Koenig v. Thurston County

155 Wash. App. 398

• Court: Court of Appeals of Washington
• Decided: April 6, 2010
• Docket: No. 37446-3-II
• Status: Published

Opinions

Penoyar, A.C.J.

¶1 David Koenig appeals the trial court’s order denying his motion for partial summary judgment and ruling that a victim impact statement and a special sex offender sentencing alternative (SSOSA) evaluation were exempt from disclosure under the Public Records Act (PRA), chapter 42.56 RCW.¹ We affirm that victim impact statements are exempt from the PRA under the investigative record exemption, but we reverse the trial court’s determination that SSOSA evaluations are exempt. We hold that SSOSA evaluations must be disclosed after redaction of any identifying information regarding the victim and certain other third parties. We also remand for a determination of penalties and attorney fees under RCW 42.56.550(4).

FACTS

¶2 After James Lerud pleaded guilty to eight counts of voyeurism, he received a SSOSA² disposition from the Thurston County Superior Court.³ Shortly after Lerud’s arrest, the Seattle Post-Intelligencer published a short article quoting his victim and former roommate, who described how Lerud had videotaped her in the shower.

¶3 On August 17, 2000, Koenig submitted a request for public records in the Lerud case to the Thurston County prosecuting attorney. Koenig asked to inspect investigative files in the case, including witness statements, victim impact statements, and any associated documents or affidavits. The prosecuting attorney’s file included Lerud’s 14-page SSOSA evaluation dated June 26, 2000. Koenig sent a similar public records request to the Thurston County Superior Court clerk’s office. The clerk’s office responded that Koenig could come to the courthouse to view the court file. The clerk’s office also informed Koenig that the prosecuting attorney’s motion to seal particular documents in the Lerud case would be heard the following week.

¶4 Following that hearing, the trial court ordered the victim impact statement and Lerud’s privileged medical and psychological reports to be sealed from public disclosure in order to protect the victim’s and Lerud’s privacy. The prosecuting attorney’s office then mailed copies of the case documents to Koenig, withholding the victim impact statement and Lerud’s SSOSA evaluation based on the court’s order.

¶5 On September 3, 2004, Koenig filed a public disclosure complaint against Thurston County and the Thurston County prosecuting attorney. On August 30, 2007, he moved for partial summary judgment on the issue of whether the SSOSA evaluation and victim impact statement were exempt from public disclosure. After a hearing, the trial court ruled in a letter opinion that the records were exempt from disclosure under RCW 42.56.240(1). The trial court subsequently denied Koenig’s motion for partial summary judgment. The parties entered a stipulated order providing that the order to seal the documents was not binding on Koenig and that it did not restrict the prosecuting attorney’s disclosure of the documents under the PRA. Koenig now appeals the denial of his summary judgment motion.

ANALYSIS

¶6 The public has a common law right of access to court case files. Nast v. Michels, 107 Wn.2d 300, 303, 730 P.2d 54 (1986). Access to court files rests within the trial court’s discretion and the PRA does not apply. Nast, 107 Wn.2d at 304; see also City of Federal Way v. Koenig, 167 Wn.2d 341, 217 P.3d 1172 (2009). Thus, the trial court’s order sealing the victim impact statement and SSOSA evaluation in the Lerud court file is not at issue.⁴ Rather, the question here is whether the prosecuting attorney’s office can refuse to disclose its copies of the same documents under the PRA.

¶7 The PRA guarantees the public full access to information concerning the workings of the government. Amren v. City of Kalama, 131 Wn.2d 25, 31, 929 P.2d 389 (1997). The PRA preserves “the most central tenets of representative government, namely, the sovereignty of the people and the accountability to the people of public officials and institutions.” O’Connor v. Dep’t of Soc. & Health Servs., 143 Wn.2d 895, 911, 25 P.3d 426 (2001).

¶8 The PRA requires disclosure of all public records unless an exemption applies. Cowles Publ’g Co. v. Pierce County Prosecutor’s Office, 111 Wn. App. 502, 505, 45 P.3d 620 (2002). When a party seeks a public record, the government agency carries the burden of proving that the record is exempt from disclosure. Koenig v. City of Des Moines, 158 Wn.2d 173, 180, 142 P.3d 162 (2006). Additionally, if redaction would eliminate the need for an exemption, the PRA requires disclosure of the redacted record. RCW 42.56.210(1).

