IN THE COURTOFAPPEALS OF THE STATE OF WASHINGTON No. 74354-6-1 JOHN DOE G, JOHN DOE I,and JOHN DOE H, as individuals and on behalfofothers similarly situated, Respondents,

v. DEPARTMENT OF CORRECTIONS, STATE OFWASHINGTON, Appellant, DONNAZINK, a married woman, Appellant. (Consolidated with No. 74355-4-1) DIVISION ONE

PUBLISHED OPINION

FILED: January 23, 2017 Leach, J. —The DepartmentofCorrections (Department) and DonnaZink each appeal a trial courtorderenjoining disclosure ofcertain special sex offender sentencing alternative (SSOSA) evaluations. Zink submitted a Public Records 

### Act (PRA)1 request for all SSOSA evaluations since 1990. The respondents (collectively Doe), a class of level I sex offenders, sued to prevent the Department from disclosing their evaluations. The trial court enjoined the Departmentfrom releasing SSOSA evaluations of level I sex offenders who, as ofthe request date, had complied with their conditions of supervision. Because each evaluation necessarily includes a diagnosis of the offender's mental
Ch. 42.56 RCW.No. 74354-6-1 (consol. w/ No. 74355-4-1)/ 2 conditions, it contains confidential health care information under Washington's 

### Uniform Health Care Information Act (UHCIA).2 Without redaction of this information, they are thus exempt from PRA disclosure. Because experience and logic showthat allowing plaintiffs to use pseudonyms inthese circumstances does not implicate the Washington Constitution, the trial court did not err in allowing the plaintiffs to proceed under pseudonyms. And because the PRA does not prohibit plaintiffs from suing as class representatives, the trial court did noterrincertifying the class here. We affirm.

FACTS The Washington Legislature enacted SSOSA as part of the Sentencing 

### Reform Act of 1981.3 SSOSAprovides a sentencing alternativefor first time sex offenders.4 Itallows a trial courtto suspend an offender's felony sentence ifthe 

### offender meets certain statutory criteria.5 When doing this, the court must impose certain conditions, including sex offender treatment and a term of 

### community custody.6

2 Ch. 70.02 RCW. 3 State v. Canfield, 154 Wn.2d 698, 701 n.1, 116 P.3d 391 (2005); ch. 9.94A RCW. 4Statev. Pannell. 173Wn.2d 222, 227, 267 P.3d 349 (2011). 

### 5RCW 9.94A.670(2), (4); Pannell, 173Wn.2d at227. 6RCW 9.94A.670(5)(a)-(d). -2-No. 74354-6-1 (consol. w/ No. 74355-4-1) / 3 

### To be considered for a SSOSA, an eligible offender must undergo an evaluation to determine whether the offender is "amenable to treatment."7 An 

### offender is amenable to treatment ifthe offender and the communitywill benefit from community-basedtreatmentgiven the offender's background, history, social and economic circumstances, and psychological condition.8 With narrow exceptions, the evaluation must be performed by a health professional certified by the Department of Health (DOH) to examine and treat sex offenders.9 The 

### statute generally prohibits the same provider from treating the offender ifthe offender receives a SSOSA.10 

### The SSOSAevaluation assesses "the offender's amenabilityto treatment 

### and relative risk to the community."11 The evaluation must contain, at a minimum, the offender's and the official versions of the crime, the offender's 

### criminal history, "[a]n assessment of problems in addition to alleged deviant 

### behaviors," information aboutthe offender's employmentand social life, and any 7RCW9.94A.670(3). 

### 8RCW9.94A.670(3); Statev.Oliva. 117Wn. App. 773, 780, 73 P.3d 1016 (2003).

### 9RCW9.94A.670(1)(a), .820(1); RCW 18.155.020. 

### 10 RCW9.94A.670(13) ("unless the court has entered written findings that such treatment is in the best interests ofthe victim and that successful treatment 

### of the offender would otherwise be impractical"). The statute sets exacting standards for eligible offenders: the offenderhad no prior sex crime convictions or convictions for violentcrimes inthe previous 5 years; the offensedid not result in bodily harm; the victim was not a strangerto the offender; and the offender's crime did not mandate a sentence of 11 years ormore. RCW9.94A.670(2). 

