This opinion was filed foiriisopindl
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IN CLERKS OFFICE _on aa.2£I^
WFRBE COURT.STATE OF VWSHiNGTON
i DATE 2 2^^
SUSAN L. CARLSON
CHiSFJusnce SUPREME COURT CLERK
IN THE SUPREME COURT OF THE STATE OF WASHINGTON
JOHN DOE G,JOHN DOB I, and JOHN DOE J,
as individuals and on behalf of others similarly No. 94203-0
situated,
Respondents,
En Banc
V.
DEPARTMENT OF CORRECTIONS,STATE
OF WASHINGTON,and DONNA ZINK,a
married woman.
Filed FEB 2 2
Petitioners.
MADSEN,J.—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 ROW,because they contain "health care
information," and (2) whether pseudonymous litigation was proper in this action.
No. 94203-0
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.^ 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(OR) 15. Accordingly, we reverse the Court
of Appeals.
FACTS
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.
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 oftwo former level I sex
offenders who have been relieved ofthe duty to register, and one current and compUant
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
^ This record does not contain actual SSOSA documents. There may be situations in which a
SSOSA evaluation is accompanied by documents that may trigger PRA protection.
No. 94203-0
offenders. They brought the action in pseudonym, naming the DOC as defendant and
Zink as requester.
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.
On October 30, 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.
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 "[bjecause
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)."^ John Doe G v.
^ This court limited its scope of review to specifically address whether unredacted SSOSA
evaluations are exempt from disclosure because they contain "health care information."
The parties did not argue the applicability of RCW 70.02.250 in their briefing, nor did the
Court of Appeals address it. However,the issue was raised at oral argument. Specifically, this
provision concems disclosure of"information and records related to mental health services,"
which the Uniform Health Care Information Act, chapter 70.02 RCW,defines as
a type ofhealth care information that relates to all information and records
compiled, obtained, or maintained in the course of providing services by a mental
No. 94203-0
Dep't ofCorr., 197 Wn. App. 609,623, 391 P.3d 496, review granted, 188 Wn.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. The court also found that pursuant to the
experience and logic test, the use of pseudonyms does not implicate article 1, section 10
ofthe Washington Constitution. Id. at 627-28. The court explained that experience and
logic show that "the public's interest in the plaintiffs' names is minimal and use ofthose
names would chill their ability to seek relief." Id. at 628.
ANALYSIS
Standard of Review
We review all agency actions taken or challenged under the PRA de novo. RCW
42.56.550(3). Pursuant to the PRA,"[cjourts 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 oflaw, and other
documentary evidence," we stand in the same position as the trial court. Progressive
health service agency or mental health professional to persons who are receiving
or have received services for mental illness.
RCW 70.02.010(21)(emphasis added).
In other words, RCW 70.02.250 applies only to "health care information." Because we
hold that SSOSA evaluations do not contain "health care information," it follows that they do not
contain "[ijnformation and records related to mental health services." Id.
No. 94203-0
Animal Welfare Soc'yv. Univ. of Wash., 125 Wn.2d 243, 252, 884 P.2d 592(1994)
(plurality opinion){PAWSII).
A public record is virtually any record related to the government's eonduet or
performance. Nissen v. Pierce County, 183 Wn.2d 863, 874, 357 P.3d 45 (2015); RCW
42.56.010(3). Additionally, the PRA's disclosure provisions must be eonstrued liberally
and exemptions narrowly. PAWSll, 125 Wn.2d at 251 (eiting RCW 42.17.010(11),.251,
.920). To that end,"we start with the proposition that the aet establishes an affirmative
duty to diselose public records unless the records fall within specific statutory
exemptions." Spokane Police Guild v. Liquor Control Bd., 112 Wn.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 ofAtt'y Gen.,
177 Wn.2d 467, 486-87, 300 P.3d 799(2013). The legislature enaeted the PRA to ensure
"broad disclosure of publie records." Hearst Corp. v. Hoppe,90 Wn.2d 123, 127, 580
P.2d 246(1978).
SSQSA Overview
The Washington Legislature enacted the SSOSA as part ofthe Sentencing Reform
Aet of 1981, chapter 9.94A RCW. State v. Canfield, 154 Wn.2d 698, 701 n.l, 116 P.3d
391 (2005)(eiting RCW 9.94A.670(2)). A SSOSA is a sentencing alternative that allows
a trial eourt to suspend a first time sex offender's felony sentence if that offender meets
eertain statutory eriteria. Id. Among other things, the court must impose a term of
No. 94203-0
community custody and sex offender treatment as a condition to granting a SSOSA.
RCW 9.94A.670(5)(b)-(c).
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(l)(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 fi-om providing subsequent treatment to the offender, except in
limited circumstances. RCW 9.94A.670(13).
Health Care Information
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
No. 94203-0
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,"'[hjealth 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.
"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. PA WSII, 125 Wn.2d at 251. Exempting information that is
incidentally related to health care would be inconsistent with the PRA's broad disclosure
policy.
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 ofjail time. See State v. Young, 125 Wn.2d 688,693, 888 P.2d 142(1995)("The
Legislature developed the special sentencing provision for first-time sex offenders in an
attempt to prevent future crimes and protect society."). More specifically, a SSOSA
evaluation is a forensic examination, not a medical one.
No. 94203-0
In State v. Sullivan, 60 Wn.2d 214, 223-24, 373 P.2d 474(1962), we drew a
distinction between forensic and medical examinations in the doctor-patient privilege
context. We held that
a forensic examination by a physician is not within the statutory testimonial
prohibitions of the doctor-patient privilege. The reasons are: the
relationship of doctor and patient does not exist; the examination is not for
the purpose oftreatment, but for the publication of results. , . . "[T]here is
no privilege when the examination is made by the physicianfor the express
purpose ofpublishing the results—such, for example, as testifying in an
action for personal injuries."
Id.(emphasis added)(citations omitted)(quoting Strafford v. N. Pac. Ry. Co., 95 Wash.
450, 453, 164 P. 71 (1917)). Although the facts of the current case do not concern the
doctor-patient privilege, Sullivan stands for the proposition that forensic examinations are
not subject to the same privacies and privileges as medical evaluations.
SSOSA evaluations are made for the purpose of publishing the results to the court.
When a SSOSA is requested, the court orders a SSOSA evaluation and uses the
evaluation to assess whether the offender should be granted an alternative sentence.
