Oct 10

Stewart Estes

Stew Estes, "Washington Court Endorses Third Party Notification in Public Records Act Suit"

by Stewart Estes

Today, the Washington Court of Appeals upheld a county’s response to a Public Records Act (PRA) request that effected the rights of third-party sex offenders. Doe v. Benton County, No. 34519-0-III, (Ct. App. WA 2017). The case dates back to Donna Zink’s 2013 and 2014 series of requests to the County under the PRA, chapter 42.56 RCW (then Ch. 42.17 RCW). Ms. Zink sought documents pertaining to Level I registered sex offenders (Level 3 is the highest). As public records aficionados know, Ms. Zink made a name for herself in her long running PRA series of suits against the City of Mesa, where she had been mayor, that resulted in six appellate opinions.

In today’s lawsuit, Ms. Zink and her husband had sought the sex offender information from Benton and other counties in order to post the names of all level one sex offenders living in that area. Benton County, as had other agencies, notified the "third party" sex offenders of the potential release of their names and information in case they wished to challenge the decision. They did. The ACLU filed a class action lawsuit to stop the release, and the King County Superior Court agreed and prevented the disclosure. They Zinks appealed.

In an earlier case, Ms. Zink had requested these same records from the Washington State Patrol (WSP). The King County Superior Court granted the John Does' motion and barred release, stating that Level I sex offender registration records are exempt from disclosure under the PRA because the community notification statute “provides the exclusive mechanism for public disclosure of sex offender registration records.” In April of last year, our Supreme Court rejected the technical confidentiality arguments made by the sex offenders holding that nothing in that statute “indicates a legislative intent to protect level I sex offenders….” Doe ex rel. Roe v. Washington State Patrol, 185 Wn.2d 363, 378, 374 P.3d 63 (2016). For those pining for a full and exhilarating discussion of the “other statute” analysis, I direct you to the opinion. After her victory, Ms. Zink posted over 20,000 sex offenders’ names on line.

Today’s question is what to do with a county’s action to not disclose records that the Supreme Court has said must be disclosed? The answer was guided by the fact that the County took its stance a year before the Supreme Court held that these exact records must be disclosed. The issue is a government agency’s legislatively-created safe harbor, known as “third party notification.” This procedure allows an agency to decide that even if it thinks the records must be disclosed, the person whose ox is being gored (mentioned in the records) may have a different opinion and a right to sue to stop that. Caught between Scylla and Charybdis, Benton County punted to the third party. The sex offenders were notified, strongly disagreed with the County’s decision that the records were not exempt, and sued to stop it. The Supreme Court ruled after the Benton County lawsuit was filed.

The Zinks argued that the County should be punished for its decision to allow the offenders to have their day in court. As we know, an agency that withholds records improperly can be assessed a healthy daily fine plus attorney’s fees. The Zinks argued that the County improperly “withheld” the records while it notified the affected individuals. But, the Court held that the County never denied them the right to any record. “The County never claimed an exemption, refused to produce the records, or otherwise engaged in final action denying access to the records. Rather, it simply took additional time to notify John Doe about the request, which RCW 42.56.520 expressly authorizes.”

The Zinks also argued that the County violated the PRA because it did not claim an exemption or provide an exemption log. The Court rejected this as well. “But neither the statute nor the [Attorney General’s] model rules require or advise this. Moreover, such a requirement would be inconsistent with the policy underlying third party notice, which is to give the third party a chance to assert an exemption when the agency does not believe the records are exempt and will not claim a potential exemption on the third party's behalf.” The court lastly rejected the Zinks argument that their contact information should not have been released. How else does a third party sue to prevent the release?

These holdings are important to Public records Officers as they reinforce an agency’s right to take extra time to respond to a PRA request by sending out third party notification of its impending decision to release records that may affect those persons’ rights. You can sleep (relatively) safe doing so. Just don’t wait too long for the third party to act, or you may be sorry. See, Wade's Eastside Gun Shop, Inc. v. Dep't of Labor & Indus., 185 Wn.2d 270, 294, 372 P.3d 97, 107 (2016) (penalty for agency that could not “explain why it failed to release all records when no [third party] noted a motion for temporary or injunctive relief”).


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