### 11 RCW9.94A.670(3)(b). -3-No. 74354-6-1 (consol. w/ No. 74355-4-1) / 4 

### other evaluation measures the provider used.12 Based on these factors, the provider must assess the appropriateness of community treatment, summarize



### 12 RCW 9.94A.670(3)(a). DOH regulations impose more specific requirements, including: (i) A description ofthe current offense(s) or allegation(s) including, but not limited to, the evaluator's conclusion aboutthe reasons for any discrepancy between the official and client's versions ofthe offenses orallegations; (ii) A sexual history, sexual offense history and patterns ofsexual arousal/preference/interest; (iii) Prior attempts to remediate and control offensive behaviorincluding priortreatment; (iv) Perceptions of significant others, when appropriate, including their ability and/or willingness to support treatment efforts;(v) Risk factors for offending behaviorincluding: (A)Alcohol and drug abuse; (B) Stress; (C) Mood; (D) Sexual patterns; (E) Use ofpornography; and (F) Social and environmental influences; (vi) Apersonal history including: (A) Medical; (B) Marital/relationships; (C) Employment; (D) Education; and (E) Military; (vii) Afamily history; (viii) Historyofviolence and/orcriminal behavior; (ix) Mental health functioning including coping abilities, adaptation style, intellectual functioning and personality attributes; and 

### (x) The overall findings of psychological/physiological/medical assessment ifthese assessments have been conducted. WAC 246-930-320(2)(e). -4-No. 74354-6-1 (consol. w/No. 74355-4-1) / 5
its "diagnostic impressions," assess factors affecting risk to the community,


### assessthe offender'swillingnessto participate, and proposeatreatmentplan.13 Ifthe offender meets the statutory criteria and undergoes an evaluation, the trial court then must consider a number of circumstances, including the 

### victim's opinion in particular, and decide ifa SSOSAsentence is appropriate.14 The Department supervises offenders who receive a SSOSA.15 Unlike other mental health treatment information, the Department does not receive a SSOSA evaluation from the provider. Rather, either the prosecutor or defense 

### attorney usually provides the evaluation to the community corrections officer investigating the offender's history.



### 13WAC246-930-320(2)(f), (g). Theplan mustcontain: (i) Frequency and type of contact between offender and therapist; 

### (ii) Specific issues to be addressed in the treatment and description ofplannedtreatmentmodalities; 

### (iii) Monitoring plans, including any requirements regarding 

### living conditions, lifestylerequirements, and monitoring by family members and others; (iv)Anticipated length oftreatment; and 

### (v) Recommended crime-related prohibitions and affirmative conditions, which must include, to the extent known, an identification ofspecific activities or behaviorsthatare precursors 

### to the offender's offense cycle, including, but not limited to, activities or behaviors such as viewing or listening to 

### pornographyor use ofalcohol orcontrolled substances. RCW 9.94A.670(3)(b). 14 RCW9.94A.670(4). 15RCW9.94A.501(4)(f). -5-No. 74354-6-1 (consol. w/ No. 74355-4-1) / 6


### Doe submitted unrebutted expert testimony that SSOSA sentences are 

### effective. A 2005 study commissioned by the legislature found that offenders who complete SSOSAsentences havethe lowestrecidivism rates foranytype of crime, including sex offenses—rates less than one third those of other 

### offenders.16 Nonetheless, SSOSA sentences are increasingly rare in practice

even among eligible offenders. In 2005, 35 percent of offenders who met the statutory criteria received SSOSA sentences, down from 59 percent in 1986. In 2012, only95 offenders inthe state received a SSOSA sentence. InJuly 2014, Donna Zink made a PRA requestfor all SSOSA evaluations "maintained, inthe possession of or owned by theWashington State Department 