ROW 9.94A.670(3)-(4). Unlike typical health care evaluations, SSOSA evaluations are
made with the understanding that they will be shared with others. The offender knows
that in order to avail himself of the benefit of an alternative sentence, he must undergo
this evaluation for court review.
A SSOSA evaluation, unlike an ordinary health examination, focuses on the
patient's health. In a SSOSA evaluation, the court must decide whether the offender is
amenable to treatment and whether a SOSSA will serve public safety interests and the
No. 94203-0
penological goal of rehabilitation. The court uses a SSOSA evaluation to consider,
among other things, community impact, whether the alternative sentence is too lenient in
light ofthe offense, and risk to the victim. RCW 9.94A.670(4). In other words, a
medical evaluation assesses treatment options in the best interest ofthe patient, while a
SSOSA evaluation assesses treatment options in the best interest ofthe court, the
community, the victim, and the offender.
It is also noteworthy that the 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). This indicates the legislature's
intent to distinguish the forensic stage—^the SSOSA evaluation—from the potentially
medical stage—^the SSOSA alternative itself.
The John Does dispute that a SSOSA evaluation is a forensic examination, arguing
that the purpose ofthe evaluation is to assess the offender's "amenability to treatment,"
which, according to the John Does, actually means "to diagnose whether the offender's
mental condition is amenable to health care." Suppl. Br. of Resp'ts at 5. In the John
Does' view, SSOSA evaluations contain "health care information" because assessing
"amenability to treatment" constitutes a medical determination. This is so, they argue,
because the evaluator's "'diagnostic impressions'" and "'assessment of relative risk
factors'" must be included in the SSOSA evaluation. Id. (quoting WAG 246-930-
320(2)(f)(ii)-(iii)). The John Does also add that a SSOSA evaluation must include a
"proposed treatment plan." RCW 9.94A.670(3)(b).
No. 94203-0
We are unpersuaded by this argument. Assessing whether an offender is
"amenable to treatment," as required by the SSOSA statute, is a legal determination, not a
medical one. In State v. McNallie, we held that
[o]ur purpose in requiring objective evidence regarding amenability
to treatment is not to provide defendants with unlimited bites at the
treatment apple. Courts faced with a prior history of failed attempts at
therapy are free to consider this history in deciding on the defendant's
current prognosis for rehabilitation. When that prognosis is poor, based on
the failure of previous treatment attempts as shown by offenses occurring
during treatment or soon thereafter, exceptionally long sentences are
justified in order to protect the public from a defendant who is likely to
reoffend. Nevertheless, in cases where there is no such treatment history,
or there has been a very long period of offense-free behavior following
therapy, an exceptional sentence cannot be sustained without "the opinion
of a mental health professional that the defendant would likely not be
amenable to treatment."
123 Wn.2d 585, 591-92, 870 P.2d 295 (1994)(footnote and citations omitted)(quoting
State V. Pryor, 115 Wn.2d 445, 455, 799 P.2d 244 (1990)). Amenability to treatment is
not a medical determination but, rather, a threshold inquiry that the court must make
before deciding to grant an alternative sentence. The John Does' argument conflates
SSOSA evaluations with SSOSA sentences—^the purpose of a SSOSA evaluation is the
primary issue in this case, not the purpose of a SSOSA sentence. While the purpose of a
SSOSA sentence is to treat sex offenders who are amenable to treatment, the purpose of a
SSOSA evaluation is to determine which sex offenders are eligible for a SSOSA—i.e.,
amenable to treatment.
In deciding whether an offender is amenable to treatment, the sentencing court
does not limit itself to medical inquiries. Rather, an offender
10
No. 94203-0
would not be "amenable to treatment" if the record establishes that(1)no
treatment programs are available;(2)the defendant is ineligible for
treatment at all available facilities due, for instance, to prior unsuccessful
treatment;(3)the defendant refuses to cooperate with necessary evaluations
to determine the usefulness of treatment; or(4)no facility is sufficiently
secure to house the defendant during treatment.
State V. Miller, 60 Wn. App. 914, 919, 808 P.2d 186 (1991). A sentencing court is
permitted to take any of these factors into account before deciding whether to grant a
SSOSA to a specific offender. If the offender is unamenable to treatment, the court may
decline to grant a SSOSA sentence, and the offender may never receive medical
treatment as the result of a SSOSA evaluation. See ROW 9.94A.670.
Finally, while a SSOSA evaluation requires a proposed treatment plan, that alone
is not sufficient to render it "health care information." The treatment plan required by the
SSOSA statute is not a traditional medical treatment plan. While the treatment plan must
include some proposals regarding medical treatment, it must also include
"[rjecommendations for specific behavioral prohibitions, requirements and restrictions on
living conditions, lifestyle requirements, and monitoring by family members and others
that are necessary to the treatment process and community safety." WAC 246-930-
320(2)(g)(iii).
We conclude that SSOSA evaluations are forensic examinations made for the
purpose of aiding a court in sentencing a sex offender. Accordingly, we hold that
11
No. 94203-0
SSOSA evaluations are not exempt from PRA disclosure, as they do not contain "health
care information," nor do they fall within any other specific exemption.^
Pseudonyms
The second issue is this case is whether the John Does should have been allowed
to proceed in pseudonym. Zink argues that the trial court failed to follow GR 15 and the
five-step framework required by Seattle Times Co. v. Ishikawa, 97 Wn.2d 30, 37-39, 640
P.2d 716(1982), before allowing the John Does to proceed in pseudonym and, thus, erred
in granting the John Does' motion.
In affirming the trial court, the Court of Appeals relied on federal appellate court
decisions to create a new test for assessing the appropriateness of pseudonymity. The
Court of Appeals explained:
Although federal law lacks a provision like Washington's article I, section
10, federal courts recognize parallel rights under the First Amendment. We
therefore look to those courts for guidance. The Eleventh Circuit has
explained that pseudonyms are appropriate where "the injury litigated
against would be incurred as a result of the disclosure of the plaintiffs
identity." To this end, federal courts have adopted balancing tests: the
Eleventh, Tenth, and Fifth Circuits allow a plaintiff to proceed
pseudonymously where "the plaintiff has a substantial privacy right which
outweighs the customary and constitutionally-embedded presumption of
openness in judicial proceedings." The Ninth and Second Circuits ask
whether "the party's need for anonymity outweighs prejudice to the
opposing party and the public's interest in knowing the party's identity."
