RSO presentation

Report
RSO Records: Confidential, maybe, but are
they exempt from disclosure?
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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.
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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)
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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
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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
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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.
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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.
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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)
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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..
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(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.
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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.
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Records of a person confined in Jail (RCW
70.48.100)
Records of a person confined in prison
Triple I (RCW 10.97)
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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)
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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.
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◦ In Re Restraint of Meyer, 142, Wn.2d 608 (2001)
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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)
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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
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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
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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
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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
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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
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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)
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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)
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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.
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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
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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:
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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)

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