# John Does 1-4 V. King County

> Court of Appeals of Washington · September 7, 2021

URL: https://www.frixlaw.com/law-library/cases/4908701

## Case

- **Court:** Court of Appeals of Washington
- **Decided:** September 7, 2021
- **Precedential status:** Unpublished
- **Opinion:** Opinion
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION ONE

JOHN DOE 1, JOHN DOE 2, JOHN ) No. 81814-7-I
DOE 3, and JOHN DOE 4, )
)
Appellants/Cross Respondents, )
)
v. )
)
KING COUNTY, ) UNPUBLISHED OPINION
)
Respondent, )
)
THE SEATTLE TIMES, )
)
Respondent/Cross Appellant. )

BOWMAN, J. — The Seattle Times made a Public Records Act (PRA),

chapter 42.56 RCW, request for records related to the decision of the King

County Prosecuting Attorney’s Office (KCPAO) declining to file sexual assault

charges against several high school football players. Four of the students

involved in the investigation were juveniles at the time and petitioned to enjoin

release of the records. The trial court allowed the juveniles to pursue their

lawsuit using pseudonyms. The court denied the preliminary injunction and

ordered release of the records, redacted to remove the identities of the juveniles.

The juveniles, identified as John Does 1-4 (the Does), appeal the trial court’s

denial of injunctive relief. The Seattle Times cross appeals the trial court’s

decision to allow the use of pseudonyms. We affirm.

Citations and pin cites are based on the Westlaw online version of the cited material.
No. 81814-7-I/2

FACTS

In April 2018, a 16-year-old girl alleged that several high school football

players sexually assaulted her. The Clyde Hill Police Department (CHPD)

investigated the allegations, and referred nearly identical files for three juveniles

and one adult to KCPAO for potential charges. KCPAO declined to file charges.

In January 2020, the Seattle Times made public disclosure requests to

KCPAO and CHPD. It asked for “all written, electronic and digital records

pertaining to the decision not to bring forth criminal charges in relation to a spring

2018 sexual assault case involving current and former members of the . . . High

School Football team.” The request included “any correspondence between

[KCPAO] representatives and police and school officials pertaining to the matter,”

and asked for correspondence between KCPAO and the “parents/guardians or

legal representatives/lawyers for players involved.” The Seattle Times later

clarified that it was not seeking information related to the juvenile referrals.

KCPAO compiled 2,177 pages of records responsive to the Seattle Times’

request. The pages consist mainly of the CHPD investigative file for the adult

suspect and external communications with police, school officials, and parents or

legal representatives for the players “relating to the [KC]PAO’s decision” against

filing charges. KCPAO proposed several redactions to the records. It redacted

identifying information of the victim, suspects, witnesses who requested to

remain anonymous, and parties in an unrelated case. It also redacted social

security numbers and KCPAO’s work product from the records.

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No. 81814-7-I/3

KCPAO notified the adult and juvenile suspects that it intended to release

the records to the Seattle Times, and sent them the redacted records. The Does

sued King County, the Seattle Times, CHPD, and the Palo Alto Daily Post,1

seeking to prevent release of the records. Because they were juveniles, the

Does used pseudonyms in place of their names in the pleadings. John Doe 1

was a juvenile witness, and John Does 2-4 were juvenile suspects. While the

adult suspect was not a party to the Does’ lawsuit, they identified him in the

complaint as John Doe 5. The Does moved for and the court granted a

temporary restraining order barring release of the records.

The Does then petitioned for a preliminary injunction and declaratory

judgment that the records were categorically exempt from disclosure. The Does

also moved for permission to continue using pseudonyms to protect their privacy.

The trial court reviewed in camera both the unredacted records and the proposed

redactions. The court concluded that the records were not “wholly exempt from

disclosure.” Specifically, that the records “for possible charges against an adult

are not categorically exempt” under chapter 13.50 RCW, protecting juveniles’

privacy; that the records are not categorically exempt under the Washington

State Criminal Records Privacy Act, chapter 10.97 RCW; and that the records

are not wholly exempt under the PRA because the public has a legitimate

interest in the investigation. The court denied the preliminary injunction and

approved the KCPAO’s redactions for release of the records.

