### FILED OCTOBER 10, 2017 In the Office ofthe Clerk ofCourt WA State Court ofAppeals, Division III

INTHE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISIONTHREE JOHNDOE, an individual, ) ) Plaintiff, ) ) V. ) ) BENTONCOUNTY, a municipal ) corporation in the State ofWashington, ) ) Respondent, ) ) DONNAZINK andJEFF ZINK, husband ) and wife, ) ) Appellants. ) No. 34519-0-111

PUBLISHED OPINION

LAWRENCE-BERREY, A.CJ. -In2013 and 2014, DonnaZinkmade a series of requests underthePublic Records Act (PRA), chapter42.56 RCW, seeking documents pertainingto level Iregistered sex offenders. She made one ofthese requests to Benton County (the County), whichpossessedrecords identifying theplaintiffin this case, John Doe, as a level I sex offender. Beforethe County producedits final installment of records, which contained JohnDoe's information, itnotified John Doe aboutMs. Zink's request.No. 34519-0-III John Doe v. Benton County
John Doe filed suit against the County, Ms. Zink, and Ms. Zink'shusbandto enjoinproduction ofthe records identifying him. In their answer, the Zinks asserted a
cross claim against the County, claiming it violated the PRAby withholding the requested records to notify John Doe about the request. The trial court dismissedthe Zinks' cross claim under CR 12(b)(6), and the Zinks appealed. We affirm. FACTS On July 21, 2013, Ms. Zink submitted a public records requestto the County. In it, she sought "the level one [sex] offenderregistrations filed in Benton County as well as a list ofall level one [sex] offenders registered in Benton County." 1 Clerk's Papers (CP) at 352. The County responded to Ms. Zink and informed herthe sheriffs office would begin processing herrequest. One week later, the County contacted Ms. Zink and indicated the documents she requested were potentially exempt from disclosure underboth the "investigative records" and "other statute" exemptions.2 The County told Ms. Zink it was going to notify the

1This particularrequest is not at issue in this case. It is discussed for context. 2See RCW 42.56.240(1) (exempting investigative records); RCW 42.56.070(1) (exempting information that is protectedby an "other statute"); RCW 4.24.550(3) (authorizing and providing guidelines to law enforcement agencies for proactively disseminating information about sex offenders to the public). The County indicated RCW 4.24.550(3) was an "other statute" underthe PRA, which potentially exempted release ofthe records. 2No. 34519-0-III John Doe v. Benton County
affected individuals that she had requested their records. 

### It statedthe notice would include a copy ofher request and her name so thatthe affected individuals could seek an injunction ifthey believedthe records were exempt. The County statedthat absent an injunction, it would release the records. In response to the County's notices, 14 individuals filed a complaintto enjoin the County from releasing their informationto Ms. Zink. Multiple lawsuits were filed, and the trial court entered four permanent injunctions prohibiting the County from releasing the records. On April 17, 2014, Ms. Zinkmade another PRArequest. She sought "all e-mails sentto or received from anyone or any person in Benton County staff, officials, council members, other agencies
... concerning [her] requests for sex offender information starting on July 15, 2013 through and including April 17, 2014." CP at 363. This is the request at issue in this case. Following Ms. Zink's April 17 request, the County began responding in installments. During this process, the County came across names ofnew individuals whose names were not identified in the initial set ofrecords responsive to Ms. Zink's July 2013 request. By June 2015, the County had e-mailed Ms. Zink 12 installments of responsive records and was close to completing her April 17, 2014 request.


### 3No. 34519-0-III John Doe v. Benton County
OnJuly 1, 2015, the County sent a written notice to 72 new individuals whose identities would be released in its response to Ms. Zink's April 17, 2014 request. The letter notified these individuals that the County hadreceived a request for records that identified them as level I sex offenders. The letter also stated the County did not believe the records were exempt from release, but that it nonetheless was providing notice as permittedby RCW 42.56.540 because the records identified the individuals. The letter stated the Countywould release the records in their entirety on July 17, 2015, unless it
was enjoined from doing so. The County never claimed an exemption for the records associated with these 72 individuals. John Doe, the plaintiffin this case, received one ofthese notices. The County possessed roughly five documents that contained his information. OnJuly 16, 2015, he filed suit against both the County and the Zinks, seeking to enjoin theproduction ofany records that identified him. The next day, the trial court issued a temporary restraining order enjoining the County from producing any records whatsoever associated with Ms. Zink's April 17, 2014 request. The County filed an answerto John Doe's complaint. It stated that it intendedto produce the records Ms. Zinkrequested, and that it believedthe records were nonexempt.