### ofCorrectionsfrom January 1, 1990to the present." The Departmentresponded that it would produce the evaluations after reviewing each one to determine if it contained exempt information, including victims' names. Doe filed this action to enjointhe Departmentfrom releasing evaluations of level Isexoffenders. The plaintiffs are current or former level I sex offenders who underwent SSOSA evaluations. Level Ioffenders are those who the Department's end-of

### sentence review committeedetermines posethe lowestrisk tothe public.17

16 The recidivism rate for sex offenders sentenced to prison terms was 16.9 percent; the corresponding rate for sex offenders who received a SSOSA sentence was 4.7 percent. These rates measure the percentage of offenders convicted of a newfelony within five years oftheirrelease. 

### 17 RCW72.09.345(6); RCW 13.40.217(3). -6-No. 74354-6-1 (consol. w/ No. 74355-4-1) / 7


### The trial court first granted a temporary restraining order and then a 

### preliminary injunction against the Department.18 Italso allowed the plaintiffs to

use pseudonyms and to represent a certified class ofcompliant level Ioffenders who have received SSOSA evaluations since 1990.19 Later, the trial court granted summaryjudgment for the plaintiffs, finding that RCW71.05.445 and ch. 70.02 RCWexemptthe evaluationsfrom disclosure. 

### The court permanently enjoined the Department from fulfilling Zink's request. Zink and the Departmentappeal.
STANDARD OF REVIEW This court reviews de novo a trial court's PRA decisions aboutexemptions 

### and injunctions.20 This court also reviews the record de novo in PRA cases where "the record consists of only affidavits, memoranda of law, and other documentaryevidence, and wherethetrial courthas notseen orheard testimony 

### requiring it to assess the witnesses' credibility or competency."21 When a party seeking summaryjudgment initiallyshows the absence ofany material issue of



### 18 Because the restraining order applied only to level I offenders, the Department began producing the evaluations of level II and III offenders per Zink's request. 

### 19The plaintiffclass is divided into two subclasses: offenderswho actually received a SSOSA sentence and those who did not. 20Ameriquest Mortq. Co. v. Office ofAtt'v Gen., 177 Wn.2d 467, 478, 300 P.3d 799 (2013). 21 Bainbridqe Island Police Guild v. City ofPuvallup, 172 Wn.2d 398, 407, 259 P.3d 190 (2011). -7-No. 74354-6-1 (consol. w/ No. 74355-4-1) / 8 

### fact for trial, the party opposing summaryjudgment must produce evidence of specificfacts sufficientto showa material issue.22
ANALYSIS Health Care Information Exemption 

### The PRA requires state agencies to make records "available for public inspection and copying" unless the records are exempt under the PRA or an "other statute which exempts or prohibits disclosure of specific information or 

### records."23 Doe asserts thatboth the PRA and two "other statute[s]" exemptthe records Zink requested. We agree with Doethatthe unredacted evaluationsthat the Department intended to release are exempt from the PRA's general disclosure provision because they contain confidential health care information. We do not decide if the records can be sufficiently redacted to protect this
information. As a preliminary matter, and contrary to Zink's arguments, the Supreme 

### Court's decision in Koenig v. Thurston County24 does not dispose of Doe's exemption arguments. The Supreme Court considered only whether the PRA exemption for investigative records applies to SSOSA evaluations and victim



### 22 Hash v. Children's Orthopedic Hosp., 49 Wn. App. 130, 134-35, 741 P.2d 584 (1987), affd, 110Wn.2d 912, 757 P.2d 507 (1988). 