1 CHPD also received a PRA request from the Palo Alto Daily Post.

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No. 81814-7-I/4

The Does moved for discretionary review in this court. A few days later,

the parties entered a stipulated order to dismiss defendants CHPD and Palo Alto

Daily Post without prejudice. The Does’ case then became appealable as a

matter of right. We issued a temporary injunction preventing release of the

records pending appeal.

More than two weeks after denying the petition for preliminary injunction,

the trial court granted the Does’ motion to proceed under pseudonym. The

Seattle Times then moved for direct review of that decision by the Washington

Supreme Court. The Supreme Court combined the matter with the Does’

pending appeal and designated the Seattle Times as a cross appellant, but

denied review and transferred the case to this court. The Washington Coalition

for Open Government and the Washington Defender Association each requested

and received permission to file amici curiae briefs with this court.2

ANALYSIS

PRA Exemptions

The Does argue that the trial court erred in concluding no PRA exemption

applied to the release of John Doe 5’s adult investigation records. According to

the Does, the records should be categorically exempt from disclosure because

they are nearly identical to their juvenile records protected under chapter 13.50

2 Amicus the Washington Defender Association supports the Does’ broad application of
the chapter 13.50 RCW protection of juvenile records because “young people in King County may
find the privacy protections promised by the Legislature eviscerated any time their information
finds its way into an adult investigative file.” In contrast, amicus the Washington Coalition for
Open Government emphasizes the PRA’s mandate for broad public disclosure of public records,
and argues the adult records at issue in this case are not protected as juvenile records or
investigative records that would violate the Does’ right to privacy.

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No. 81814-7-I/5

RCW. In the alternative, they argue that the file is exempt as an investigative

record under RCW 42.56.240(1). We disagree.

“The PRA is a ‘strongly worded mandate for broad disclosure of public

records.’ ” Cornu-Labat v. Hosp. Dist. No. 2 Grant County, 177 Wn.2d 221, 229,

298 P.3d 741 (2013) (quoting Hearst Corp. v. Hoppe, 90 Wn.2d 123, 127, 580

P.2d 246 (1978)). The act compels state and local agencies to disclose public

records responsive to requests unless a specific exemption applies. RCW

42.56.070(1); Cornu-Labat, 177 Wn.2d at 229. In keeping with its mandate, the

PRA’s disclosure provisions must be “ ‘liberally construed and its exemptions

narrowly construed.’ ” Cornu-Labat, 177 Wn.2d at 229 (quoting RCW

42.56.030).

Under the PRA, a party may seek to enjoin release of public records if

“examination 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.” RCW 42.56.540. But “[c]ourts shall take

into account the policy of [the PRA] that free and open examination of public

records is in the public interest, even though such examination may cause

inconvenience or embarrassment to public officials or others.” RCW

42.56.550(3).

In considering whether to enjoin disclosure of records, a trial court must

conduct two separate inquiries. Lyft, Inc. v. City of Seattle, 190 Wn.2d 769, 789-

90, 418 P.3d 102 (2018). First, the court must determine if the records at issue

are exempt under a provision of the PRA. Lyft, 190 Wn.2d at 790. If a PRA

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No. 81814-7-I/6

exemption applies, the court then looks to whether disclosure is against public

interest and would cause substantial and irreparable damage. Lyft, 190 Wn.2d at

791 (citing RCW 42.56.540). The trial court must find both inquiries are satisfied

before issuing an injunction. Lyft, 190 Wn.2d at 791. The party seeking an

injunction has the burden of proof. Lyft, 190 Wn.2d at 791. We review de novo

the issuance of an injunction under the PRA. RCW 42.56.550(3); Lyft, 190

Wn.2d at 791.

A. Juvenile Records

Despite the PRA’s liberal construction in favor of release, its “mandate for

broad disclosure is not absolute.” Resident Action Council v. Seattle Hous.

