yet expressly clarify its intent to exempt registry information from disclosure under the PRA. As a practical matter,
B. The trial court‘s ruling on the factual prerequisites to an injunction was correct and certainly supported by substantial evidence
As noted above, in order to obtain an injunction barring the blanket release of level I offender records in response to Zink‘s PRA request, the John Does had to prove two factual prerequisites: (1) that the records at issue specifically pertain to them and (2) that blanket disclosure “would not be in the public interest and would
The trial court also found that the second factual prerequisite was satisfied: blanket disclosure would not be in the public interest and would substantially and irreparably harm the John Does. Specifically, the trial court found that the evidence submitted—declarations by individual class members, class members’ parents, and several experts—“establishes that sex offenders who are identified by public disclosure face an increased risk of physical violence, stigmatization, mental and emotional distress, and loss of economic opportunity,” and that “‘[b]lanket’ or generalized disclosure [of information on level I offenders] . . . undermines the carefully crafted legislative scheme” requiring “targeted and limited disclosure of sex offender registration information.” CP at 564-65 (Finding of Fact 14-15).
There is overwhelming evidence in the record supporting this conclusion. The trial record contains numerous declarations by members of the plaintiff class that
The trial court correctly concluded that the John Does satisfied both the legal and factual prerequisites to an injunction barring blanket PRA disclosure of level I sex offender registry records.
The WSP argues that even if the trial court‘s declaratory judgment was correct (and
The court‘s order is divided into thrеe paragraphs, as follows:
1) Declaratory judgment is entered providing that level I sex offender registration records are exempt from disclosure under
RCW 42.56.070 pursuant toRCW 4.24.550 .RCW 4.24.550 provides the exclusive mechanism for public disclosure of sex offender registration records.2) The WSP and WASPC shall not make a “blanket” or generalized production of sex offender records of Class members in response to Ms. Zink‘s requests for public records (whether pending or made during the duration of this litigation (including any appeals)).
3) 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.
CP at 568-69.
The WSP argues that the court exceeded its authority in the third paragraph and that the court‘s order in that paragraph is not consistent with court rules governing injunctions. But the third paragraph of the order is not an injunction; it is permissive and explanatory. It describes the method by which WSP and WASPC may produce documents pertaining to the class in response to any PRA request—including Zink‘s.
The trial court‘s ruling is not overbroad.
CONCLUSION
I agree completely with the majority‘s assertion that the legislature, rather than this court, determines what records are exempt from PRA disclosure. Majority at 7-8. We have the same goal in a PRA case as in any case involving a question of statutory interpretation: to set aside our own policy views and identify the
Notes
In the first action (against Zink and the WSP), the trial court certified a class defined as “[a]ll individuals who are named in the December 6, 2013 extract from the [WSP‘s] Sex and Kidnapping Offender Registry Database, classified at risk level I, and not designated in the status of ‘fail to verify address’ or ‘fail to register upon release.‘” Id. at 1608. In the second action (against the WASPC), the trial court certified a class defined as “[a]ll individuals with last names beginning with the letters ‘A’ or ‘B’ who are named in the March 25, 2014 extract from the [WASPC] database, classified at risk level I, and not designated in the status of ‘fail to verify address’ or ‘fail to register upon release.‘” Id. at 1619. It specifically noted in each order that “[t]he Defendant‘s ability to easily identify members of the Class would be enhanced if the Class were defined with reference to a particular date relative to the request at issue.” Id. at 1607-08, 1619. On March 5, 2014, the trial court consolidated those lawsuits. Id. at 1591-93 (Ex. G).
Exemption and Prohibition Statutes Not Listed in Chapter 42.56 RCW, http://www.wsp.wa.gov/publications/reports/exemption_statutes_not_listed_in_RCW_42.56.pdf.