### 23 RCW42.56.070(1). 24 175 Wn.2d 837, 287 P.3d 523 (2012). -8-No. 74354-6-1 (consol. w/ No. 74355-4-1) / 9 

### impact statements.25 "In cases where a legal theory is not discussed in the opinion, that case is not controlling on a future case where the legal theory is 

### properly raised."26 

### The PRA includes an exemption for patients' health care information.27 This exemption incorporates the confidentiality provisions of Washington's 

### UHCIA.28 This actprotects health care informationand informationaboutmental
health services. The UHCIA prohibits disclosure of "health care information about a 

### patient" withoutthe patient's consent.29 This prohibitionapplies to "a health care provider, an individual who assists a health care providerinthe delivery ofhealth care, or an agent and employee of a health care provider." "Health care 

### information" includes "any information.
. .that identifies or can readily be 

### associated withthe identity of a patientand directly relates to the patient's health

25See RCW42.56.240. 26 Berschauer/Phillips Constr. Co. v. Seattle Sch. Dist. No. 1, 124 Wn.2d 816, 824, 881 P.2d 986 (1994). 27RCW42.56.360. 

### 28 RCW 42.56.360(2). RCW 42.56.360(1) lists types of health care information that are exempt. RCW 42.56.360(2) states, "Chapter 70.02 RCW 

### [theUHCIA] appliesto publicinspection and copying of health care information of patients." The Supreme Courthas interpretedthis languageto incorporate RCW 70.02.020. Prison Legal News, Inc. v. Dep't of Corr., 154 Wn.2d 628, 644, 115 

### P.3d 316 (2005) (discussing former RCW42.17.312, which is identical to current RCW42.56.360(2)). 

### 29 RCW70.02.020(1). -9-No. 74354-6-1 (consol. w/No. 74355-4-I)/10


### care."30 Thus, information inSSOSAevaluations is confidential underthe UHCIA 

### and exempt under the PRA if the offenders receiving the evaluations are "patients," that information identifies "or can readily be associated with" an offender's identity, and the evaluation "directly relates" to the offender's health 

### care.31 Information inthe evaluations satisfies eachoftheserequirements. First, offenders are "patients" under the UHCIA. The act defines a "patient" as "an individual who receives or has received health care."32 This 

### broad definition shows no intent for the term "patient" to limit what qualifies as 

### "health care information."33 Instead, the Supreme Court's decisions interpreting 

### 30 RCW 70.02.010(16). The UHCIA separately provides that "all information and records compiled, obtained, or maintained in the course of 

### providing mental health services to either voluntary or involuntary recipients of services at public or private agencies must be confidential." RCW 70.02.230(1). 

### Butbecause the statute defines mental health records as "a type ofhealth care information," RCW 70.02.010(21), we do not need to decide whether SSOSA evaluations also qualify as mental health records. If they are health care 

### information, they are exemptunderRCW 70.02.020(1); ifthey are not health care information, then theyare not mental health records either. 

### 31 RCW 70.02.010(16). Although RCW 70.02.020(1) applies only to "a health care provider, an individual who assists a health care provider in the delivery of health care, or an agent and employee of a health care provider"— categories that likely would not include the Department—RCW 42.56.360(2) incorporates RCW 70.02.020 into the PRA and thus restricts disclosures by the Department. Prison Legal News, 154Wn.2d at644. 

### 32 RCW70.02.010(32). 33 Hines v. Todd Pac. Shipyards Corp., 127 Wn. App. 356, 366-67, 112 P.3d 522 (2005), is distinguishable. There, this court held that the predecessor to the UHCIA did not applyto the results ofan employee's contractually required drug test, in part because the test was not given to the employee as a "patient." Among other distinctions, unlike a mandatory drug test, a SSOSA evaluation determines an offender's amenability to treatment and must include a treatment plan. -10-

### No. 74354-6-1 (consol. w/ No. 74355-4-1) /11 

### RCW70.02.020 note only two requirements for "healthcareinformation": patient identifiabilityand information aboutpatienthealth care.34 

### Second, SSOSA evaluations identify offenders. A party opposing PRA 

### disclosure must show "each patient's health care information is 'readily associated' with that patient" for the exemption to apply.35 "Where there is a 

### dispute overwhetherhealth care information is readily identifiablewith a specific patienteven when thatpatient's identity is notdisclosed, the trial courtcan use in

camera review should it need to examine unredacted records to make its 

### independentdetermination."36 This reviewwas notnecessary here becausethe Department does not intend to redact offenders' names from evaluations. The evaluations arethus "readily associated" with offenders. 