¶9 We review an agency’s action under the PRA de novo. RCW 42.56.550(3). An appellate court stands in the same position as the trial court where the record consists only of affidavits, memoranda, and other documentary evidence. Progressive Animal Welfare Soc’y v. Univ. of Wash., 125 Wn.2d 243, 252, 884 P.2d 592 (1994) (PAWS II). We construe the PRA’s disclosure requirements liberally, and its exemptions are “precise, specific, and limited.” PAWS II, 125 Wn.2d at 251, 258.

¶10 The parties agree that the documents at issue are public records. See RCW 42.56.010(2) (public record subject to disclosure under the PRA is “any writing containing information relating to the conduct of government or the performance of any governmental or proprietary function prepared, owned, used, or retained by any state or local agency”). The question is whether the county may withhold these public records under RCW 42.56.240(1), which exempts from public inspection and copying “specific investigative records compiled by investigative, law enforcement, and penology agencies . . . the nondisclosure of which is essential to effective law enforcement or for the protection of any person’s right to privacy,” and whether, if that exemption applies, the records must be disclosed after redaction.

I. Victim Impact Statement

A. Exemption

1. Investigative Record

¶11 The victim impact statement is eligible for the RCW 42.56.240(1) exemption if it is an investigative record compiled by law enforcement agencies. Records fall within this category if they are “ ‘compiled as a result of a specific investigation focusing with special intensity upon a particular party.’ ”Dawson v. Daly, 120 Wn.2d 782, 792-93, 845 P.2d 995 (1993) (quoting Laborers Int’l Union, Local No. 374 v. City of Aberdeen, 31 Wn. App. 445, 448, 642 P.2d 418 (1982)), abrogated in part on other grounds by Soter v. Cowles Publ’g Co., 162 Wn.2d 716, 755, 174 P.3d 60 (2007). A record need not be created by law enforcement to be compiled by law enforcement, and documents created for one purpose are not disqualified from being “ ‘compiled’ ” for another purpose. Newman v. King County, 133 Wn.2d 565, 572-73, 947 P.2d 712 (1997) (internal quotation marks omitted) (quoting John Doe Agency v. John Doe Corp., 493 U.S. 146, 155, 110 S. Ct. 471, 107 L. Ed. 2d 462 (1989)); Cowles Publ’g Co., 111 Wn. App. at 508.

¶12 In Cowles Publishing Co., a mitigation package that the defendant submitted to a prosecutor, who was investigating whether to seek the death penalty, qualified as an investigative record. 111 Wn. App. at 508. The court noted that the investigation focused on the defendant and that the prosecutor used the mitigation information as an aid in making a decision mandated by the duties of his office. Cowles Publ’g Co., 111 Wn. App. at 508. “[0]ne part of a prosecutor’s investigation focuses on the question of an appropriate penalty.” Cowles Publ’g Co., 111 Wn. App. at 508. “ ‘[A]ny documents placed in [an] investigation file satisfy the requirement that the information is compiled by law enforcement.’ ” Cowles Publ’g Co., 111 Wn. App. at 508 (second alteration in original) (quoting Newman, 133 Wn.2d at 573).

¶13 Koenig argues that a victim impact statement is not an investigative record because its purpose is to give the victim a right to comment to the trial court on the crime. Article I, section 35 of the Washington Constitution gives victims the right to make a statement at sentencing, subject to the same procedural rules that govern the defendant’s rights. Also, RCW 7.69.030(13) gives victims the right

[t]o submit a victim impact statement or report to the court, with the assistance of the prosecuting attorney if requested, which shall be included in all presentence reports and permanently included in the files and records accompanying the offender committed to the custody of a state agency or institution.

¶14 Koenig further contends that a victim impact statement does not qualify as an investigative record because an agency neither prepared nor compiled the statement. He argues that the statement’s purpose is to assist the court, not the prosecutor’s office, in reaching a sentencing decision.

¶15 Thurston County responds that victim impact statements are included in presentence reports that both the prosecuting attorney and the court receive. While the county concedes that the sentencing court considers presentence reports, this is not determinative. Prosecutors also rely on these reports, and the victim impact statements they contain, as investigative records that assist them in making their sentencing recommendations.⁵

¶16 A prosecutor’s office victim advocate filed a declaration stating that she sends victim impact statement forms to crime victims as part of her job. The advocate testified that “[t]his is done for sentencing purposes.” Clerk’s Papers (CP) at 278. The advocate provides the original impact statement to the trial court and a copy to the deputy prosecutor handling the case. The deputy prosecutor in the Lerud case confirmed that victim impact statements provide his office with information about how crimes affect victims.

