Filed Washington State Court of Appeals Division Two

March 30, 2021 IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

DIVISION II JOHN DOE 1-15, No. 52845-2-II

Appellants, v. COWLITZ COUNTY SHERIFF’S OFFICE, UNPUBLISHED OPINION

Respondent.

WORSWICK, J. — John Doe 1-15 sued to enjoin the release of their level one sex offender records under the Public Records Act (PRA). Chapter 42.56 RCW. The John Does argued that

the requested records were exempt from disclosure as being specific intelligence information or specific investigative information, the release of which would violate their privacy rights, and that the records were not in the public interest and the record release would irreparably damage them. The trial court determined that no exemption applied and ordered that the records be released, but stayed its order and certified interlocutory appeal. We hold that no PRA exemption applies. Consequently, we affirm.

FACTS

John Doe 1-15 are level one sex offenders.^[1] Curtis Hart submitted a public records request to the Cowlitz County Sheriff’s Office (CCSO) seeking level one sex offender records No. 52845-2-II

Hart’s motivations for obtaining the requested records when determining whether the requested records are exempt from disclosure under the PRA.

The John Does included affidavits and exhibits claiming that Hart had a history of engaging in harassment and was a member of the self-styled “Punisher Squad,” which described itself on social media as “a group of concerned citizens (Radical Child Advocates) that bring sexual predators to light.” Clerk’s Papers (CP) at 8. They boast that they “publicly shame [sex offenders] for sport.” CP at 8. Hart had previously been restrained under a lifetime no contact order due to his harassing behavior against a person whom he believed was a child sexual predator.

The CCSO responded that, as a law enforcement agency, they were in the best position to determine whether the records were covered by the investigative records exemption, and that this exemption did not apply because the records were not investigatory in nature from their perspective. The CCSO stated that because the nondisclosure of information sought by the John

Does was not “essential to effective law enforcement,” it did not meet the exemption for specific intelligence information. Verbatim Report of Proceedings at 26.

The court found that (1) Hart was “likely to misuse the information in childish, immature, and offensive ways that would likely be harmful” to the John Does, (2) Hart was likely to repeat the conduct that gave rise to his lifetime order of no contact for harassment if the requested records were released, and (3) the John Does had credible and understandable fear of Hart. CP at

73. Notwithstanding those findings, the court concluded that no exemption applied to the requested records, and “absent some additional legal authority[,] [the court had] insufficient guidance as how to consider the motivation of the requester” to enjoin the release of the No. 52845-2-II

requested records under RCW 42.56.540. CP at 74. The trial court denied injunctive relief, certified its order for interlocutory appeal under RAP 2.4, and stayed its order pending resolution of the appeal.^[6]

The John Does appeal the trial court’s order denying their injunctive relief.

ANALYSIS

The John Does argue that the trial court erred by not enjoining release of the requested records. They argue that the specific investigative or intelligence information records exemption, RCW 42.56.240, applies to their case because level one sex offender information is

intelligence information and nondisclosure is necessary to protect their right to privacy. The John Does also argue that the trial court erred by not considering Hart’s motivations for his PRA

request in determining whether the exemption applied. The John Does argue that the release of the requested information violates their right to privacy because it would cause substantial and irreparable damage and would not clearly be in the public interest. The John Does also argue that, in addition to injunctive relief under the PRA, they are entitled to injunctive relief under CR

65.7

The CCSO argues that level one sex offender records are not investigative records under the PRA because they are not investigative in nature and do not violate the John Does’ rights to privacy. The CCSO argues that it was forbidden from considering Hart’s motivations when it determined whether to release the requested information, but that it takes no position on the No. 52845-2-II

court’s prerogative to inquire upon Hart’s motivations when determining whether to enjoin the records under the PRA.

We agree with the CCSO and hold that the trial court did not err when it denied the John

Does’ motion for injunctive relief because no exemption to the PRA applies. Accordingly, we affirm.