### Finally, some information in SSOSA evaluations directly relates to offenders' health care. "'Health care' means any care, service, or procedure provided by a health care provider: (a) To diagnose, treat, or maintain a patient's 

### physical or mental condition; or (b) That affects the structure or any function of thehuman body."37

34 Prison Legal News. 154 Wn.2d at 645; see also Wright v. Jeckle, 121 Wn. App. 624, 630, 90 P.3d 65 (2004). 

### 35 Prison Legal News, 154Wn.2d at 645 (emphasis omitted). 36Prison Legal News. 154Wn.2d at 645-46. 

### 37 RCW70.02.010(14). -11-No. 74354-6-1 (consol. w/No. 74355-4-I)/12
The Departmentwould interpret "to" inthis definition to mean "forthe sole purpose of." It thus contends that the evaluations do not directly relate to offenders' health care because the evaluations are not for the sole purpose of treating offenders. It asserts that the evaluations are only "mandatory forensic evaluation[s]" to assist a court in making a sentencing decision. Doe responds thatthe evaluations can have morethan one purpose. We agreewith Doe. 

### Nothing in the statute supports the Department's narrow interpretation of health care.38 The SSOSA statute requires an evaluation to include "[a]n assessment of problems in addition to alleged deviant behaviors," information about the offender's employment and social life, and any other evaluation


### measures the provider used.39 DOH regulations further require that the evaluation include, among other information, "[a] sexual history, sexual offense 

### history and patterns of sexual arousal/preference/interest," "[rjisk factors for offending behavior," and medical, marital, relationship, and family histories. The evaluations must also address "[mjental health functioning including coping 

### abilities, adaptation style, intellectual functioning and personality attributes" and

38 The relevant definition of "to" is "used as a function word to indicate 

### purpose, intention, tendency, result, or end." Webster's Third New InternationalDictionary 2401 (2002). 

### 39 RCW 9.94A.670(3)(a)(iii), (iv),(v). -12-No. 74354-6-1 (consol. w/No. 74355-4-I)/13
include "overall findings of psychological/physiological/medical assessment if these assessments have been conducted."40 The evidence Doe submitted also indicates that the evaluations contain medical, mental health, substance abuse, and sexual histories; results of physical and psychological tests; amenabilityto treatment; and information about 

### the offenders' families, as wellas their victims.41 The Departmentintroduced no
evidence to rebut the facts in these declarations. Thus, governing law and our review of the record both indicate that SSOSA evaluations include a "service[ ] or procedure provided by a health care 

### provider" to "diagnose
... a patient's
. .. mental condition."42 They therefore directly relateto offenders' health care.



### 40WAC 246-930-320(2)(e). To assess a medical condition is to diagnose it. Black's Law Dictionary 548 (10th ed. 2014) (defining "diagnosis" as "[t]he determination of a medical condition (such as a disease) by physical examination or by studyof its symptoms"). 

### 41 Doe submitted declarations from two attorneys who represent sex offenders, one ofwhom is a member ofthe Sex Offender Policy Board; from the 

### board oftheWashington Association forthe Treatment ofSexual Abusers; from the executive director of the national Association for the Treatment of Sexual 

### Abusers; from two psychologists and certified sex offender treatment providers; and from several plaintiffs. The declarations described the information offenders disclose in the evaluations. Together they indicate, as the trial court found, "SSOSA evaluations contain significant medical, mental health, and other 