¶17 Koenig, believing this issue to be a purely legal one, submitted no evidence to counter the facts in the county’s declarations.⁶ The trial court determined that the prosecuting attorney in the Lerud case procured the victim impact statement as part of his statutory duty to investigate and make sentencing recommendations to the court. The trial court concluded that “the victim impact statement is a record compiled by law enforcement.” CP at 260.

¶18 We agree with the county that a victim impact statement held by a prosecutor’s office and prepared for sentencing is an investigative record compiled by law enforcement. The prosecutor’s office seeks out and compiles the statement as part of a specific investigation focused on a particular person. The prosecutor is entitled to argue for an appropriate penalty at sentencing. See RCW 9.94A.500(1). An important factor at sentencing is the seriousness of the offense, including the effect of the crime on any victims. RCW 9.94A.010(1); RCW 9.94A.500(1). Thus, one part of a prosecutor’s investigation focuses on the crime’s impact on the victim. That a victim impact statement is submitted to a court and potentially available as a court record does not preclude it from being an investigative record in the prosecutor’s office compiled by law enforcement. The prosecutor and the trial court considered the victim impact statement at issue here in preparing for the Lerud sentencing. Accordingly, the victim impact statement qualifies as an investigative record compiled by law enforcement.

2. Essential to Effective Law Enforcement

¶19 If a record is an investigative record compiled by law enforcement, its nondisclosure must be “essential” to law enforcement or to protect a person’s right to privacy for that record to be exempt from disclosure under RCW 42.56.240(1). Whether nondisclosure is essential to effective law enforcement is an issue of fact. Ames v. City of Fircrest, 71 Wn. App. 284, 295, 857 P.2d 1083 (1993). The broad language of this exemption, which the legislature has not defined, clashes with the PRA’s presumption and preference for disclosure. Newman, 133 Wn.2d at 572. When an agency claims this exemption, the courts may consider affidavits from those with direct knowledge of and responsibility for the investigation. See Newman, 133 Wn.2d at 573 (quoting Dickerson v. Dep’t of Justice, 992 F.2d 1426, 1431-32 (6th Cir. 1993)).

¶20 Several declarants in this case referred to the need to keep victim impact statements confidential. The victim in the Lerud case wrote that her statement was private and personal and that she trusted the prosecutor’s office not to give out copies to the public at large:

The crime itself was one of invasion of privacy, thus it makes this demand for my impact statement that much more disturbing .... If my statement is determined to be part of the “public domain” and given out upon request, I will be victimized once again .... I did not ask to be a victim of a crime, and I don’t want to believe that by being a victim of a criminal act that I’ve been stripped of my right to privacy. I would not have provided a Victim Impact Statement if I had been told that the statement would be a public document to be given to any and all who asked for it.

CP at 125-26.

¶21 The deputy prosecutor in Lerud stated his opposition to disclosure as well:

For many years, this office has taken a “victim centered” approach to prosecution. As part of that philosophy, I believe that a victim’s privacy must be closely guarded and only compromised when necessary in the interests of justice. To do otherwise, in my view, creates a chilling effect on the willingness of victims to report crime, provide information and cooperate with the prosecution. Therefore, the protection of victim privacy is critical to the effectiveness of law enforcement and the criminal justice system. Furthermore, the legislature (RCW 7.69.010) has mandated that prosecuting attorneys vigorously protect the rights of crime victims which include the right to be treated with dignity, respect, courtesy and sensitivity. If I have knowledge that anything a victim may provide will be handed over to the public through a public disclosure request, this office will inform the victim of that possibility. It is my opinion that if a victim knows this, he or she will be unwilling to provide a true and accurate impact statement.

CP at 105-06.

