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RSO Records: Confidential, maybe, but are they exempt from disclosure?

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Presentation on theme: "RSO Records: Confidential, maybe, but are they exempt from disclosure?"— Presentation transcript:

1 RSO Records: Confidential, maybe, but are they exempt from disclosure?

2  RCW 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.

3  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 (2),(3)

4  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 / s  Psycho-sexual evaluations

5  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

6  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.

7  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.

8  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)

9  RCW – 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..

10  (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.

11  Agency may exempt a record by citing to a statute outside the PRA  Attorney / Client communications and work product  Medical records RCW ◦ 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.

12  Records of a person confined in Jail (RCW )  Records of a person confined in prison  Triple I (RCW 10.97)

13  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)

14  Is RCW “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 (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)

15  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)

16  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

17  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

18  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

19  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

20  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

21  Since 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)

22  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 RCW  “Except as provided in RCW , 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 (5)

23  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 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.

24  IF juvenile “records” are entirely exempt from the PDA, then decisions about release of juvenile sex offender registration records would be made: ◦ Under RCW , AND ◦ Chapter 13.50, ◦ Chapter 10.97’s specific provisions regarding victim civil redress ◦ Not the PDA

25  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, ◦ The Juvenile Records Act, ◦ Civil Redress statutes for victims (10.97 and 13.50) ◦ Community Notification Act ( ) ◦ 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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