### personal information, along with the evaluator's diagnostic assessment of that information." 

### 42 RCW70.02.010(14). -13-No. 74354-6-1 (consol. w/No. 74355-4-I)/14

Because SSOSA evaluations contain health care information, if not redacted, they are exempt from PRA disclosure under RCW 42.56.360(2) and RCW70.02.020(1). Becausewe hold thatthese statutes exemptthe evaluations that the Department proposed releasing, we do not reach Doe's alternative arguments that RCW 71.05.445 and RCW 70.02.250 are "other statute[s]" that exemptthe evaluations from PRAdisclosure. We do not decide whether some portion of a SSOSA evaluation would fall outside the exemption. "In general, the PDA does not allow an agency to withhold exempt records in their entirety. Rather, agencies must withhold only those portions of individual records which come under a specific exemption and disclose the rest."43 Here, the Department's only declaration in opposition to the preliminary 

### injunction suggested that names of victims may be exempt. A footnote in the Department's briefstated thatthe Departmentwould also redact information that "clearly qualifie[s] as medical information." But the Department takes the position, which itstated firmly at oral argument, that the evaluations contain no medical information. Similarly, Doe did not identify any information that would 

### not be exempt under his interpretation of the UHCIA. Both sides thus framed exemption and disclosure as all or nothing propositions. 43 Tacoma Pub. Library v. Woessner, 90Wn. App. 205, 224, 951 P.2d 357 (1998). -14-No. 74354-6-1 (consol. w/No. 74355-4-I)/15

Doe showed that the evaluations contain health care information. Our 

### record does not include any SSOSA evaluations. We have nothing before us thatwould allow us to decide ifany specific portions are notexempt. As a result, because the evaluations contain exempt health care information that the 

### Departmenthas refusedto redact, we affirmthetrialcourt.44 Pseudonyms 

### In Zink's separate appeal, she contends that the trial court improperly sealed court records when it allowed the plaintiffs to use pseudonyms. She asserts that the trial court had to hold a hearing in open court and apply the five 

### factors from SeattleTimes Co. v. Ishikawa45beforeallowing this. We disagree. The Washington Constitution creates a presumption of openness in trial 

### court proceedings.46 "Whether an Ishikawa analysis is necessary depends on 44 We leave open to Zink the opportunity to ask the trial court for an in camera review ofthe evaluations to decide ifthey include nonexemptinformation subjectto disclosure. 

### 45 97 Wn.2d 30, 640 P.2d 716 (1982). UnderIshikawa, 

### (1)the proponentofclosure must make a showing of compelling need, (2) any person presentwhen the motion is made must be 

### given an opportunity to object, (3) the means of curtailing open access must be the least restrictive means available for 

### protecting the threatened interests, (4) the court mustweigh the competing interests ofthe public and ofthe closure, and (5) the order must be no broader in application or duration than necessary. John Doe 1 v. Prosecuting Att'v, 192 Wn. App. 612, 617, 369 P.3d 166 (2016) 

### (citing Ishikawa, 97 Wn.2d at37-39). 

### 46 Const, art. I, § 10 ("Justice in all cases shall be administered openly, and without unnecessary delay."). -15-No. 74354-6-1 (consol. w/No. 74355-4-I)/16 

### whether article I, section 10 applies."47 And "[wjhether article I, section 10 applies depends on application ofthe experience and logic test."48 Thus, we ask 

### whether, under the experience prong, "'the place and process have historically been open to the press and general public.'"49 We then ask whether, underthe 

### logic prong, "'public access plays a significant positive role inthe functioning of the particularprocess.'"50 The title of a complaint must "include the names of allthe parties."51 The 

### federal courts have a substantivelyidentical rule.52 But plaintiffs' real names have not "historicallybeen open to the press and general public" when the nature ofthe action shows that compelling them to use their real names would chilltheir exercise oftheir right to seek relief. Numerous 

### opinions from the Supreme Court53 and this court54 demonstrate this


### 47 Statev.S.J.C, 183 Wn.2d 408, 412, 352 P.3d 749 (2015). 48 S.J.C., 183 Wn.2d at 412-13 (citing In re Pet, of Morgan. 180 Wn.2d 312, 325, 330 P.3d 774 (2014)). 