John Doe G, 197 Wn. App. at 627(footnotes and internal quotation marks omitted)
(quoting BUI W. Doe v. Frank, 951 F.2d 320, 324(11th Cir. 1992); Jane Roe II v. Aware
^ As noted earlier, our holding is based on our understanding ofthe statutory purpose and
"ingredients" of a SSOSA evaluation, not on an actual evaluation.
12
No. 94203-0
Woman Ctr.for Choice, Inc., 253 F.3d 678,685 (11th Cir. 2001); Does I thru XXIII v.
Advanced Textile Corp., 214 F.3d 1058, 1068 (9th Cir. 2000)). We have never used this
analysis to determine whether pseudonymous litigation is appropriate. Rather, we rely on
GR 15 and Ishikawa. Under OR 15, a court record may be sealed if a court "'enters
written findings that the specific sealing or redaction is justified by identified compelling
privacy or safety concerns that outweigh the public interest in access to the court
record.'" Hundtofte v. Encarnacion, 181 Wn.2d 1, 7, 330 P.3d 168(2014)(plurality
opinion)(quoting GR 15(c)(2)). Moreover,Ishikawa requires the court to(1)identify the
need to seal court records,(2) allow anyone present in the courtroom an opportunity to
object,(3) determine whether the requested method is the least restrictive means of
protecting the interests threatened,(4) weigh the competing interests and consider
alternative methods, and (5)issue an order no broader than necessary. 97 Wn.2d at 37-
39.
"Whether an Ishikawa analysis is necessary depends on whether article I, section
10 applies." State v. S.J.C., 183 Wn.2d 408, 412, 352 P.3d 749(2015). Article I, section
10 of the constitution requires that "[jjustice in all cases shall be administered openly,
and without unnecessary delay." Wash. CONST, art. I, § 10. Moreover,
"[wjhether article I, section 10 applies depends on application ofthe experience and logic
test." S.J.C., 183 Wn.2dat412.
To determine whether article I, section 10 is implicated, we must examine whether
experience and logic support the John Does' desire to proceed in pseudonym. The
13
No. 94203-0
experience prong examines '"whether the place and process have historically been open
to the press and general public.'" Id. at 417(internal quotation marks omitted)(quoting
In reDet. ofMorgan, 180 Wn.2d 312, 325, 330 P.3d 774(2014)). The logic prong
examines "'whether public access plays a significant positive role in the functioning of
the particular process in question.'" Id. at 430 (internal quotation marks omitted)
(quoting Morgfl/7, 180 Wn.2d at 325).
Fhst, under the experience prong,the names of people convicted of criminal
offenses, including sex offenders, have historically been open to the public. Indeed, the
names of all convicted felons have historically been open to the public because
Washington requires that "[c]onviction records ... be disseminated without restriction."
RCW 10.97.050.
While Washington courts have allowed pseudonymous litigation, in some
circumstances this court has still required a showing that pseudonymity was necessary.
See Ishikawa, 97 Wn.2d at 37("If closure and/or sealing is sought to further any right or
interest besides the defendant's right to a fair trial, a 'serious and imminent threat to some
other important interest' must be shown."). None ofthe cases relied on by the Court of
Appeals allowing parties to proceed in pseudonym involved parties whose names and
association to their respective crimes were aheady public record.'^ Unlike convicted sex
John Doe v. Grp. Health Coop. ofPuget Sound, Inc., 85 Wn. App. 213, 932 P.2d
178(1997)(employee brought UHCIA and invasion of privacy claims over health
care provider's disclosure ofname and consumer numbering in training exercise
on processing mental health claims); Jane Doe v. Boeing Co.,64 Wn. App. 235,
823 P.2d 1159(1992)(transgender employee sued employer for disability
discrimination), rev'd, 121 Wn.2d 8, 846 P.2d 531 (1993); John Doe v. Spokane
14
No. 94203-0
offenders, parties who have not been convieted of any crime may have a legitimate
privacy interest because there is no public record associating them with the subject of
their litigation. Moreover, by participating in this case, the John Does are not subject to
any disclosures that should otherwise be exempt. All that is revealed by the caption and
the facts of the case are their names and that they have been given a SSOSA—both of
which are public record. The specific details of the John Does' SSOSA evaluations,
which we hold are subject to disclosure, are not even discussed in this ease.
Logic also suggests that the John Does do not have a legitimate privacy interest to
protect in this case. Because the SSOSA is a sentencing alternative, the public '"plays a
significant positive role in the functioning of the particular process in question.'" S.J.C.,
183 Wn.2d at 430 (internal quotation marks omitted)(quoting Morgan, 180 Wn.2d at
325). For example, open courts encourage accountability by the court and the parties
before them. See Dreiling v. Jain, 151 Wn.2d 900, 903, 93 P.3d 861 (2004)("Justice
must be conducted openly to foster the public's understanding and trust in our judicial
system and to give judges the cheek of public scrutiny."). Here, the public's involvement
plays a significant role. The public must be able to scrutinize the sentences given to
& Inland Empire Blood Bank, 55 Wn. App. 106, 780 P.2d 853(1989)(plaintiffs
with AIDS (acquired immune deficiency syndrome) brought class action suit
against producers and distributors of blood products); Jane Doe v. Fife Mun.
Court, 74 Wn. App. 444, 874 P.2d 182(1994)(class of plaintiffs [charged with]
alcohol-related offenses sought to reeover court costs); John Doe v. Dep't of
Transp., 85 Wn. App. 143, 931 P.2d 196(1997)(sexual harassment suit by ferry
worker); Jane Doe v. Corp. ofPresident ofChurch ofJesus Christ ofLatter-Day
Saints, 141 Wn. App. 407, 167 P.3d 1193 (2007)(plaintiffs sued stepfather and
church over alleged sexual abuse by stepfather).
John Doe G, 197 Wn. App. at 625 n.56.
15
No. 94203-0
offenders to ensure the court is following the sentencing statutes, is not overly deferential
in granting SSOSA sentences, or is denying SSOSA sentences where warranted. We
hold that names in pleadings are subject to article I, section 10 and redaction must meet
the Ishikawa factors.