¶22 The prosecutor’s office victim advocate also wrote that victim impact statement disclosures would have an adverse impact on effective law enforcement:

Victims have a statutory right to give a statement to the court at the time of sentencing (RCW 7.69). Often times, victims prepare and provide these statements to the State prior to completion of investigations and adjudication. Victim Impact Statements typically contain descriptions of embarrassing, intimate and violent acts . . . . [T]o know their raw emotions and most painful experiences as described in their own words could be released to the public upon a simple request, could lead the victim to decide not to make an impact statement. Such a result could seriously hinder investigations, prosecutions and hope of recovery.

CP at 277-78.

¶23 In an additional declaration, the Washington Coalition of Sexual Assault Programs’ legal director stated that if victim impact statements were subject to public disclosure, many victims of sexually violent crime would not participate in the criminal justice system in any meaningful way. The Washington Coalition of Crime Victim Advocates’ executive director also opposed public disclosure of victim impact statements, observing that many courts seal victim impact statements after sentencing, stating that “[rieleasing those sealed records to just any member of the public would be a great disservice to crime victims, would tend to dissuade them from cooperating with law enforcement and the criminal justice system, and could put the victim’s safety at risk.” CP at 123.

¶24 Koenig did not rebut the substance of these declarations with any affidavits or evidence of his own. Koenig argues that nondisclosure is not essential to effective law enforcement because the judicial system functions even if a victim declines to file a statement for fear that it will be made public. He suggests that victims can self-edit their impact statements to remove embarrassing or private details. Koenig also asserts that victim impact statements are routinely disclosed to anyone who attends a sentencing hearing and that their confidentiality is not essential. Finally, Koenig points out that the victim in this case did not state that she would not have cooperated with law enforcement efforts to prosecute Lerud had she known that disclosure of her victim impact statement was required. Therefore, according to Koenig, no harm to law enforcement would have resulted if the victim had refused to file a statement.

¶25 We must determine whether nondisclosure of these statements is essential to effective law enforcement. The legislature has decreed that victims have a right to file such statements and to be treated with courtesy and sensitivity at all stages of the criminal justice process. See RCW 7.69.010 (stating legislature’s intent that all crime victims are treated with “dignity, respect, courtesy, and sensitivity” and that victims’ rights are “honored and protected by law enforcement agencies, prosecutors, and judges in a manner no less vigorous than the protections afforded criminal defendants”); RCW 7.69.030(4) (reasonable effort shall be made to protect victims from harm arising out of cooperation with prosecution efforts); RCW 7.69.030(13).

¶26 In this case, the victim impact statement was contained in a confidential court file even before it was sealed, and the trial court noted that it would not have been disclosed to the public absent a court order. Written impact statements may contain details that the victim does not disclose in an oral statement made at the sentencing hearing. Therefore, the written statement may be the only way a victim feels free to fully explain the crime’s impact. Public disclosure of such statements would have a chilling effect by making victims reluctant to fully disclose the impact of crimes. Additionally, disclosure would discourage victims from submitting victim impact statements in the first place. Here, the victim declared that she would not have submitted a victim impact statement had she known that it was subject to public disclosure.

¶27 An arguably similar chilling effect was dispositive in Cowles Publishing Co.7 There, we observed that disclosure of mitigation packages might make a defendant’s family members reluctant to share their personal feelings and information about the defendant and might adversely impact a prosecutor’s ability to obtain all information favorable to the defendant in deciding whether to seek the death penalty. Cowles Publ’g Co., 111 Wn. App. at 509-10. Consequently, the confidentiality of a mitigation package was essential to effective law enforcement.

¶28 Sentencing decisions are part of the law enforcement process, and a victim impact statement is an important tool in reaching these decisions. See Brouillet v. Cowles Publ’g Co., 114 Wn.2d 788, 796, 791 P.2d 526 (1990) (law enforcement involves imposition of sanctions for unlawful conduct, including a fine or prison term); State v. Crutchfield, 53 Wn. App. 916, 927, 771 P.2d 746 (1989), overruled on other grounds by State v. Chadderton, 119 Wn.2d 390, 396, 832 P.2d 481 (1992) (sentencing court should consider crime’s impact on victims). Disclosure of victim impact statements would not honor victims or protect their statutory right to present such statements. See RCW 7.69.010, .030(4). Koenig’s suggestion that victims can simply edit out uncomfortable details contradicts the purpose of impact statements. We conclude that the nondisclosure of the victim impact statement at issue is essential to effective law enforcement. Consequently, the trial court did not err when it ruled that this statement was exempt from disclosure under the PRA.