I. LEGAL PRINCIPLES

The PRA “is a strongly-worded mandate for broad disclosure of public records.” Hearst

Corp. v. Hoppe, 90 Wn.2d 123, 127, 580 P.2d 246 (1978). Unless a specific PRA exemption exists or other statutory exemption applies, the PRA requires agencies to produce all public records upon request. RCW 42.56.070(1); Gendler v. Batiste, 174 Wn.2d 244, 251, 274 P.3d

346 (2012). The PRA’s disclosure provisions must be liberally construed and its exemptions narrowly construed. RCW 42.56.030. “The language of the PRA must be interpreted in a manner that furthers the PRA’s goal of ensuring that the public remains informed so that it may

maintain control over its government.” Wade’s Eastside Gun Shop, Inc. v. Dep’t of Labor & Indus., 185 Wn.2d 270, 277, 372 P.3d 97 (2016).

The PRA contains exemptions to disclosure. The exemption at issue here under RCW

42.56.240(1) is “specific intelligence information and specific investigative records” compiled by 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.” The party seeking to

enjoin or withhold the release of records under the PRA bears the burden of proof that the requested information falls within the scope of an exemption. Robbins, Geller, Rudman & Dowd, LLP v. State, 179 Wn. App. 711, 719, 328 P.3d 905 (2014).

No. 52845-2-II

We review de novo whether requested records are exempt from disclosure under the PRA. Washington Pub. Employees Ass’n v. Washington State Ctr. for Childhood Deafness & Hearing Loss, 194 Wn.2d 484, 493, 450 P.3d 601 (2019); RCW 42.56.550(3). However, we

review the trial court’s ultimate decision whether to grant injunctive relief for an abuse of discretion. Washington Pub. Employees Ass’n, 194 Wn.2d at 493.

A. Standard for Injunctive Relief for PRA Request

As an initial matter, the John Does cite CR 65 as a standard for granting relief in a PRA request case. We hold that CR 65 does not apply here and instead review the case under the PRA standards.

CR 65 allows a trial court to grant an injunction when (1) the plaintiff has a clear legal or equitable right, (2) the plaintiff has a well-grounded fear of immediate invasion of that right, and (3) the acts complained of are either resulting in or will result in actual and substantial injury to the party. Lyft, Inc. v. City of Seattle, 190 Wn.2d 769, 784, 418 P.3d 102 (2018).

The PRA has a different standard, which includes consideration of both public and private interests. Under RCW 42.56.540, a trial court can grant injunctive relief when it finds that examination of records “would clearly not be in the public interest and would substantially and irreparably damage any person, or would substantially and irreparably damage vital governmental functions.” The PRA standard governs whether exempt records under the PRA

can be withheld from disclosure, not CR 65. See Lyft, 190 Wn.2d at 785. Consequently, the PRA injunction standard applies to this case.

Whether to grant injunctive relief under the PRA is a two-step inquiry. King Cnty. Dep’t. of Adult and Juv. Det. v. Parmelee, 162 Wn. App. 337, 350-51, 254 P.3d 927 (2011). “First, the No. 52845-2-II court must determine whether the records are exempt under the PRA or an ‘other statute’ that provides an exemption in the individual case. Second, it must determine whether the PRA injunction standard is met.” Lyft, 190 Wn.2d at 790. When analyzing the first step—whether an exemption applies—trial courts are generally constrained from consideration of a requestor’s motive or intent. DeLong v. Parmelee, 157 Wn. App. 119, 151-52, 236 P.3d 936 (2010) (holding that prison inmates, including those blatantly abusing the PRA, have standing to request records

under the PRA, but that the trial court did not err in granting injunctive relief), review granted, 171 Wn.2d 1004, on remand, 164 Wn. App. 781 (2011).8

That an exemption applies under the PRA does not ipso facto support issuing an injunction. Lyft, 190 Wn.2d at 786. If one of the PRA’s exemptions apply, then a court can enjoin the release of the public record only if disclosure “would clearly not be in the public interest and would substantially and irreparably damage any person, or . . . vital governmental functions.” Lyft, 190 Wn.2d at 791(quoting RCW 42.56.540).