4No. 34519-0-III John Doe v. Benton County
The Zinks also filed an answerto John Doe's complaint. In it, they asserted a
cross claim against the County for alleged violations ofthe PRA. They claimedthe County was withholding the records without an applicable exemption and without providing an exemption log. They further claimed the County did not "need"to notify the John Does, and that it did so to delay or deny release ofthe requested records. CP at 30. They also claimed the County wrongfully disclosed their contact information to John Doe. John Doe moved for apreliminary injunction. The County opposed his motion, arguing that the records did not fall under any PRA exemption. The trial court entered an injunction and enjoined the County from releasing any documents responsive to Ms. Zink's April 17, 2014 records request without first redacting John Doe's information. Following the court's injunction, the Countyproducedthe responsive records to Ms. Zink with John Doe's information redacted. On August 26, 2015, the County moved to dismiss the Zinks' cross claim against it under CR 12(b)(6). The trial court concluded that the PRA gives the Countythe option of notifying third parties ofrecords requests, and thatthe County did notviolate the PRA by exercising that option. The trial court further reasoned thatthe PRA'spenalty and attorney fee provision does not apply when a third party brings an actionto prevent disclosure. Accordingly, the trial court dismissed the Zinks' cross claim with prejudice.
5No. 34519-0-111 John Doe v. Benton County
In April 2016, our Supreme Court issued its opinion inJohn DoeAv. Washington State Patrol, 185 Wn.2d 363,374 PJd 63 (2016). That case involved identical requests for level I sex offender information that Ms. Zink made to the Washington State Patrol and the Washington Association ofSheriffs and Police Chiefs. Id. at 367-68. The court held that RCW 4.24.550 is not an "other statute" underRCW42.56.070. John DoeA, 185 Wn.2d at 368. Thus, the court concluded that "level I sex offenderregistration information is subjectto disclosure." Id. at 385. Following the issuance ofthe mandate from the Supreme Court, the County moved to dissolve John Doe'spreliminary injunction and dismiss his complaint. The trial court granted the County's motion. The trial court also unsealedthe records identifying John Doe and ordered unredacted copies to be provided to the County and the Zinks. The Zinks appeal from the trial court's September 2015 order dismissing their
cross claim. ANALYSIS STANDARD OF REVIEW CR 12(b)(6) allows a defendantto move to dismiss a complaintbased onthe plaintiffs failure to state a claim on which reliefcan be granted. When considering a defendant's motion to dismiss under this rule, the courtpresumes all facts alleged in the
6No. 34519-0-III John Doe v. Benton County plaintiffs complaint are true. Jackson v. QualityLoanServ. Corp., 186 Wn. App. 838, 843, 347 P.3d487, review denied, 184 Wn.2d 1011, 360 P.3d 817 (2015). The courtmay also considerhypothetical facts conceivablyraised by the complaint. Id. However, the court is not required to acceptthe complaint's legal conclusions. Id. Ifthe facts in the complaint orhypothetical facts consistent with the complaint are legally insufficientto support the plaintiffs claims, dismissal underthis rule is appropriate. Id. at 843-44. Becausethe trial court'sruling on a CR 12(b)(6) motionto dismiss is a question oflaw, this court reviews the trial court's order de novo. Id. at 843. ALLEGED WRONGFUL DENIAL OF ACCESS TO RECORDS The Zinks argue thatthe County violated the PRAby denying them access to the records while it notified John Doe aboutthe request. They also argue the County withheld the records without an applicable exemption and withoutproviding an exemption log. This courtreviews an agency's compliance withthe PRA de novo. RCW 42.56.550(3). Within five business days ofreceiving a records request, an agency must either (1) provide the records, (2) provide an Internet link for the records, (3) acknowledge the request and give a reasonable estimate oftime it will need to provide the records, or