In State v. Bone-Club, 128 Wn.2d 254,906 P.2d 325 (1995), this court held
that a public trial closure motion triggered the court's duty to assess the five
factors set forth in Ishikawa.^ Additionally, the court held that without
a trial court record showing any consideration of Defendant's public trial
right, we cannot determine whether closure was warranted. We hold the
trial court's failure to follow the five-step closure test enunciated in this
court's section 10 cases violated Defendant's right to a public trial
under section 22.
Id. at 261. Consequently, prejudice is presumed when the constitutional right to open
courts is violated. Id. at 261-62. Here, the trial court granted the John Does' motion to
proceed in pseudonym without the required consideration on the record.^
Ishikawa requires that the court allow anyone present in the courtroom an
opportunity to object. 97 Wn.2d at 38; see Bone-Club, 128 Wn.2d at 261 (where
"summary closure thus deprived Defendant of a meaningful opportunity to object").
Moreover, the Ishikawa factors "should be articulated in [the court's] findings and
^ Although Bone-Club discussed proper procedures for courtroom closure under article I, section
22 ofthe Washington Constitution, the court held that the same standards apply to both section
22 and section 10. 128 Wn.2d at 259.
^ While the court did not consider the pseudonym issue on the record, it claimed that it
considered the Bone-Club and Ishikawa factors in its order.® Report ofProceedings (Oct. 3,
2014) at 22("[I]n my order, I did indicate some findings that balanced the public interest in
knowing their names against the Plaintiffs' interest in privacy. And so the Court has conducted
that balance and the order reflects that.").
16
No. 94203-0
conclusions, which should be as specific as possible rather than conclusory."Ishikawa,
97 Wn. 2d. at 38. Here, the court's order was conclusory—simply finding that Zink
would not be prejudiced if the John Does were allowed to proceed in pseudonym and that
the John Does' real names have little bearing on the public's interest in this case. CP at
327.
Because the trial court did not justify its actions under GR 15 and Ishikawa,
we reverse its order permitting pseudonymity.
CONCLUSION
We reverse the Court of Appeals and hold that SSOSA evaluations are not exempt
under the PRA because they do not contain "health care information." We further hold
that names in captions implicate article I, section 10, and that the trial court erred in
granting the John Does' motion to proceed in pseudonym because the trial court failed to
apply GR 15 and the Ishikawa factors.
17
No. 94203-0
rJ-
WE CONCUR:
' C.
18
John Does v. Dep't ofCorrections, et al.
No. 94203-0
Gonzalez, J.(concurring)—I agree with the majority's resolution ofthe
questions before us. I write separately simply to explain why Justice Wiggins's
dissenting view that the plaintiffs may proceed with pseudonyms is in direct
conflict with Hundtofte v. Encarnacion, 181 Wn.2d 1, 330 P.3d 168(2014)
(plurality opinion). In that case, defendants of a dismissed unlawful detainer
action sought to have their misleading court record redacted because it prevented
them from obtaining housing and they reasonably feared homelessness. Id. at 21
(Gonzalez, J., dissenting).
A majority ofthe court(including Justice Wiggins) held that removing
barriers to finding rental housing was not a sufficiently compelling reason to
justify obscuring full names from a court record. Id. at 9(lead opinion of Owens,
J.), 17(Madsen, C.J., concurring)("The trial court's ruling is contrary to the plain
meaning of GR 15 because it allows a change to court records under a theory of
redaction that is not permitted even under the more restrictive sealing provisions of
John Does v. Dep't ofCorrections, et al. No. 94203-0(Gonzalez, J., concurring)
GR 15."). The Encarnacion majority made its decision, despite the trial court's
factual conclusions and consideration ofthe Ishikawa^ factors. See, e.g., id. at 5
("The court found that [being named in unlawful detainers] posed a serious and
imminent threat to Encarnacion and Farias' compelling interest in obtaining future
rental housing.").
I made my disagreement with the result in Encarnacion clear. See id. at 18
(Gonzalez, J,, dissenting). Given the fact that Encarnacion is now the rule, the
dissent should reconsider its position that the sex offenders' privacy interest
outweighs the public's interest in knowing their names. The dissent cannot have it
both ways. Unless a party is able to show a serious and imminent threat to its
privacy interest, that privacy interest does not outweigh the public's interest in the
open administration ofjustice. Id. at 10 (lead opinion).
The majority's view is consistent with Encarnacion. Majority at 12. Here,
the dissent cites the trial court's written findings, the plaintiffs' legitimate
expectation of privacy, and the fact that full names are unnecessary to scrutinize
the sentences given to the plaintiffs. But the dissent cannot show that the case for
pseudonyms in John Does is more compelling than the case for redaction in
Encarnacion, especially since the plaintiffs' convictions are matters of public
record. I therefore concur.
Seattle Times Co. v. Ishikawa, 97 Wn.2d 30, 37-39, 640 P.2d 716(1982).
John Does v. Dep't ofCorrections, et a/., No. 94203-0 (Gonzalez, J., concurring)
John Does v. Dep't of Corrections, etal., No. 94203-0
(Wiggins, J., dissenting)
No. 94203-0
WIGGINS, J. (dissenting)—Special sex offender sentencing alternative
(SSOSA)evaluations contain "health care information" and that information is exempt
from disclosure under the Public Records Act(PRA), chapter 42.56 RCW. In addition,
the trial court did not err by allowing John Does G, I, and J (John Does)to proceed in
pseudonym. For these reasons, I cannot join the majority's opinion and respectfully
dissent.
The PRA exempts health care information from disclosure
"The primary purpose of the PRA is to provide broad access to public records to
ensure government accountability." City of Lakewood v. Koenig, 182 Wn.2d 87, 93, 343
P.3d 335(2014). An agency must disclose responsive public records "unless the record
falls within the specific exemptions of [the PRA] . . . or other statute." RCW
42.56.070(1). "Consistent with its purpose of disclosure, the PRA directs that its
exemptions must be narrowly construed." Koenig, 182 Wn.2d at 94; see also RCW
42.56.030.
Relevant here, the PRA exempts "health care information" under chapter 70.02
RCW from disclosure. RCW 42.56.360(2) ("Chapter 70.02 RCW applies to public
inspection and copying of health care information of patients."). Thus, any health care
John Does v. Dep't of Corrections, et a!., No. 94203-0
(Wiggins, J., dissenting)
information that is not available under chapter 70.02 RCW is not subject to disclosure
under the PRA.