Auth., 177 Wn.2d 417, 432, 327 P.3d 600 (2013). The PRA establishes specific

grounds that exempt a record from release. See, e.g., RCW 42.56.210-.480.

One of these grounds, the “other statutes” exemption, “incorporates into the

[PRA] other statutes which exempt or prohibit disclosure of specific information or

records.” Progressive Animal Welfare Soc’y v. Univ. of Wash., 125 Wn.2d 243,

261-62, 884 P.2d 592 (1994) (PAWS); RCW 42.56.070(1).

[I]f another statute (1) does not conflict with the [PRA], and (2)
either exempts or prohibits disclosure of specific public records in
their entirety, then (3) the information may be withheld in its entirety
notwithstanding the redaction requirement.

PAWS, 125 Wn.2d at 262. Whether a statute is an “other statute” under the PRA

is a question of law we review de novo. Doe ex rel. Roe v. Wash. State Patrol,

185 Wn.2d 363, 371, 374 P.3d 63 (2016).

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No. 81814-7-I/7

The Does argue that RCW 13.50.050 qualifies as an “other statute”

exemption under the PRA prohibiting the release of juvenile records. We agree.

RCW 13.50.050 protects “records relating to the commission of juvenile

offenses,” and provides that “[a]ll records other than the official juvenile court file

are confidential and may be released only as provided in” chapter 13.50 RCW.

RCW 13.50.050(1), (3). This protection extends to the “records of any other

juvenile justice or care agency in the case.” RCW 13.50.010(1)(d).

But citing Loving v. City of Houston, 282 S.W.3d 555 (Tex. App. 2009), the

Does contend that chapter 13.50 RCW should also preclude release of John Doe

5’s adult records because they “pertain to juvenile suspects,” and disclosure

would cause the juveniles to “forfeit confidentiality.” In Loving, the Texas Court of

Appeals upheld a trial court ruling that a single police report pertaining to both an

adult and juvenile suspect was exempt from disclosure as a “law-enforcement

record concerning a child.” Loving, 282 S.W.3d at 561. The court determined

that per statute, “two separate files should have been maintained,” and rejected

the appellant’s argument that the file could be redacted because no authority to

redact exists under Texas law. Loving, 282 S.W.3d at 561.

Here, the very safeguards of privacy that are missing in Loving protect the

identities of the Does. CHPD created separate, though nearly identical, files for

the juvenile and adult suspects. And in Washington, “an agency must redact

[records] to overcome any and all relevant exemptions.” Resident Action

Council, 177 Wn.2d at 441. Consistent with Washington law, KCPAO redacted

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No. 81814-7-I/8

John Doe 5’s records to protect the identities of the juvenile suspects. Chapter

13.50 RCW does not preclude the release of John Doe 5’s adult records.3

B. Investigative Records

Investigative and law enforcement information is exempt from public

disclosure if it is “essential to effective law enforcement or for the protection of

any person’s right to privacy.” RCW 42.56.240(1). Here, the parties do not

dispute that John Doe 5‘s CHPD file amounts to a law enforcement investigative

record. But the Does argue that release of the records would violate their right to

privacy because the sexual misconduct accusations against them are

“unsubstantiated” and “highly offensive.”

A person’s right to privacy “is invaded or violated only if disclosure of

information about the person . . . (1) [w]ould be highly offensive to a reasonable

person, and (2) is not of legitimate concern to the public.” RCW 42.56.050.

Generally, this applies “only to the intimate details of one’s personal and private

life.” Spokane Police Guild v. Wash. State Liquor Control Bd., 112 Wn.2d 30, 38,

769 P.2d 283 (1989). Embarrassment is not enough to prevent disclosure.

RCW 42.56.550(3); West v. Port of Olympia, 183 Wn. App. 306, 313, 333 P.3d

488 (2014). Even if disclosure is offensive, records should be released “if there

is a legitimate or reasonable public interest in the disclosure.” Martin v. Riverside

Sch. Dist. No. 416, 180 Wn. App. 28, 33, 329 P.3d 911 (2014).