7No. 34519-0-III John Doe v. Benton County (4) deny the request. FormerRCW42.56.520 (2010).3 An agency may producerecords
on a "partial or installmentbasis" as it assembles a larger set ofrequestedrecords. Former RCW 42.56.080 (2005). A "denial" ofa request can occur, for example, when an agency (1) does nothave the record, (2) fails to respond to a request, (3) claims an exemption ofthe entire record
or aportion ofit, or (4) fails toprovide the record afterthe reasonable estimate expires. WAC 44-14-04004(4).4 An agency violates the PRAwhen it wrongfully denies an opportunityto inspect or copy apublic record. RCW42.56.550(1). When an agency withholds a record orpart ofa record based on an exemption, the agency must explain andjustifythis withholding in writing, i.e., provide an exemption log. RCW 42.56.070(1); RCW42.56.210(3); former RCW 42.56.520. An agency's decision to deny a request becomes final for purposes of judicial reviewtwo business days after it initially denies the request. FormerRCW42.56.520; WAC 44-14-08004(1 ). A requestor is notpermittedto initiate a lawsuitpriorto an

3 In 2017, the legislature amended RCW42.56.520 to address an agency's obligations in responding to unclear records requests. See ENGROSSED SUBSTITUTEH.B. 1594, 65th Leg., Reg. Sess. (Wash. 2017). 4Although the model rules in chapter 44-14 WAC are advisory, the legislature has instructed agencies to consultthe model rules when establishing local ordinances for PRA compliance. RCW42.56.570(4). 8No. 34519-0-III John Doe v. Benton County agency's denial ofa publicrecord. Hobbs v. Wash. StateAuditor's Office, 183 Wn. App. 925,935,335 P.3d 1004 (2014). In otherwords, there is no cause ofaction under the PRA until afterthe agency has engaged in some final action denying access to a record. 

### Id. at 935-36. When an agency produces records in installments, the agency does not "deny" access to the records until it finishes producing all responsive documents. 

### Id. at 936-37. "An agency has the option ofnotifying persons named in the record orto whom arecord specificallypertains, that release ofa record has been requested." RCW42.56.540; see also WAC 44-14-040(4); WAC 44-14-04003(11). "An agency has wide discretion to decide whom to notify ornot notify." WAC 44-14-04003(11). The agency provides this notice before it produces the record, which allows the affectedthird parties to seek an injunction to prevent disclosure. WAC 44-14-040(4); WAC 44-14- 04003(l l); see also RCW 42.56.540. Before notifying thirdparties, the agency should have areasonable beliefthat the record is arguably exempt from disclosure. WAC 44-14- 040(4); WAC 44-14-04003(11). A full response to apublic records request may include notifying thirdparties named in the records who might seek an injunction against disclosure. WAC 44-14- 04003(6). Accordingly, an agency may take additional time to respond to a request
9No. 34519-0-III John Doe v. Benton County
based on a need to notify thirdpersons or agencies affected by the request. Former RCW 42.56.520. Here, there are no facts to support a claim thatthe County denied the Zinks the right to inspect any public record or otherwise violated the PRA in responding to the April 17, 2014 request.5 Afterproducing the majority ofthe responsive records in installments, the County opted to notify John Doe that Ms. Zink hadrequested records that identified him. Although the County maintained the records were notexempt, the records were at least arguably exempt given thatthe trial courthad already ruled in various other lawsuits that identical sex offenderrecords were exempt and had enjoined the County from producingthem. The County intended to release these records identifying John Doe in its final installment on July 17, 2015, butJohn Doe filed suit and obtained an order restraining the County from producing this final installment. The Zinks argue that the County withheld and denied them access to the records while it notified John Doe and the other affected individuals. However, the County never

5 The Zinks also argue that the County violated the PRA in responding to Ms. Zink's othervarious PRArequests, including herJuly 2013 request. However, a party may only assert a cross claim against a co-party ifthe claim "aris[es] out ofthe transaction or occurrence that is the subject matter ... ofthe original action." CR 13(g). John Doebroughtthis suitto enjoin the County from releasing records responsive to Ms. Zink's April 17, 2014 request. As such, the Zinks' cross claim may only be for alleged PRA violations with respect to this request. 10No. 34519-0-III John Doe v. Benton County
denied Ms. Zinkthe right to inspect any record. Becausethe County had notyet finished producing all responsive documents, the request was still open. The County never claimed an exemption, refused to produce the records, or otherwise engaged in final action denying access to the records. Rather, it simply took additional time to notify John Doe about the request, which RCW 42.56.520 expressly authorizes. The Zinks also argue the County violated the PRAbecause it did not claim an exemption orprovide an exemption log before notifying John Doe about Ms. Zink's request. But neitherthe statute nor the model rules require or advise this. Moreover, such arequirement would be inconsistent with the policy underlying thirdparty notice, which is to give the third party a chance to assert an exemptionwhen the agency does not believe the records are exempt and will not claim apotential exemption onthe third party's behalf. See WAC 44-14-04003(11). In sum, the PRA recognizes that an agency may not be able to respond fully to a request ifit needs to notify thirdparties who are affected by the request. Here, in light of the other lawsuits and injunctions concerning identical level I sex offender information, a full resp·onse to Ms. Zink's April 17, 2014 request necessitated a notification to John Doe, who had not yet received notice. The County was statutorily authorized to take additional time to do this. Accordingly, the facts alleged in the Zinks' cross claim do not
11No. 34519-0-III John Do.e v. Benton County