Chapter 70.02 RCW, commonly referred to as the Uniform Health Care
Information Act (UHCIA), governs the release of health care information in various
circumstances. At the time of the statute's passage, the legislature made several
findings about the importance of protecting the privacy of health care information:
The legislature finds that:
(1) Health care information is personal and sensitive information
that if improperly used or released may do significant harm to a patient's
interests in privacy, health care, or other interests.
(3) In order to retain the full trust and confidence of patients, health
care providers have an interest in assuring that health care information is
not improperly disclosed and in having clear and certain rules for the
disclosure of health care information.
(4) Persons other than health care providers obtain, use, and
disclose health record information in many different contexts and for many
different purposes. It 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. Thus, unlike the PRA, the UHCIA carries a general presumption of
nondisclosure without a patient's written authorization. See, e.g., RCW 70.02.020(1)
("Except as authorized elsewhere in this chapter, 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.").
"Health care information" is "any information, whether oral or recorded in any
form or medium, that identifies or can readily be associated with the identity of a patient
John Does v. Dep't of Corrections, eta!., No. 94203-0
(Wiggins, J., dissenting)
and directly relates to the patient's health care." RCW 70.02.010(16). "Health care" is
"any care, service, or procedure provided by a health care provider: (a) To diagnose,
treat, or maintain a patient's physical or mental condition; or (b) That affects the
structure or any function of the human body." RCW 70.02.010(14).
A. SSOSA evaluations contain information that is directiy reiated to a patient's
health care.
Here, the majority concludes that there is no health care information in a SSOSA
evaluation. Majority at 1. Specifically, the majority concludes that SSOSA evaluations
are not '"directly relate[d] to [a] patient's health care.'" Majority at 7 (quoting RCW
70.02.010(16))(second alteration in original). However, SSOSA evaluations contain a
wealth of information that directly relates to an individual's health care.
A SSOSA is a special sentencing alternative that suspends the sentences of
qualifying sex offenders. RCW 9.94A.670. Before the court orders a SSOSA,a certified
sex offender treatment provider evaluates "whether the offender is amenable to
treatment." RCW 9.94A.670(3). Generally, the SSOSA evaluation is performed by the
Department of Health (DOH). RCW 9.94A.670(1)(a); RCW 16.155.020.
The majority concludes that SOSSA evaluations do not '"directly relate[ ]to [the]
patient's health care'" because a SSOSA evaluation's "purpose is to assist the court in
determining whether the offender should be granted an alternative sentence instead of
jail time."^ Majority at 7 (quoting RCW 70.02.010(16)). In so concluding, the majority
^ The majority also considers it "noteworthy that the treatment provider who completed the
offender's SSOSA evaluation is prohibited from providing subsequent treatment to the offender,
except in limited circumstances." Majority at 9(citing RCW 9.94A.670(13)). The majority concludes
John Does v. Dep't of Corrections, et a!., No. 94203-0
(Wiggins, J., dissenting)
injects into the definition of "health care information" a requirement that does not exist:
that information '"directly relates to the patient's health care'" only if it is solely "for the
direct purpose of health care." Id.(quoting RCW 70.02.010(16)). While assisting a court
in its sentencing determination is undoubtedly the purpose of a SSOSA evaluation, this
does not mean that the information in a SSOSA evaluation is not directly related to a
patient's health care. In other words, a SSOSA evaluation can still be directly related to
a patient's health care despite its use to aid a court in a sentencing decision.
Nothing in the PRA or UHCIA limits health care information to information that is
used so/e/y for the purpose of obtaining health care. Of. id. Rather, the information must
be "directly relate[d]" to an individual's health care. RCW 70.02.010(16). "Directly"
means "purposefully or decidedly and straight to the mark," "plainly and not by
implication," or "in unmistakable terms." Webster's Third New International
Dictionary 641 (2002). And to "relate" means to have a "logical or causal connection."
Id. at 1916. Evaluating the content within a SSOSA evaluation, in addition to its
purpose, reveals that SSOSA evaluations contain information directly related to an
offender's past, current, and future health care. Accordingly, this information is exempt
from disclosure under the PRA.
that this demonstrates that the legislature intended to separate the medical and forensic stages of
a SSOSA. Id. However, the text of ROW 9.94A.670(13) clearly indicates the legislature's actual
concern was the possible financial abuse of a system where an evaluator could diagnose and then
treat a patient: "The offender's sex offender treatment provider may not be the same person who
examined the offender under subsection(3)of this section or any person who employs, is employed
by, or shares profits with the person who examined the offender under subsection (3)of this section
... ."(Emphasis added.) In addition, the trial court cannot order a SSOSA without the opinion of a
medical professional on the offender's amenability to treatment. State v. Strauss, 119 Wn.2d 401,
421, 832 P.2d 78(1992)(stating that "a mental health care professional's opinion is necessary to
determine a defendant's amenability to treatment"(emphasis added)).
John Does v. Dep't of Corrections, et a!., No. 94203-0
(Wiggins, J., dissenting)
The DOH requires its evaluators to include a substantial amount of information
regarding the offender's current and historical mental, physical, and sexual health in a
SSOSA evaluation, including previous medical assessments; "[sjubstance abuse";
[p]sychological/physiological tests"; "[a] sexual history, sexual offense history and
patterns of sexual arousal/preference/interest"; "[p]rior treatment"; "[a]lcohol and drug
abuse"; "[s]tress"; "[m]ood"; "[s]exual patterns"; "[p]ersonal history including: [ ]
[m]edical"; "[m]ental health functioning including coping abilities, adaptation style,
intellectual functioning and personality attributes"; "[t]he overall findings of
psychological/physiological/medical assessment if these assessments have been
conducted"; "[t]he evaluator's conclusions regarding the appropriateness of community
treatment"; "[a] summary of the evaluator's diagnostic impressions"; "[a] proposed
treatment plan"; "[a]ntlcipated length of treatment, frequency and type of contact with
providers or affiliates, and supplemental or adjunctive treatment"; "[t]he specific issues
to be addressed in treatment and a description of planned treatment interventions
including involvement of significant others in treatment and ancillary treatment
activities"; and "[r]ecommendations for specific behavioral prohibitions, requirements
and restrictions on living conditions, lifestyle requirements, and monitoring by family
members and others that are necessary to the treatment process and community
safety." WAC 246-930-320.