3 In the alternative, the Does challenge the sufficiency of KCPAO’s redactions, arguing
the trial court should adopt their proposed redactions. The Does have the burden to show that
information is exempt and should be redacted. Does v. King County, 192 Wn. App. 10, 24, 366
P.3d 936 (2015). But they make no argument as to why KCPAO’s redactions are inadequate, or
why the Does’ proposed redactions are necessary to protect their privacy interests. Passing
treatment of an issue or lack of reasoned argument is insufficient to merit judicial consideration.
Samra v. Singh, 15 Wn. App. 2d 823, 836, 479 P.3d 713 (2020). We do not consider this claim.

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No. 81814-7-I/9

Does 1-11 v. Bellevue School District, 164 Wn.2d 199, 189 P.3d 139

(2008), helps explain when, as here, the public disclosure of uncharged4

accusations of sexual misconduct may violate the right to privacy. In that case,

teachers accused of committing sexual misconduct against students sued to

prevent release of their names in response to a public records request. Does 1-

11, 164 Wn.2d at 205. The court determined that when allegations of

misconduct are “unsubstantiated,” disclosure of a teacher’s identity violates their

right to privacy, and enjoined release under the former public disclosure act.5

Does 1-11, 164 Wn.2d at 206-07. The court noted, “It is undisputed that

disclosure of the identity of a teacher accused of sexual misconduct is highly

offensive to a reasonable person,” and the public has no legitimate interest in

finding out the names of falsely accused people. Does 1-11, 164 Wn.2d at 216-

17. As a result, “[w]hen an allegation is unsubstantiated, the teacher’s identity is

not a matter of legitimate public concern.” Does 1-11, 164 Wn.2d at 221.

Like the teachers in Does 1-11, the claims of sexual assault against John

Does 2-4 are uncharged. Thus, the public has no legitimate interest in their

identities.6 But unlike the teachers in Does 1-11, the records here do not identify

the Does by name. Instead, their identities are redacted. Release of the

redacted records protects the Does’ privacy, and also serves the legitimate public

4 The Does and the cited Supreme Court cases use the term “unsubstantiated.” Here,
we use the term “uncharged” as the KCPAO determined available evidence did not meet its filing
standards and declined to pursue charges. We consider the terms interchangeable for purposes
of our legal analysis.
5 The legislature recodified chapter 42.17 RCW as the PRA in 2005. LAWS OF 2005, ch.
274.
6 As a witness who was never a suspect in the alleged assault, John Doe 1 has an even
greater privacy interest.

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No. 81814-7-I/10

concern of overseeing the police investigation of sexual assault allegations and

the KCPAO’s decision not to file charges. See Does 1-11, 164 Wn.2d at 221. As

a result, John Doe 5’s records are not exempt from disclosure under RCW

42.56.240(1).7

Pseudonyms

On cross appeal, the Seattle Times argues the trial court erred in granting

the Does permission to pursue their case under pseudonym because the state

constitution protects public access to party names.8 We review a decision to

allow parties to proceed under pseudonym for an abuse of discretion. Doe L. v.

Pierce County, 7 Wn. App. 2d 157, 202, 433 P.3d 838 (2018).

Article I, section 10 of the Washington Constitution states, “Justice in all

cases shall be administered openly.” But “the public’s right of access is not

absolute, and may be limited to protect other interests.” Seattle Times Co. v.

Ishikawa, 97 Wn.2d 30, 36, 640 P.2d 716 (1982).

A trial court must justify redaction of names in pleadings under GR 15.

