Public Records Act RSO Records: Confidential, maybe, but are they exempt from disclosure?
Public Records Act Overview • RCW 42.56.010 et al • Passed in 1972 • All records of a public agency are presumed to be subject to disclosure • Public records must be disclosed unless an exemption applies • Exemptions to disclosure are to be construed narrowly • The agency has the burden to prove that the record is exempt • Agencies may withhold only those portions of the document that fall within the exemption • Agencies are liable for not giving the fullest assistance to requestors and/or unreasonably exempting records.
What is a public record? • ANY writing containing information relating to the conduct of government or the performance of any governmental function, • Prepared, owned, used or retained by any state or local agency, • Regardless of physical form or characteristics… • “Writing” means handwriting, printing, photographing…letters, words, pictures, sound and video recordings… • RCW 42.56.010(2),(3)
Public Records in a RSO file • Investigating agency reports, PC statements (local, state, federal agencies) • Triple I – criminal history • Court documents: charging and sentencing • Registration documents • Risk level assessments • Sex offender contact sheets • Correspondence / emails • Psycho-sexual evaluations
More records in RSO file.. • Indeterminate Sentence Review Board hearings and findings. • Sex Offender treatment plans • Polygraph report • Victim statements • DOC custody facility plan • Bulletin: Notification of Sex Offender Release
What is a “Request” for public records? • The request may be in writing, on a form, or made orally. • Requestor does not have to cite to the PRA and label it as a “public disclosure request.” • May be made to any employee of the public agency – that includes you. • May be buried in correspondence. • Agency must respond within 5 days of request.
Does the identity of the Requestor matter? • Generally, agencies may not distinguish between requesters under the PDA. • A requestor may remain anonymous. • If requestor is the victim or offender, he or she may be able to obtain records that would be exempt otherwise. • Cannot exempt a document from disclosure on the basis of privacy when it is the requestor’s privacy at issue.
Not all requests for records are pursuant to the PRA • Caution! Do not convert requests, examples below, not under the PRA to a PRA request. • Attorney requests – for discovery • Therapist requests – for treatment • Other law enforcement agency or CPS – for law enforcement purposes • Victim – for civil redress (RCW 10.97) • Collective bargaining (Mason County, 2012)
Exemptions under the PRA • RCW 42.56.240 – law enforcement investigative records exemption: • (1) specific intelligence information…investigative records…the nondisclosure of which is essential to effective law enforcement or for protection of any person’s right to privacy. • (2) information revealing the identity of witnesses or victims of crime…who file complaints…if disclosure would endanger any person’s life… • (3) records…sex offenses which have been transferred to WASPC for retention..
PRA Exemptions cont. • (5) Information revealing the identity of child victims of sexual assault who are under age eighteen… • (8) Information submitted to the statewide unified sex offender notification and registration program…by a person for the purpose of receiving notification regarding a registered sex offender.
Other Exemptions • Agency may exempt a record by citing to a statute outside the PRA • Attorney / Client communications and work product • Medical records RCW 70.02.050 • Must be health care record, not a forensic evaluation like a psycho-sexual evaluation. • Patient and his immediate family (or close friend) may obtain records • Patient’s healthcare provider may obtain records • May disclose to law enforcement, penal or custodial institutions where the person is confined.
Other Exemptions cont. • Records of a person confined in Jail (RCW 70.48.100) • Records of a person confined in prison • Triple I (RCW 10.97)
SSOSA evaluations are subject to disclosure • Adult sex offenders SSOSA evaluations are subject to disclosure • Victim’s name and identifying information in a SSOSA are exempt and may be redacted • Victim’s impact statements for sentencing are exempt as essential to effective law enforcement and can be withheld entirely • Non-victim third parties identity might be exempt depending on circumstances Koenig v. Thurston County, 155 Wn. App. 398 (2010)
Community Notification Act and the PRA (RCW 4.24.550) • Is RCW 4.24. 550 “another statute” that governs requests for documents instead of the PDA? • Courts have not answered that question for adults • Probably not for adult sex offenders. • It may be for juvenile sex offenders. • RCW 4.24.550(9) provides “nothing in this section implies” that information about registered sex offenders “is confidential except as may be otherwise provided by law.” • Courts have noted that some documents in a sex offender file are publicly available from other sources. Information disclosed is not subject to any specific confidentiality protection. • In Re Restraint of Meyer, 142, Wn.2d 608 (2001)