¶29 Because RCW 42.56.240(1) provides that a record is exempt from disclosure if it is either essential to law enforcement or to the protection of any person’s right to privacy, we need not address the State’s strong argument that nondisclosure of the victim impact statement is essential to protect individual privacy.

B. Redaction of the Victim Impact Statement

¶30 Koenig next argues that even if the victim impact statement contains some exempt information, he is entitled to receive a redacted version under RCW 42.56.210(1). The PRA generally does not allow withholding records in their entirety. PAWS II, 125 Wn.2d at 261. Instead, agencies must withhold only those portions that fall within a specific exemption. PAWS II, 125 Wn.2d at 261. According to Koenig, the victim impact statement must be released to him absent identifying details, with an explanation provided for each redaction. See RCW 42.56.210(3) (agency responses refusing inspection in whole or part must explain how exemption applies to information withheld). Koenig asserts that he is entitled to an in camera review of the redactions under RCW 42.56.550(3).

¶31 The County argues that redaction will not cure the law enforcement issue because victims will be reluctant to provide victim impact statements if they know the statements will be disclosed in any form. The Lerud victim strongly objected to the disclosure of a redacted version of her impact statement, stating, “If my statement is determined to be part of the ‘public domain’ and given out upon request, I will be victimized once again.” CP at 126. The Washington Coalition of Crime Victim Advocates’ executive director agreed that redaction would not sufficiently protect victims and ensure effective law enforcement because “[a] crime victim would be hesitant to provide in writing a statement relating to how a crime has truly impacted his or her life if s/he knew that a member of the public could obtain the document from the prosecutor, [notwithstanding] the fact that his or her name has been redacted.” CP at 124. The deputy prosecutor in Lerud noted that “[i]t is extremely difficult to establish trust with a victim” and predicted that disclosure of an impact statement even after redaction “will have a chilling effect on law enforcement.” CP at 106.

¶32 The redaction of any information identifying the victim from the victim impact statement will not appropriately address the chilling effect that disclosure would have on law enforcement. Victims’ names are a matter of public record and the requesting party could easily rely on court documents to connect the named victim in court documents with the unnamed victim in the impact statement. The ease with which a victim could be identified negates the purpose of redaction. Even without the victim’s name, victim impact statements contain highly personal information. The potential disclosure of even a redacted statement could cause victims to censor their statements or refuse to provide them altogether. Moreover, redaction is a highly subjective process. A victim may not trust that sensitive personal information would actually be redacted from the disclosed document. Because redaction will not cure the threat to effective law enforcement, we hold that the PRA does not require disclosure of a redacted victim impact statement.

II. SSOSA Evaluation

A. Investigative Record

¶33 Koenig assumes that a SSOSA evaluation is an investigative record compiled by law enforcement, but he argues that nondisclosure is not essential to effective law enforcement or the protection of any person’s right to privacy. See RCW 42.56.240(1). We agree.

1. Essential to Effective Law Enforcement

¶34 In certain sex offense cases, the sentencing court, either on its own motion or a party’s motion, may order an examination to determine whether the defendant is amenable to treatment. RCW 9.94A.670(3). The subsequent report or evaluation must include the offender’s version of the facts and the official version of the facts, the offender’s offense history, an assessment of problems in addition to alleged deviant behaviors, the offender’s social and employment situation, and other evaluation measures used. RCW 9.94A.670(3)(a). The court considers the evaluation in determining whether the offender and the community will benefit from use of the SSOSA alternative, which requires treatment but allows for a reduced jail term. RCW 9.94A.670(4), (5). The legislature developed this special sentencing provision for first time offenders in an attempt to prevent future crimes and protect society. State v. Young, 125 Wn.2d 688, 693, 888 P.2d 142 (1995).

¶35 Koenig argues that SSOSA evaluations are public because their details are discussed in open court and are not confidential. Koenig also contends that even if defendants choose not to submit to SSOSA evaluations because they are afraid that the details might be made public, this will have no effect on their ultimate prosecution and will not adversely affect law enforcement. Finally, he points out that a defendant submitting a SSOSA has already been found guilty of a sex offense, which is a matter of public record, and that the defendant must register as a sex offender. See RCW 4.24.550; RCW 9A.44.130; RCW 10.97.050(1).

