John Doe v. Benton County Prosecuting Attorney

Opinion

FILED

February 9, 2016

In the Office of the Clerk of Court

W A State Court of Appeals, Division III

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

DIVISION THREE

STATE OF WASHINGTON, ) ) No. 33064-8-111 Respondent, ) ) v. ) ) JOHN DOE 1, ) PUBLISHED OPINION ) Appellant. ) ) JOHN DOE 1, ) ) Appellant, ) ) v. ) ) PROSECUTING ATTORNEY OF ) BENTON COUNTY ) ) Respondent. )

KORSMO, J. - This court accepted review of petitioner John Doe's challenge to a

trial court decision refusing to accept redacted filings in his petition for relief from

registration as a sexual offender. Believing that Doe has identified a legally sufficient

basis for relief, we remand for the trial court to conduct the remainder of the analysis

required before sealing or redacting materials within a court record. No. 33064-8-III John Doe v. Benton County

FACTS

This action is a spin-off of a case pending in the Washington Supreme Court, John

Doe A, et al. v. Washington State Patrol and Donna Zink, no. 90413-8 (argued September

17, 2015). In that action, several level one sex offenders in the Benton-Franklin County

area obtained permanent injunctions to prevent release of their sex offender registration

information to Ms. Zink. She had sought the information under the Public Records Act

(PRA), chapter 42.56 RCW, in order to post the names of all level one sex offenders

living in the area. I The names of level one sex offenders typically are not released to the

public; those who successfully obtained the injunction were permitted to proceed

anonymously.

Petitioner John Doe in this case is one of the John Does who obtained an

injunction in the Washington State Patrol action. Convinced that he satisfied the

requisites for relief from further sex offender registration, he filed the current petition

after first obtaining permission from a superior court judge to file the petition as a civil

action under the pseudonym of John Doe.

Doe subsequently filed a motion to redact all identifying information from the

documents he would need to file to support his petition, or alternatively seal the court

file, noting the threat of Ms. Zink identifying him as a level one sex offender ifhis

I Ms. Zink has made similar PRA requests in other counties.

No. 33064-8-III John Doe v. Benton County

identity was discernable from the court file. The prosecutor opposed the request and the

matter went to hearing before a different judge.

The trial court rejected the request to submit redacted documents, finding the case

indistinguishable from State v. McEnry, 124 Wn. App. 918, 103 P.3d 857 (2004). Noting

that this case was "piggy-backing" onto the pending PRA case, the. court concluded that it

"cannot find that there is a serious or imminent threat to some in-court interest of John

Doe." Report of Proceedings at 15. A written order was entered denying the motion, but

allowing petitioner to file additional motions supported by new declarations. Clerk's

Papers at 63.

After accepting review, this court heard oral argument. Counsel for Doe advised

the panel that if the trial court's ruling withstood appellate review, his client would

withdraw the petition in order to maintain his privacy.

ANALYSIS

This appeal presents the sole issue of whether Doe established that a serious and

imminent threat to an important interest existed. We conclude that he did and remand for

the trial court to consider whether or not to grant his motion.

This case sits at one corner of the intersection of sex offender registration law and

a court's open records obligations. A person convicted of a sexual offense has a duty to

register with local law enforcement. RCW 9A.44.130. The Washington State Patrol is

required to maintain a central registry of all sex offenders based upon information

forwarded by the county sheriffs. RCW 43.43.540. The county sheriff must assess all

local registered sex offenders and assign them to one of three categories based on the risk

ofreoffense. RCW 4.24.550; .5501. Local law enforcement is authorized to release the

names of offenders placed in the level two or level three categories. However, except to

a small category of people including victims or witnesses, law enforcement is not

permitted to release the names of those in level one, which is the category considered

least likely to reoffend, unless those persons are out of compliance with their registration

obligations. RCW 4.24.550(5)(a). Any offender who satisfies the statutory requirements

can be relieved of the obligation to register. RCW 9A.44.142-.143. The action for relief

from registration typically is filed in the county where the offense giving rise to the

obligation to register was prosecuted. RCW 9A.44.l42(3); .143(4).

Court files are presumptively open to the public. City ofFederal Way v. Koenig,

167 Wn.2d 341, 217 P.3d 1172 (2009); Nast v. Michels, 107 Wn.2d 300,303-04,730

P.2d 54 (1986). Efforts to seal or redact a court record are controlled by OR 15. The

sealing procedure is set forth in OR 15(c), which in relevant part2 states:

(c) Sealing or Redacting Court Records. (1) In a civil case, the court or any party may request a hearing to seal or redact the court records. In a criminal case or juvenile proceedings, the court, any party, or any interested person may request a hearing to seal or redact the court records. Reasonable notice of a hearing to seal must be given to all parties in the case. In a criminal case, reasonable notice of a

2 The remaining sections of OR 15(c) deal with the court clerk's response to sealing or redaction orders.

No. 33064-8-111 John Doe v. Benton County

hearing to seal or redact must also be given to the victim, ifascertainable, and the person or agency having probationary, custodial, community placement, or community supervision over the affected adult or juvenile. No such notice is required for motions to seal documents entered pursuant to CrR 3.1(f) or CrRLJ 3.l(f). (2) After the hearing, the court may order the court files and records in the proceeding, or any part thereof, to be sealed or redacted if the court 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. Agreement of the parties alone does not constitute a sufficient basis for the sealing or redaction of court records. Sufficient privacy or safety concerns that may be weighed against the public interest include findings that: (A) The sealing or redaction is permitted by statute; or (B) The sealing or redaction furthers an order entered under CR 12(f) or a protective order entered under CR 26(c); or (C) A conviction has been vacated; or (D) The sealing or redaction furthers an order entered pursuant to RCW 4.24.611; or (E) The redaction includes only restricted personal identifiers contained in the court record; or (F) Another identified compelling circumstance exists that requires the sealing or redaction. (3) A court record shall not be sealed under this section when redaction will adequately resolve the issues before the court pursuant to subsection (2) above.