Additionally, the SSOSA evaluation must include a personalized mental and
sexual health treatment plan that addresses and responds to the particular offender's
issues by outlining a plan for future health care:
John Does v. Dep't of Corrections, et a!., No. 94203-0
(Wiggins, J., dissenting)
(b) The examiner shall assess and report regarding the offender's
amenability to treatment and relative risk to the community. A proposed
treatment plan shall be provided and shall include, at a minimum;
(i) Frequency and type of contact between offender and therapist;
(ii) Specific issues to be addressed in the treatment and description
of planned treatment modalities;
(iii) Monitoring plans, including any requirements regarding living
conditions, lifestyle requirements, and monitoring by family members and
others;
(iv) Anticipated length of treatment; and
(v) Recommended crime-related prohibitions and affirmative
conditions, which must include, to the extent known, an Identification of
specific activities or behaviors that are precursors to the offender's offense
cycle, including, but not limited to, activities or behaviors such as viewing
or listening to pornography or use of alcohol or controlled substances.
RCW 9.94A.670(3).
Here, SSOSA evaluations contain information that plainly and unmistakably has
a direct connection to an offender's past, current, and future health care. For example,
the evaluator's findings of an offender's "prior treatment," and "personal medical history"
are a record of the offender's past "care, service, or procedure provided by a health
care provider" to "treat[ ] or maintain a patient's physical or mental condition." RCW
70.02.010(14), (14)(a). The "proposed treatment plan" is an outline of the offender's
needed "care . . . provided by a health care provider . . . to treat[ ] or maintain [the
offender's] physical or mental condition." RCW 9.94A.670(3)(b); RCW 70.02.010(14).
And, the findings of "psychological/physiological/mental assessment[s]," "the
evaluator's diagnostic impressions,""[sjubstance abuse,""[p]sychological/physiological
tests," and "[m]ental health functioning," are undoubtedly used "by a health care
provider" to "diagnose . . . a patient's physical or mental condition." WAC 246-930-320;
RCW 70.02.010(14).
John Does v. Dep't of Corrections, eta!., No. 94203-0
(Wiggins, J., dissenting)
The court's additional use of this information in sentencing does not disassociate
the information from the offender's health care. Its diagnostic and treatment purposes
remain. Because the SSOSA evaluation includes information directly related to a
patient's health care, it is exempt from disclosure under the PRA. RCW 42.56.360(2).
B. Forensic examinations may contain health care information
The majority also concludes that SSOSA evaluations do not contain health care
information because they are "forensic examination[s]" rather than medical
examinations. Majority at 7. Even assuming SSOSA evaluations are forensic
examinations, they still may and do contain health care information. Consequently, they
are exempt from disclosure under the PRA.
In reaching its conclusion that forensic examinations do not contain health care
information, the majority relies on State v. Suiiivan, 60 Wn.2d 214, 373 P.2d 474(1962).
Majority at 8. In Suiiivan, this court had to determine whether a doctor who observed
and treated a defendant pursuant to a court order was subject to the doctor-patient
privilege. 60 Wn.2d at 226. In reaching its conclusion, the court opined that'"when the
examination is made by the physician for the express purpose of publishing the
results,"' otherwise known as a "forensic examination," there is no doctor-patient
privilege, id. at 224 (quoting Strafford v. N. Pac. Ry. Co., 95 Wash. 450, 453, 164 P. 71
(1917)). Relying on this language, the majority concludes that because "SSOSA
evaluations are made for the purpose of publishing the results to the court," SSOSA
John Does v. Dep't of Corrections, eta!., No. 94203-0
(Wiggins, J., dissenting)
evaluations "are not subject to the same privacies and priviieges^^^ as medical
evaluations." Majority at 8.
Whether SSOSA evaluations are "published" to the court, does not determine
whether they are subject to disclosure under the PRA. Cf. id. When regulating the
disclosure of health care information, the legislature recognized that circumstances
exist where entities other than health care providers use health care information for
purposes other than treatment; however, the legislature made clear that even in those
circumstances, individuals retain a privacy interest in their health care information:
Persons other than health care providers obtain, use, and disclose health
record information in many different contexts and for many different
purposes. It is the public policy of this state that a patient's interest in the
proper use and disclosure ofthe 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). As a result, we cannot rely on the fact that
SSOSA evaluations are published to the court to determine whether the health care
information is subject to public disclosure under the PRA.
Instead, we must rely on the definition of health care information to determine
whether SSOSA evaluations contain any information that is protected from disclosure.
^ Whether a doctor-patient privilege exists has no bearing on the relevant inquiry of whether SSOSA
evaluations contain information directly related to a patient's health care. Neither the PRA nor the
UHCiA requires the existence of a doctor-patient privilege to protect health care information from
disclosure. In fact, the statutes do not even require that the health care information be between a
doctor and patient in order for that information to be protected. RCW 70.02.020 ("[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."). Consequently, the evaluations are
exempt from disclosure under the PRA, even if they do not possess the traditional doctor-patient
privilege of medical examinations.
8
John Does v. Dep't of Corrections, et a!., No. 94203-0
(Wiggins, J., dissenting)
Any information that is directly related to the diagnosis, treatment, or maintenance of
"a patient's physical or mental condition" qualifies as health care information. RCW
70.02.010(14)(a), (16). As discussed above, SSOSA evaluations contain such
information. Therefore, the health care information in SSOSA evaluations is exempt
from disclosure under the PRA.
C. Amenability to treatment is a legal determination that necessarily includes
health care information
Finally, the majority concludes that SSOSA evaluations do not contain health
care information because an offender's amenability to treatment is a legal
determination rather than a medical determination. Majority at 10. To reach this
conclusion, the majority again ignores the substance of a SSOSA evaluation, which
requires the opinion of a health care provider regarding the defendant's medical
receptiveness to treatment. That information is directly related to an offender's health
care and thus qualifies as health care information.