¶36 The county responds that the SSOSA evaluation is an important tool and that the public disclosure of such evaluations will have a chilling effect on a defendant’s willingness to seek such dispositions, which will, in turn, have a detrimental effect on effective law enforcement.

¶37 Additionally, several practitioners, including a sex offender treatment specialist, a prosecutor, and a criminal defense lawyer submitted declarations expressing concern that public disclosure would discourage defendants from participating in evaluations, plea bargaining, and sentencing. The treatment specialist noted that a SSOSA evaluation includes sensitive information — including the defendant’s history of past sexual abuse as perpetrator or victim, and his arousal response to various sexual activities — and that public disclosure of this information would make the evaluator’s job “extremely difficult if not impossible to do.” CP at 103. According to the defense lawyer, fewer offenders will pursue the SSOSA alternative for fear that employers, ex-family members, or the public would obtain this extremely personal information.

¶38 First, we note that a sex offense conviction is a matter of public record and that sex offender registration is required. RCW 9A.44.130;⁸ RCW 10.97.050(1). These facts alone do not tell us whether the public disclosure of a SSOSA evaluation, and all that it entails, would harm effective law enforcement. We do not, however, find the arguments against disclosure persuasive. Concerns about the defendant’s willingness to engage in the SSOSA process must be balanced against the public’s right to full access concerning the workings of government.

¶39 Members of the public have a direct interest in disclosure. While SSOSA defendants may not wish for the details of their evaluation to be made public, those details are of great interest to the public at large in understanding the result in the sentencing decision. The same details are of even greater interest to adults who are concerned about protecting their family members from the offender upon release into the community.

¶40 The legislature specifically addressed this concern by enacting a statute that addresses the release of information about sex offenders to the public. See RCW 4.24.550.⁹ The legislature noted that “sex offenders pose a high risk [of reoffense]” and stated that registration and disclosure of registration information provides communities an opportunity to “develop constructive plans to prepare themselves and their children for the offender’s release” and to “provide education and counseling to their children.” RCW 4.24.550; Laws of 1994, ch. 129, § 1; Laws of 1990, ch. 3, § 116. Allowing for public disclosure of SSOSA evaluations would enable parents to better prepare and educate their children regarding the release of an offender to their community.

¶41 We are also mindful of the strong incentive that defendants have to enter the SSOSA program regardless of disclosure. Qualifying offenders may receive a sentence or minimum term of sentence within the standard range and the sentence imposed may be suspended if it is less than 11 years in duration. RCW 9.94A.670(4). Offenders whose sentences are suspended serve a maximum of 12 months in jail if they comply with the sentencing court’s conditions and no aggravating circumstances are present. RCW 9.94A.670(5)(a).¹⁰ In addition, we find the argument that defendants will be unwilling to participate to be less compelling in the case of SSOSAs than in the case of victim impact statements. A victim impact statement is the personal intimate statement of a victim who has been terribly wronged. A SSOSA evaluation primarily concerns the defendant and the defendant’s actions. While it may include details of the defendant’s crime, the fact of at least one of these crimes has already been disclosed by the charges and the defendant’s plea.

¶42 We also do not believe that victims will decline to report crimes or to cooperate in the investigation and trial based solely on the knowledge that the defendant may eventually admit the details of his crimes in a document that may become public. Nor are we persuaded that victims would generally be aware of SSOSA evaluations such that the possible risk of their eventual public disclosure would discourage victims from participating in the prosecution of crimes.

¶43 The county has not demonstrated that the public’s interest in effective law enforcement, including an interest in effective plea negotiation and community safety, will be substantially harmed by the disclosure of these public records. We believe that the benefits that sex offenders gain from submitting to a SSOSA evaluation, including both sentencing and rehabilitation opportunities, will far outweigh any reluctance to have their information made public where the public is already aware of their conviction for a sex offense. In sum, we find that the PRA’s law enforcement exemption does not prevent disclosure of Lerud’s SSOSA evaluation.

2. Essential To Protecting an Individual’s Right to Privacy

¶44 An investigative record may also be exempt under the PRAif nondisclosure is essential to protect any person’s right to privacy. RCW 42.56.240(1). Under the PRA, “[a] person’s ‘right to privacy’... is invaded or violated only if disclosure of information about the person: (1) Would be highly offensive to a reasonable person, and (2) is not of legitimate concern to the public.” RCW 42.56.050. As the statutory language makes clear, we must be mindful not only of the privacy rights of the offender, but also the privacy rights of other individuals named in requested documents, such as victims or their family members. See RCW 42.56.050.