Doe G. v. Dep’t of Corr., 190 Wn.2d 185, 198, 410 P.3d 1156 (2018). GR

7 The Does also argue the court erred in failing to grant declaratory relief. According to

the Does, a favorable ruling under the declaratory judgment act, chapter 7.24 RCW, would have
amounted to the “ ‘functional equivalent of an injunction,’ ” eliminating the need to seek relief
under the PRA. (Quoting Florida ex rel. Bondi v. U.S. Dep’t of Health & Human Servs., 780 F.
Supp. 2d 1307, 1316 (N.D. Fla. 2011), aff’d in part, rev’d in part by Nat’l Fed’n of Indep. Bus. v.
Sebelius, 567 U.S. 519, 132 S. Ct. 2566, 183 L. Ed. 2d 450 (2012).) But in rejecting the Does’
petition for a preliminary injunction under the PRA, the court concluded that John Doe 5’s records
“are not categorically exempt under RCW 13.50.050” or the Washington State Criminal Records
Privacy Act. The Does fail to explain why the court would have reached a different conclusion in
the context of a declaratory judgment.
8 The Seattle Times also argues that CR 10(a)(1), RAP 3.4, and King County Local Civil

Rule (KCLCR) 10 “all reflect a policy that initials are necessary when names are concealed.” But
CR 10(a)(1) does not address initials at all, and RAP 3.4 requires the use of initials in only
juvenile offender cases. And while KCLCR 10(a)(1)(B) states that a party “may file” a case using
initials, the Seattle Times cites no authority that this permissive language prohibits the use of
pseudonyms.

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No. 81814-7-I/11

15(c)(2) authorizes the redaction of names when “justified by identified

compelling privacy or safety concerns that outweigh the public interest in access

to the court record.”

Redaction of names in pleadings may also infringe on the presumption of

open access to courts and court documents guaranteed under article I, section

10. An Ishikawa analysis is necessary when a redaction implicates article I,

section 10 protections. See State v. S.J.C., 183 Wn.2d 408, 412, 352 P.3d 749

(2015). Under Ishikawa, a court must satisfy a five-step analysis before sealing

or redacting records. See Doe G, 190 Wn.2d at 198-99 (citing Ishikawa, 97

Wn.2d at 37-39). The court must

1) identify the need to seal court records, (2) allow anyone present
in the courtroom an opportunity to object, (3) determine whether the
requested method is the least restrictive means of protecting the
interests threatened, (4) weigh the competing interests and
consider alternative methods, and (5) issue an order no broader
than necessary.

Doe G, 190 Wn.2d at 199.

Ishikawa augments the requirements of GR 15. See In re Dependency of

M.P.H., 184 Wn.2d 741, 765, 364 P.3d 94 (2015); Indigo Real Estate Servs. v.

Rousey, 151 Wn. App. 941, 949-50, 215 P.3d 977 (2009). Whether article I,

section 10 applies hinges on the two-prong “experience and logic test.” S.J.C.,

183 Wn.2d at 412; Doe AA v. King County, 15 Wn. App. 2d 710, 719, 476 P.3d

1055 (2020), review denied by Doe AA v. Zink, 197 Wn.2d 1011, 487 P.3d 517

(2021). The “experience” prong examines “ ‘whether the place and process have

historically been open to the press and general public.’ ” S.J.C., 183 Wn.2d at

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No. 81814-7-I/12

4179 (quoting In re Det. of Morgan, 180 Wn.2d 312, 325, 330 P.3d 774 (2014)).

And the “logic” prong considers “ ‘whether public access plays a significant

positive role in the functioning of the particular process.’ ” S.J.C., 183 Wn.2d at

43010 (quoting Morgan, 180 Wn.2d at 325).

The Does contend that application of the experience and logic test here

shows that article I, section 10 does not apply to their motion to proceed under

pseudonym. The Seattle Times cites Doe G, 190 Wn.2d at 198-201, for the

broad proposition that Ishikawa “clearly” applies whenever a party seeks to

proceed under pseudonym. We agree with the Does.

In Doe G, convicted sex offenders tried to enjoin release of their SSOSA11

evaluations, which were the subject of a PRA request. Doe G, 190 Wn.2d at

189-90. A pro se petitioner appealed the trial court’s order allowing the

respondents to proceed under pseudonym, and we affirmed that order. Doe G,

190 Wn.2d at 190. Our Supreme Court reversed, holding that “names in

pleadings are subject to article I, section 10 and redaction must meet the

Ishikawa factors.” Doe G., 190 Wn.2d at 201. But the court arrived at this

conclusion only after applying the experience and logic test to determine whether

the specific facts concerning release of convicted sex offender SSOSA

evaluations implicated article I, section 10. Doe G., 190 Wn.2d at 199-200.