Courts are not limited to health care information when deciding whether an
offender is amenable to treatment. See, e.g., RCW 9.94A.670(4)("The court shall give
great weight to the victim's opinion whether the offender should receive a treatment
disposition under this section."). However,"a mental health care professional's opinion
is necessary to determine a defendant's amenability to treatment." Strauss, 119 Wn.2d
at 421 (emphasis added); see also State v. McNaliie, 123 Wn. 2d 585, 592, 870 P.2d
295(1994)(concluding that "an exceptional sentence cannot be sustained without 'the
opinion of a mental health professional that the defendant would likely not be amenable
to treatment'"(quoting State v. Pryor, 115 Wn.2d 445, 455, 799 P.2d 244(1990)). Thus,
9
John Does v. Dep't of Corrections, et a!., No. 94203-0
(Wiggins, J., dissenting)
the court's determination of amenabiiity to treatment inevitably contains information
directly related to an offender's health care—the opinions, diagnoses, and
recommendations of a medical professional regarding the offender's treatment.
Consequently, the fact that the court's determination of the offender's amenabiiity to
treatment involves consideration of nonmedical information does not negate the
presence of the health care information that the determination requires.
Plaintiffs may proceed under pseudonyms
I also disagree with the majority's conclusion that the trial court erred by allowing
the John Does to proceed in pseudonym for two reasons. First, the trial court
appropriately justified its actions under GR 15. Second, article I, section 10 of the
Washington State Constitution does not appiy and the trial court was not required to
consider the ishikawa^ factors. As a result, the trial court's order permitting the John
Does to proceed in pseudonym was not in error.
A. The trial courtJustified its order with written findings pursuant to GR 15
A court may order that a record be sealed when it "makes and enters written
findings that the specific sealing or redaction is justified by identified compelling privacy
or safety concerns that outweigh the public interest in access to the court record." GR
15(c)(2). When identifying compeiling privacy concerns justifying sealing or redaction,
this court has noted that "a plaintiff may proceed under a pseudonym to protect a
^ Seattle Times Co. v. Ishikawa, 97 Wn.2d 30, 640 P.2d 716 (1982).
10
John Does v. Dep't of Corrections, et a!., No. 94203-0
(Wiggins, J., dissenting)
privacy interest.'"^ N. Am. Council on Adoptable Children v. Dep't of Soc. and Health
Servs., 108 Wn.2d 433, 440, 739 P.2d 677 (1987).
Here, the trial court identified multiple privacy and safety concerns in a written
order, which justified the use of pseudonyms:
22. Disclosing the requested SSOSA evaluations maintained by
the DOC [Department of Corrections] would not be in the public interest
because it would harm victims, discourage sex offenders from seeking
and receiving SSOSA evaluations, discourage those offenders who do
receive SSOSA evaluations from being candid with their evaluator, make
it more difficult for Level I sex offenders to reintegrate, and disclose
sensitive health care information.
23. Disclosure of the requested SSOSA evaluations would
substantially injure public safety by undermining the SSOSA system and
discouraging reintegration of Level I sex offenders. Individuals who
receive SSOSA treatment have the lowest recidivism rates for any type of
crime, including sex offenses.
24. Disclosure of the requested SSOSA evaluations would
substantially injure Plaintiffs by reducing their housing and employment
opportunities and by creating the risk that their evaluations could be
accessed in a centralized location. Ms. Zink has already posted SSOSA
evaluations on a public website.
25. Disclosure of the requested SSOSA evaluations would
irreparably harm both Plaintiffs and Plaintiffs' victims because such
disclosure could not be undone.
" Even assuming that the John Does have a lessened privacy Interest because they have been
convicted of criminal offenses, their convictions do not subject them to unauthorized disclosures of
health care information. Of. majority at 14-15. The majority points to no authority to support its
contention that "convicted sex offenders" do not have "a legitimate privacy interest to protect in this
case." id. To the contrary, the legislature has recognized the overriding public interest of the State
in protecting all health care information from unauthorized disclosure: "Health care information is
personal and sensitive information that if improperly used or released may do significant harm to a
patient's interests in privacy, health care, or other Interests": "[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(1),
(4). The John Does' criminal status does not alter the definition of health care information or its
accompanying protections.
11
John Does v. Dep't of Corrections, et a!., No. 94203-0
(Wiggins, J., dissenting)
Clerk's Papers at 737-38. The trial court weighed these concerns with the public's
interest in knowing the names of parties: "[l]n my order, I did indicate some findings that
balanced the public interest in knowing their names against the Plaintiffs' interest in
privacy. And so the Court has conducted that balance and the order reflects that."
Report of Proceedings(RP)(Oct. 3, 2014) at 22.
The majority does not even acknowledge these findings by the trial court,
inexplicably concluding that "the trial court did not justify its actions under GR 15."
Majority at 16. Yet, as stated above, under GR 15, the trial court need only "make[]and
enter[ ] written findings that the specific sealing or redaction is justified by identified
compelling privacy or safety concerns that outweigh the public interest in access to the
court record." GR 15(c)(2). The trial court clearly did so in this case. As a result, it
appropriately justified its actions under GR 15 and did not err in ruling that the John
Does could proceed in pseudonym.
The concurring opinion contends that Hundtofte v. Encarnacion^ controls the
outcome of this case. Concurrence at 1. I disagree for two reasons. First, there is no
majority opinion in Hundtofte. Then-Chief Justice Madsen concurred in result in the
four-justice lead opinion but on different grounds—that GR 15 does not authorize
changing the caption of a case in the court index by substituting initials for full names.
Hundtofte, 181 Wn.2d at 16; see In re Pers. Restraint of Francis, 170 Wn.2d 517, 532
n.7, 242 P.3d 866 (2010) ("When there is no majority opinion, the holding is the
narrowest ground upon which a majority agreed."). As a result, even if we assume that
5181 Wn.2d 1, 16, 330 P.3d 168 (2014).
12
John Does v. Dep't of Corrections, eta!., No. 94203-0
(Wiggins, J., dissenting)
Hundtofte applies, the concurrence is mistaken that Hundtofte controls the issue before
us.
The second reason that Hundtofte does not control here is that Hundtofte dealt
with a different issue; whether a trial court could order that court records, including the
court docket, could be changed to remove the names of parties. 181 Wn.2d at 17
(Madsen, C.J., concurring). In contrast, here no court records must be changed.
Instead, we must determine whether the John Does could use pseudonyms. Given the
differences in the relevant issues, Hundtofte is easily distinguishable and inapposite.
For example, the trial court in Hundtofte failed to follow the requirements of GR 15. Id.
at 18 (Madsen, C.J., concurring). But here, the trial court complied with GR 15. For
these reasons, Hundtofte does not control and this dissent is "not in direct conflict" with
that opinion. Concurrence at 1.