¶45 With regard to an offender’s privacy rights in his SSOSA evaluation, the parties assume, and we agree, that the release of information describing a sex crime committed by the offender would be highly offensive to a reasonable person. However, as discussed in detail above, we believe that the public has a legitimate interest in obtaining information about a sex offender in a SSOSA evaluation in order to understand the sentencing decision and to guard against a particular offender’s risks to the community. This legitimate interest is also reasonable when balanced against the efficient administration of government. Dawson, 120 Wn.2d at 798. Again, we do not find that disclosure will substantially harm the government’s prosecutorial function. It is unreasonable for Lerud and other sex offenders to expect confidentiality for information that they reveal during a SSOSA evaluation in order to seek a favorable sentence, and we find that their privacy rights are not violated by disclosing this information.

¶46 In contrast, we find that information in a SSOSA evaluation that identifies victims is exempt from disclosure because nondisclosure of such information is essential to protect victims’ privacy rights. Disclosure of information that identifies a victim of a sex offense would be highly offensive to a reasonable person in the victim’s position, and the public has no legitimate interest in this information. In Brouillet, our State Supreme Court noted that, while the public has a legitimate interest in information about the “extent of known sexual misconduct in the schools, its nature, and the way the school system responds in order to address the problem [,] ... there may be no legitimate public interest” in the release of information identifying the victims of such misconduct. 114 Wn.2d at 798. Although the issue of victim privacy was not squarely before the Brouillet court, we agree that the PRA protects victims’ identifying information from disclosure. The public has a legitimate interest in understanding and addressing the threat of sexual abuse by sex offenders, but the public lacks a legitimate interest in learning a victim’s name or identifying information.

¶47 Thus, we hold that portions of a SSOSA evaluation that disclose a victim’s identity are exempt from disclosure, while portions that do not identify victims are not.¹¹ We find that these privacy protections extend to all of the offender’s victims whose names or other identifying information appear in the SSOSA evaluations, not just the victim of the crime for which the State prosecuted the offender. Thus, we conclude that the PRA requires the disclosure of SSOSA evaluations that are appropriately redacted to exclude information identifying the victim of the charged crime, other victims named in the evaluation, and, where appropriate, the victims’ family members, friends, innocent bystanders, and any other nonexpert or non-law-enforcement witness.

3. Health Care Information

¶48 On appeal, the county asserts for the first time that a SSOSA evaluation constitutes “health care information” that may not be disclosed to the public without the defendant’s consent under former RCW 70.02.050.¹² The Rules of Appellate Procedure allow appellate courts to refuse to review “any claim of error which was not raised in the trial court.” RAP 2.5(a). A party may present a ground for affirming a trial court decision which was not presented to the trial court if the record has been sufficiently developed to fairly consider the ground. RAP 2.5(a). We find that the record on appeal is not sufficiently developed to consider the county’s new argument. Accordingly, we do not address the county’s claim that SSOSA evaluations constitute “health care information” that is protected from disclosure by former RCW 70.02.050.

B. Availability of In Camera Review

¶49 Koenig asserts a right to in camera review of the documents under RCW 42.56.550(3). Under the statute, he may ask a trial court to review the redactions to determine if the redactions are appropriate. Whether in camera review is necessary is left to the trial court’s discretion. Harris v. Pierce County, 84 Wn. App. 222, 235, 928 P.2d 1111 (1996). As Koenig has not yet received the requested SSOSA evaluation or had an opportunity to review the redactions, we leave the determination of whether in camera review is necessary for a trial court to review at a later date.