B. Specific Investigative or Intelligence Exemption Does Not Apply

The John Does argue that the specific investigative or intelligence information records

exemption under RCW 42.56.240(1) applies to their level one sex offender records. Specifically, the John Does argue that these records constitute “specific intelligence information” within the meaning of the PRA. Br. of App. at 5.

No. 52845-2-II

On appeal, the John Does do not argue that these records constitute investigatory records as they did at the trial court. The CCSO does not address in its brief whether the requested records constitute “specific intelligence information” under the PRA, but they argue that they are not investigatory in nature because the John Does have been fully adjudicated for their crimes.

Because the John Does argue only that the exemption applies because their level one sex offender records are “specific intelligence information,” we address only this issue. We disagree with the John Does and hold that this exemption does not apply.

Under RCW 42.56.240(1), specific intelligence information records may be exempt from production. To be within the scope of this exemption, the record must be (1) specific information that is intelligence or investigative in nature; (2) compiled by an investigative, law

enforcement, or penological agency; and (3) essential to law enforcement or the protection of privacy. RCW 42.56.240(1); West v. City of Tacoma, 12 Wn. App.2d 45, 71, 456 P.3d 894

(2020).

1. Not Specific Intelligence Information

The John Does argue that under King Cnty. v. Sheehan, 114 Wn. App. 325, 57 P.3d 307

(2002), the level one sex offender information sought by Hart is “intelligence information”

because it is “compiled specifically to identify and monitor a specific group of people.” Br. of App. at 6. We disagree.

In West v. City of Tacoma, we narrowly defined “intelligence information” as “gathering or distributing secret information, information about an enemy, or conclusions drawn from such information.” 12 Wn. App.2d at 73. We, however, further held that the adjective “specific” modifying “intelligent information” creates an even narrower interpretation of the exemption.

No. 52845-2-II

Id. We have defined “specific” as “disclosing particular methods or procedures, or gathering or analyzing intelligence information.” Id.

In West, West made a PRA request to the City of Tacoma for records regarding cell site simulator (CSS) technology.^[9] West, 12 Wn. App.2d at 51. The City provided West with those records but redacted the make and model names under an erroneous interpretation of the specific intelligence information exemption. Id. at 76. The superior court agreed with the City, and we reversed in favor of West, reasoning that the redacted information would only reveal the “what” but not the “when or how” the technology was used, and therefore was not “specific” because it did not reveal any particular investigative technique. Id. at 74.

Here, Hart requested blanket disclosure of the biographical information and descriptions of offense summaries for level one sex offenders that the sheriff collects under RCW

9A.44.130.10 Although that information may arguably be “intelligence information,” it is not No. 52845-2-II

“specific” as we held in West. These records do not reveal any particularly secret information, conclusions, methods, techniques, or analysis, and so, they do not constitute “specific intelligence information” under the Section 240 exemption. Because the public records here are not “specific intelligence information” and are therefore not exempt, we need not decide if

“nondisclosure . . . is essential . . . for the protection of any person’s right to privacy.” RCW

42.56.240(1).

We recognize that the findings made by the trial court acknowledged there is a risk that

the release of this nonexempt information may increase the likelihood of an invasion into the John Does’ private lives. The John Does also present a cogent and persuasive policy argument

against the broad release of this type of information on the grounds that it would frustrate the safety and rehabilitation of sex offenders.^[11] However, our Supreme Court has held that even though “the misuse of personal information is an important policy objective, we must recognize that the PRA embodies a critical public policy in its own right. . . . [W]e must exercise judicial restraint and leave it to the legislative branch to consider how best to address the growing concerns about public records being misused for improper or criminal purposes.” Washington

Pub. Employees Ass’n, 194 Wn.2d at 501.

No. 52845-2-II

In conclusion, the trial court did not err when it denied injunctive relief to the John Does

because the specific intelligence information exemption under the PRA does not apply to the level one sex offender records in this case. We affirm.

A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record in accordance with RCW

2.06.040, it is so ordered.

___________________________ Worswick, J. We concur: ______________________________ Lee, C.J. ______________________________ Veljacic, J.