B. Article I, section 10 does not apply here because experience and logic allow
the use of pseudonyms when privacy and safety concerns outweigh the public
interest
The majority further concludes that the trial court erred by not conducting a
proper Ishikawa analysis. Majority at 17. "Whether an Ishikawa analysis is necessary
depends on whether article I, section 10 applies." State v. S.J.C., 183 Wn.2d 408, 412,
352 R3d 749(2015). And "[wjhether article I, section 10 applies depends on application
of the experience and logic test." Id. Under the experience prong, we consider'"whether
the place and process have historically been open to the press and general public.'" Id.
at 417(internal quotation marks omitted)(quoting In re Del of Morgan, 180 Wn.2d 312,
325, 330 R3d 774(2014)). Under the logic prong, we consider '"whether public access
13
John Does v. Dep't of Corrections, et a!., No. 94203-0
(Wiggins, J., dissenting)
plays a significant positive role in the functioning of the particular process in question.'"
Id. at 430 (internal quotation marks omitted)(quoting Morgan, 180 Wn.2d at 325).
Here, experience shows that the names of plaintiffs historically have not been
open to the public when privacy and safety concerns outweigh the public interest.® See,
e.g., Jane Doe v. Boeing Co., 121 Wn.2d 8, 846 P.2d 531 (1993)(employee used a
pseudonym to bring an action against former employer for handicap discrimination):
John Doe v. Grp. Health Coop, of Puget Sound, Inc., 85 Wn. App. 213, 932 P.2d 178
(1997), overruled on other grounds by Reld v. Pierce County, 136 Wn.2d 195,961 P.2d
333 (1998) (using a pseudonym, an employee sued health care provider for the
unauthorized disclosure of health care information). The majority dismisses other cases
where plaintiffs used pseudonyms because it reasons that the parties in those cases
"ha[d] not been convicted of any crime [and] may have a legitimate privacy interest."
Majority at 14. Again, the majority mistakenly relies on its incorrect assumption that as
convicted offenders, the John Does do not and cannot have a legitimate privacy Interest
in the health care information contained in their SSOSA evaluations. As discussed
above, this premise is false. All patients have a legitimate privacy interest in preventing
the unauthorized disclosure of their health care information; that privacy interest is not
contingent on whether a patient is a convicted offender or not. See RCW 70.02.005
® The majority mistakenly frames the issue as whether "the names of people convicted of criminal
offenses, including sex offenders, have historically been open to the public." Majority at 14. The
names of the John Does, as well as their convictions, are already open to the public. The question
here is whether sufficient privacy and safety concerns outweigh the public's interest in knowing the
names of convicted offenders trying to prevent the unauthorized disclosure of their health care
information. See GR 15(c)(2). As discussed above, the trial court concluded that there were
sufficient privacy and safety concerns that outweighed the public interest in this case to justify the
use of pseudonyms.
14
John Does v. Dep't of Corrections, et a!., No. 94203-0
(Wiggins, J., dissenting)
(emphasizing the importance of protecting heaith care information and making no
mention of the criminal status of the patient).
In addition, logic supports the John Does' use of pseudonyms in this case. When
privacy and safety concerns outweigh the public's interest, ailowing the use of
pseudonyms permits piaintiffs to seek relief while still protecting their privacy and
ensuring safety. See, e.g., State v. Ward, 123 Wn.2d 488, 494 n.2, 869 P.2d 1062
(1994) ("Appeliant brought this action under a pseudonym, claiming that public
disclosure of his true name would effectively deprive him of the relief sought."); N. Am.
Council on Adaptable Children, 108 Wn.2d at 440 (stating that "a plaintiff may proceed
under a pseudonym to protect a privacy interest"). The public does not require the John
Does' real names to fulfill its important roie to "scrutinize the sentences given to
offenders" or to "ensure the court is following the sentencing statutes, is not overly
deferential in granting SSOSA sentences, or is denying SSOSA sentences where
warranted." Majority at 15-16.
In reaching a contrary conclusion, the majority ignores the numerous other
sources of SSOSA-related information that are subject to public disclosure. The trial
court does not limit itself to health care information when evaluating whether an
offender qualifies for a SSOSA sentence:
[T]he court shall consider whether the offender and the community will
benefit from use of this alternative, consider whether the alternative is too
lenient in light of the extent and circumstances of the offense, consider
whether the offender has victims in addition to the victim of the offense,
consider whether the offender is amenable to treatment, consider the risk
the offender would present to the community, to the victim, or to persons
of similar age and circumstances as the victim, and consider the victim's
15
John Does v. Dep't of Corrections, etai, No. 94203-0
(Wiggins, J., dissenting)
opinion whether the offender should receive a treatment disposition under
this section.
RCW 9.94A.670(4). Absent another applicable exemption, the non-health care
information in a SSOSA evaluation used by the court to sentence an offender, like the
risk of the offender to the community or the offender's past similar offenses, is open to
public scrutiny. Actual SSOSA sentences are also available to the public for
examination, as are the court's reasons for imposing a SSOSA, which must be entered
in writing. RCW 9.94A.670(4)(stating that the court must "enter written findings stating
its reasons for imposing the treatment disposition"). The public has several sources of
available information to It; it does not also require the John Does' real names to fulfill
its important role.
Because both experience and logic allow plaintiffs to use pseudonyms when
privacy and safety concerns outweigh the public's interest, article I, section 10 does not
apply. As a result, the trial court was not required to perform an Ishikawa analysis.'^
CONCLUSION
SSOSA evaluations contain health care information and that information is
exempt from disclosure under the PRA. RCW 42.56.360(2). In addition, the trial court
did not run afoul of GR 15 or article I, section 10 when it permitted the John Does to
proceed in pseudonym. I would affirm the Court of Appeals. As a result, I respectfully
dissent.
^ Even though it was not required, the trial court indicated that it did consider the Ishikawa factors
when it made its ruling that granted the John Does' request to use pseudonyms. RP (Oct. 3, 2014)
at 22 ("I did consider the Ishikawa and Bone-Club factors. . . I'm sort of by analogy determining that
it's appropriate for the Court to consider the open courts and public access to information cases in
determining the ability to go forward with the John Doe G, H, and J pseudonyms.").
16
John Does v. Dep't of Corrections, eta!., No. 94203-0
(Wiggins, J., dissenting)
17