III. Attorney Fees and Statutory Penalties

¶50 A party who “prevails against an agency” in a PRA action is entitled to reasonable attorney fees and costs on appeal. See RCW 42.56.550(4); Progressive Animal Welfare Soc’y v. Univ. of Wash., 114 Wn.2d 677, 690, 790 P.2d 604 (1990) (PAWS I) (attorney fees on appeal are recoverable under the PRA); RAP 18.1. Whether a party prevails is a “legal question of whether the records should have been disclosed on request.” Lindeman v. Kelso Sch. Dist. No. 458, 162 Wn.2d 196, 204, 172 P.3d 329 (2007) (quoting Spokane Research & Def. Fund v. City of Spokane, 155 Wn.2d 89, 103, 117 P.3d 1117 (2005)). A party who wins disclosure of some, but not all, information sought is a “prevailing party” for purposes of awarding attorney fees and costs under the PRA. Tacoma Pub. Library v. Woessner, 90 Wn. App. 205, 951 P.2d 357 (1998), amended on recons., 972 P.2d 932 (1999) (citing PAWS I, 114 Wn.2d at 684). Because Koenig prevailed against the County with respect to disclosure of Lerud’s SSOSA evaluation, he is entitled to reasonable attorney fees and costs for his efforts on appeal to secure disclosure of the SSOSA evaluation. Under RAP 18.1(i), we remand to the trial court to determine the proper amount of attorney fees.

¶51 Similarly, the trial court must assess a mandatory monetary penalty against the county for each day that it withheld the SSOSA evaluation. RCW 42.56.550(4); see Yousoufian v. Office of King County Executive, 152 Wn.2d 421, 437, 98 P.3d 463 (2004). We lack discretion to limit this penalty even when the case at hand raises “ ‘compelling, but conflicting, public policy considerations’ ” that required our adjudication. Koenig, 158 Wn.2d at 188 (holding that once the court determines that a requester is entitled to inspect records, the court is required to assess a penalty) (quoting Clerk’s Papers at 172-73). We also lack discretion to limit the daily fines based on the county’s compliance with a court order sealing the victim impact statement and SSOSA evaluation. See Koenig, 158 Wn.2d at 188 (rejecting the agency’s argument that it was not liable for penalties during the time that the agency complied with an injunction barring the disclosure of the disputed records).

¶52 Accordingly, we remand so that the trial court may determine the penalties to which Koenig is entitled under RCW 42.56.550(4).

¶53 Affirmed in part, reversed in part, and remanded for disclosure and redaction of the SSOSA evaluation and for a determination of penalties and attorney fees.

1 Throughout this opinion, we apply the provisions of the Public Disclosure Act (PDA), former chapter 42.17 RCW, that were in effect on August 17,2000, the date of Koenig’s PRA request. In 2005, the legislature amended the PDA, renaming it the Public Records Act and recodifying it at chapter 42.56 RCW. Laws of 2005, ch. 274. For ease of reference, we cite to the PRA’s current statutory provisions, which do not differ in substance from the former PDA provisions.

2 Lerud’s SSOSA disposition is governed by the statute in effect at the time of his February 2000 crimes. See former RCW 9.94A.120(8) (Laws of 1999, ch. 324, § 2), recodified as RCW 9.94A.670. For ease of reference, we cite throughout this opinion to the current SSOSA statute. Unless otherwise noted, the provisions of RCW 9.94A.670 that we cite do not differ in substance from former RCW 9.94A. 120(8).

3 State v. Lerud, No. 00-1-00336-0 (Thurston County Super. Ct., Wash. Feb. 26, 2008).

4 The trial court did not address the effect of the order to seal on Koenig’s public records request, and the parties stipulated that the order was not dispositive of that request.

5 RCW 9.94A.500(1) provides that a court “shall consider the . . . presentence reports, if any, including any victim impact statement” in making a sentencing decision.

6 The exhibits that Koenig submitted with his summary judgment motion primarily consist of information about the Lerud case and communications between Koenig and Thurston County. Koenig also submitted several exhibits with his reply on motion for summary judgment, together with a declaration by an attorney who assisted Koenig’s counsel in this case. These materials challenge the efficacy of sex-offender modalities like SSOSA, but they do not address the role that victim impact statements play in the sentencing process.

7 111 Wn. App. at 509-10.

8 The legislature’s numerous amendments to RCW 9A.44.130 since Lerud’s 2000 conviction do not impact our analysis.

9 An earlier version of this statute was in effect at the time of Lerud’s crime. See Laws of 1998, ch. 220, § 6.

10 Although it does not affect our analysis, we note that former RCW 9.94A. 120(8) did not require the court to impose a term of confinement as a condition of the suspended sentence.

11 Depending on the circumstances, the identity of nonvictim third parties might also be exempt from disclosure. We leave this fact-specific inquiry for the trial court to address during the redaction process.

12 Laws of 1998, ch. 158, § 1.