Whether a file can be sealed or redacted is subject to the same five-factor test that

is used for determining the propriety of a courtroom closure stated in Seattle Times Co. v.

Ishikawa, 97 Wn.2d 30, 640 P.2d 716 (1982). See Dreilingv. Jain, 151 Wn.2d 900, 904,

93 PJd 861 (2004). Those factors are: (1) the proponent of closure must make a

showing of compelling need, (2) any person present when the motion is made must be

given an opportunity to object, (3) the means of curtailing open access must be the least

restrictive means available for protecting the threatened interests, (4) the court must

weigh the competing interests of the public and of the closure, and (5) the order must be

no broader in application or duration than necessary. Ishikawa, 97 Wn.2d at 37-39. '

When a trial court applies the proper legal analysis, its decision on a sealing ( motion is reviewed for abuse of discretion. Dreiling, 151 Wn.2d at 907. Discretion is

abused when it is exercised on untenable grounds or for untenable reasons. State ex ref. I f f

I, Carroll v. Junker, 79 Wn.2d 12,26,482 P.2d 775 (1971).

The essence of Doe's complaint is that the statutory protection from disclosure of

his level one status will be undone by the exercise of his statutory right to seek relief

from that status. While that same problem will occur with all level one offenders who

seek relief from registration, Doe contends his situation presents a showing of

particularized risk due to Ms. Zink's on-going efforts to learn his identity.

Here, the trial court, relying on the decision in McEnry, concluded that Doe did

not satisfy the first Ishikawa factor-a showing of compelling need. We believe Doe

made a stronger and more particularized showing than occurred in McEnry and conclude

that he did satisfy the first prong of the Ishikawa standard.

In McEnry the defendant had been convicted of unlawful manufacture of marijuana

and unlawful possession of a firearm. 124 Wn. App. at 921. After completing his

sentence obligations and obtaining a certificate of discharge, he moved to vacate the

convictions and seal the court file. The prosecution did not oppose the motion to vacate,

but did challenge the sealing request, contending that there were no compelling

circumstances to justifY sealing the file. Id. Mr. McEnry argued that a potential employer

conducting a background check might discover the information, but indicated he did not

expect that his current employer would do so. Id. The trial court granted the motion to

seal, noting that while the conviction would not affect either McEnry's employment or

housing, it might cause harm in his business or personal life. Id. at 921-22.

On appeal, Division Two of this court concluded that the defendant failed to show

that there was a '" serious and imminent' threat to an important interest." Id. at 926

(quoting Ishikawa, 97 Wn.2d at 37). As the defendant conceded that there was no

pending records check by his employer and had argued only that discovery of the

conviction "could" affect the employment, there was no showing of harm. Id. The

sealing order was reversed. Id. at 927-28.

Unlike McEnry, here Doe established that there was a specific threat to an

important personal interest, the nondisclosure of his identity as a level one offender. In

light of the efforts being made to obtain the identity of every level one sex offender, the

trial court concluded that Doe's interest was simply one held in common by all level one

offenders. Given the broad scope of Ms. Zink's requests, the trial court's assessment of

the situation is understandable. For two reasons, however, we do not believe that

observation is controlling here. First, the two actions are distinct. The pending

Washington State Patrol case is an action to obtain the names of all level one offenders in

the central registry. The outcome of that case will not control the outcome of this one,

which will determine whether Doe's name should remain on the registry. The disclosure

or nondisclosure of the names will not affect whether Doe has satisfied the statutory

requirements for relief from registration.

Second, Doe established in the Washington State Patrol action a sufficient threat

to his individual interest to obtain a permanent injunction against Ms. Zink. That

showing set him apart from most of the other level one offenders. There the trial court

concluded that threat to Doe's privacy interest was sufficiently genuine to enjoin the

disclosure. 3 Under those circumstances, we believe Doe has established a specific threat

to his personal interest in the nondisclosure of his level one status that satisfies the first

prong of the Ishikawa analysis in this case. His right to obtain relief from registration has

been chilled by the threat of the possible disclosure of his identity in the course of

processing his petition.

Because it found no privacy interest, the trial court did not consider the other

Ishikawa factors, and in particular did not balance Doe's interest with the public's interest

in disclosure under the fourth Ishikawa factor. It is the trial court's job to give weight to

the individual interest and consider that weight against the public interest. McEnry, 124

3 Since Doe has a statutory right against nondisclosure, we necessarily reject any suggestion that only his "in-court" rights can be considered. Since the parties do not address that aspect of the trial court's ruling, we likewise do not further consider that matter.

Wn. App. at 926. The trial court may accord Doe's interest little weight in light of the

fact that his criminal file (presumably) remains open to the public. It might accord his

statutory privacy right great weight, or perhaps somewhere between those two positions.

It likewise might not consider the public interest that strong in light of the statutory

policy interests at issue, or it might accord the public interest great weight. These

decisions we leave in the first instance to the trial court's balancing process.

The case is remanded for further proceedings consistent with this opinion.

WE CONCUR:

Lawrence-Berrey, J.