RCW 4.24.550 allows Proactive release of information • Rationale for proactive release of information: • Conviction records may be disseminated without restriction. • The public has a legitimate interest in information about potentially dangerous individuals. • Sex offenders have a “reduced expectation of privacy” because of the public’s interest in public safety and the effective operation of government. PRO-ACTIVE RELEASE IS BASED ON ASSESSMENT of RISK TO PUBLIC SAFETY In re restraint of Meyer, 142 Wn.2d 608 (2001)
DO LIMITS ON PRO-ACTIVE RELEASE UNDER RCW 4.24.550 ALSO LIMIT RELEASE UNDER THE PDA? • Probably not (for adults) but courts have not addressed that specific question • Current Residential address may be exception for safety of sex offender as essential to effective law enforcement • Individual documents withheld or redacted from a registered sex offender packet need specific exemptions for each document under the PDA in adult cases
RCW 4.24.550 PROACTIVE RELEASE • OVERALL TEST IS WHETHER DISCLOSURE IS RELEVANT AND NECESSARY TO PROTECT THE PUBLIC. Information must be accurate. • RELEASE RATIONALLY RELATED TO: • LEVEL OF RISK • LOCATIONS WHERE OFFENDER RESIDES, EXPECTS TO RESIDE, OR IS REGULARLY FOUND; AND • NEEDS OF AFFECTED COMMUNITY MEMBERS FOR INFORMATION TO ENHANCE THEIR SAFETY
LEVEL 1:RELEASE CONSIDERATIONS • LEVEL 1: AGENCY SHALL SHARE INFORMATION WITH • OTHER APPROPRIATE LAW ENFORCEMENT AGENCIES • SCHOOL OFFENDER IS ATTENDING OR PLANNING TO ATTEND • UPON REQUEST, RELEVANT, NECESSARY, AND ACCURATE INFORMATION TO ANY • VICTIM • WITNESS TO THE OFFENSE • ANY INDIVIDUAL COMMUNITY MEMBER WHO LIVES NEAR THE RESIDENCE WHERE THE OFFENDER • RESIDES • EXPECTS TO RESIDE, OR • IS REGULARLY FOUND
LEVEL 2:RELEASE CONSIDERATIONS • IN ADDITION TO DISCLOSURES FOR LEVEL 1 AGENCIES MAY ALSO RELEASE INFORMATION TO: • PUBLIC AND PRIVATE SCHOOLS • DAY CARES • LIBRARIES • BUSINESS AND ORGANIZATIONS THAT SERVE WOMEN, CHILDREN, AND VULNERABLE ADULTS • NEIGHBORS • COMMUNITY GROUPS NEAR WHERE OFFENDER RESIDES EXPECTS TO RESIDE OR IS REGULARLY FOUND
LEVEL 3: RELEASE CONSIDERATIONS • INFORMATON MAY BE RELEASED TO: • PUBLIC AT LARGE • Agencies must publish a legal notice in a newspaper • Have a website with a list of level 3s updated at least once a month or use Offender Watch • Public dissemination on WASPC website also applies to level 2s, level 1s out of compliance, and kidnappers
RCW 4.24.550 may allow for MORE release of information than PDA • Since 4.24.550 is based on risk to the public, the community notification act may allow for a greater release of information to the public regarding sex offenders than may apply under the PDA. • Agencies have some discretion based on risk assessment • Release of information needs to be based on risk and public safety not punishment • No liability for failure to release (unless make promises about release)
Juvenile Sex Offenders • Juvenile Records Act (JRA) may be “another statute” that removes juvenile records release decisions entirely from the PDA • “All records other than the official juvenile court file are confidential and may be released only as provided in …….. RCW 4.24.550. RCW 13.50.050. • “Except as provided in RCW 4.24.550, information not in a juvenile court file concerning a juvenile or a juvenile’s family may be released to the public only when that information could not be reasonably expected to identify the juvenile or the juvenile’s family.” RCW 13.50.050(5)
State v. Sanchez, (Division I, No. 67461-7-1, publ. July 9, 2012) • Juvenile sex offender challenged release of SSOSA evaluation to Sheriff’s Office. • Division I held SSOSA evaluation had to be given to Sheriff’s office for risk assessment. • Chapter 13.50.050 is “another statute” that provides for protection from release under the PDA and would be protected from release under the PDA. • NOTE – Case is NOT a public disclosure case and is on appeal.
Juvenile Sex Offender Registration Records • IF juvenile “records” are entirely exempt from the PDA, then decisions about release of juvenile sex offender registration records would be made: • Under RCW 4.24.550, AND • Chapter 13.50, • Chapter 10.97’s specific provisions regarding victim civil redress • Not the PDA
Get Legal Advice from your prosecutors or legal advisors • The interaction of the various statutes is complex and there is little case law on their application and intersection • Statutes to consider include for withholding or redacting include: • The Public Records Act, 42.56 • The Juvenile Records Act, 13.50 • Civil Redress statutes for victims (10.97 and 13.50) • Community Notification Act (4.24.550) • End of Sentence Review Board Statutes (72.09) • Miscellaneous (medical records, mental health, etc.) • Rights of victims and child victims (7.69 and 7.69A)