Under the experience prong, the court concluded that “parties who have

not been convicted of any crime may have a legitimate privacy interest [to

9 Internal quotation marks omitted.
10 Internal quotation marks omitted.
11 Special sex-offender sentencing alternative.

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No. 81814-7-I/13

proceed under pseudonym] because there is no public record associating them

with the subject of their litigation.” Doe G, 190 Wn.2d at 199-200. But “the

names of people convicted of criminal offenses, including sex offenders, have

historically been open to the public.” Doe G, 190 Wn.2d at 199. The court

determined that “[l]ogic also suggests that the John Does do not have a

legitimate privacy interest to protect.” Doe G., 190 Wn.2d at 200. Because a

SSOSA is a sentencing alternative, the public plays a “significant role” in the

process. Doe G, 190 Wn.2d at 200-01. As a result, the Supreme Court held that

the convicted sex offenders’ request to proceed under pseudonym was subject to

article I, section 10, and any redactions of their names must satisfy the Ishikawa

factors. Doe G, 190 Wn.2d at 201.

Here, the experience prong supports the Does’ contention that article I,

section 10 does not apply to their request to proceed under pseudonym. Unlike

the convicted sex offenders in Doe G, the Does were never charged in

connection with the alleged sexual assault. They are not “people convicted of

criminal offenses” whose names have “historically been open to the public.” Doe

G, 190 Wn.2d at 199. And our Supreme Court has protected identities where

allegations were uncharged because the public has no legitimate interest in the

names of falsely accused people. See Does 1-11, 164 Wn.2d at 217. Moreover,

the Does are juveniles. The legislature has always treated court records

identifying juveniles as distinctive and deserving of more confidentiality than

other types of records. S.J.C., 183 Wn.2d at 417. “Requiring an individualized

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showing under the Ishikawa factors would thus be directly contrary to this court’s

entire history regarding juvenile courts.” S.J.C., 183 Wn.2d at 423.

The logic prong also supports the Does’ argument. As discussed, the

public has an interest in the oversight of investigations. See Does 1-11, 164

Wn.2d at 219-20. But the public has no legitimate interest in the identities of

juveniles facing uncharged accusations of sexual assault. See Does 1-11, 164

Wn.2d at 217. Redacting the Does’ names serves to protect their identities

without impeding the public’s ability to oversee police investigation of the alleged

sexual assault. Does 1-11, 164 Wn.2d at 2220. Applying both prongs of the

experience and logic test shows that article I, section 10 is not implicated by the

Does’ motion to proceed under pseudonym, and satisfaction of the Ishikawa

factors before granting their motion was unnecessary.

While Ishikawa does not apply to the Does’ motion to proceed under

pseudonym, the trial court must still enter written findings satisfying the less

stringent standard of GR 15 to support its conclusion that the Does’ privacy

concerns outweigh the public’s interest to access their identities. Yakima County

v. Yakima Herald-Republic, 170 Wn.2d 775, 801-03, 246 P.3d 768 (2011)

(Ishikawa analysis was unnecessary but trial court needed to follow requirements

of GR 15). In support of their motion to proceed under pseudonym, the Does

noted that they “have never been charged with any crime.” They argued that

revealing their identities would allow them to be “tarnished by connection to some

unsubstantiated accusations involving sexual misconduct.” According to the

Does, the only public interest “is the prurient interest of community members,”

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and “[s]uch ‘gossip and sensation’ is not a public interest.” The trial court agreed,

and entered written findings to support its conclusion that the Does identified a

compelling privacy interest that outweighed the public’s interest in knowing their

identities. The trial court did not abuse its discretion in allowing them to proceed

under pseudonym.

We affirm the order denying the Does’ motion for injunctive relief and

declaratory judgment and the order granting the Does’ motion to proceed under

pseudonym, and lift the temporary injunction.

WE CONCUR:

15

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/4908701. Public record. Not legal advice.