state a claim for a PRAviolation, and the trial court did not err in dismissing it under CR 12(b)(6). PENALTIES AND ATTORNEY FEES The Zinks argue that they are entitled to per diem penalties and attorney fees. To the extentthe Zinks argue they are entitled to penalties because the County notified John Doe, our Supreme Court expressly rejectedthis argument in John DoeA, 185 Wn.2d at 387. To the extentthe Zinks argue they are entitledto penalties because the County wrongfully withheld the records identifying John Doe, a requestor is not entitledto penalties under the PRA "unless some 'final agency action' denies inspection or copying ofapublic record." Hikel v. City of Lynnwood, 197 Wn. App. 366,379,389P.3d 677 (2016) (internal quotation marks omitted). Here, the County never withheld or denied the Zinks the right to inspect any records. As discussed above, Ms. Zink'srequest was still open and pending when the trial court enjoinedthe County from completing the request. 

### It was the court-notthe County-thatprevented production ofthe remaining records. Because the County never took "'final agency action'" with respectto the records, the Zinks are not entitled to PRA penalties onthis basis. See Hikel, 197 Wn. App. at 379.

12No. 34519-0-111 John Doe v. Benton County
The Zinks also argue they are entitled to penalties because theyprevailed against the County. RCW42.56.550(4) provides that [ a]nyperson who prevails against an agency in any action in the courts seeking the right to inspect or copy any public record orthe right to receive aresponse to apublic record request within a reasonable amount oftime shall be awarded all costs, including reasonable attorney fees, incurred in connection with such legal action. Here, the Zinks neverprevailed againstthe County-theyprevailed against John Doe. RCW 42.56.550(4) does not authorize penalties or attorney fees in this situation. See, e.g., John DoeA, 185 Wn.2d at 386-87. Accordingly, the Zinks are not entitled to per diem penalties or attorney fees. COUNTY'S DISCLOSURE OF THE ZINKS' CONTACT INFORMATION The Zinks argue that the County wrongfully disclosed theirpersonal information to the JohnDoes, including their names, address, and e-mail addresses. When an agency notifies third parties about a records request, the notice should make it possible for those parties to either contact the requestor and askthe requestorto revise the request, orto seek a court orderto prevent the disclosure. WAC 44-14-040(4). The notice to the affected individuals will include a copy ofthe request. WAC 44-14- 040(4). Because the requestorhas an interest in any legal action to preventthe disclosure

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ofthe records, the agency's notice should also instructthe thirdparties to name the requestor as a party to any action. WAC 44-14-04003(11). Withoutthe Zinks' contact information, the John Does would not have been able to contact Ms. Zink and ask herto revise herrequest or name her as a partyto an action. The County was entitledto provide this information. APPELLATE COSTS The Zinks request an award offees and costs underRAP 14 "[a]s the substantially prevailingparty in this cause ofaction."6 Br. ofAppellant at 38. This rule gives appellate courts discretion to considerthe issue ofappellate costs when the parties raise the issue in theirbriefs. State v. Sullivan, 196 Wn. App. 277, 297, 383 P.3d 574 (2016), review denied, 187 Wn.2d 1023, 390 P.3d 332 (2017). Generally, "theparty that substantially prevails on review" will be awarded appellate costs, unless the court directs otherwise in its decision. RAP 14.2; see MountAdamsSch. Dist. v. Cook, 150 Wn.2d 716, 726-27, 81 P.3d 111 (2003). Here, the Zinks are notthe substantiallyprevailing party nor do they identify any other factor that would entitle them to costs underRAP 14. We, therefore, decline to awardthem appellate costs.

6The County does notrequest appellate costs in its brief. 14No. 34519-0-III John Doe v. Benton County
Affirmed.

WE CONCUR: 

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Siddoway, J.

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