### 49 S.J.C., 183 Wn.2d at 417 (internal quotation marks omitted) (quoting Morgan, 180Wn.2d at325). 

### 50 S.J.C., 183 Wn.2d at 430 (internal quotation marks omitted) (quoting Morgan, 180Wn.2d at325). 

### 51 CR 10(a)(1). 

### 52 Fed. R. Civ. P. 10(a). 53 John Doe v. Puget Sound Blood Ctr., 117 Wn.2d 772, 819 P.2d 370 (1991) (recipient of HIV-infected (human immunodeficiency virus) blood sought name of donor); John Doe v. Finch, 133 Wn.2d 96, 942 P.2d 359 (1997) (Doe sued psychologist for outrage over psychologist's romantic relationship with Doe's wife); John Doe v. Gonzaga Univ., 143 Wn.2d 687, 24 P.3d 390 (2001) (student sued university over investigation of sexual assault claims against him), rev'd, 536 U.S. 273, 122 S. Ct. 2268, 153 L. Ed. 2d 309 (2002); Jane Doe v. -16-No. 74354-6-1 (consol. w/No. 74355-4-I)/17 longstanding and previously uncontroversial practice in Washington. The experience prong thus shows that a routine and desirable practiceexists among Washington courts to allow parties, when appropriate, to proceed under pseudonyms. The logic prong also supports pseudonymity in this case. Certain circumstances require pseudonymity at the time a complaint is filed to allow Washington courts to provide any practical relief. While in general "[t]he people Dunning, 87 Wn.2d 50, 549 P.2d 1 (1976) (unwed mothersued to obtain certified copyofconventional birth certificatefor child). 54 See, e.g., John Doe v. Grp. Health Coop, ofPuget Sound, Inc., 85 Wn. App. 213, 932 P.2d 178 (1997) (employee brought UHCIA and invasion of privacy claims over health care provider's disclosure of name and consumer numbering intraining exercise on processing mental health claims); Jane Doe v. Boeing Co., 64 Wn. App. 235, 823 P.2d 1159 (1992) (transgender employee sued employer for disability discrimination), rev'd, 121 Wn.2d 8, 846 P.2d 531 (1993); John Doe v. Spokane & Inland Empire Blood Bank, 55 Wn. App. 106, 780 P.2d 853 (1989) (plaintiffs with AIDS (acquired immune deficiency 

### syndrome) brought class action suit against producers and distributors of blood products); Jane Doe v. Fife Mun. Court, 74 Wn. App. 444, 874 P.2d 182 (1994) (class of plaintiffs convicted of alcohol-related offenses sought to recover court 

### costs); John Doe v. Dep't of Transp., 85 Wn. App. 143, 931 P.2d 196 (1997) 

### (sexual harassment suit by ferry worker); Jane Doe v. Corp. of President of Church ofJesus Christ of Latter-Dav Saints, 141 Wn. App. 407, 167 P.3d 1193 

### (2007) (plaintiffs sued stepfather and church over alleged sexual abuse by stepfather). A number of unpublished opinions also reflect this practice. See Jane Doe v. Pierce County, noted at 125 Wn. App. 1017 (2005) (plaintiff requested 

### public records regarding employment office's investigation of her); John Doe v. Wash. State Bd. of Accountancy, noted at 150 Wn. App. 1036 (2009) 

### (accountant sought declaration that he had mental health disability covered by Americans with DisabilitiesActof 1990, 43 U.S.C. § 12101); John Doe v. Zvlstra. 

### No. 71123-7-1, (Wash. Ct. App. Feb. 9, 2015) (unpublished), 

### http://www.courts.wa.gov/opinion/pdf/711237.pdf) (patients sued medical clinic overemployee's intentional conduct). -17-No. 74354-6-1 (consol. w/No. 74355-4-I)/18 

### have a right to know who is using their courts," "[tjhere are exceptions."55 Washington courts have explained their reasoning only briefly. The Supreme 

### Court has noted that "a plaintiffmay proceed under a pseudonym to protect a 

### privacy interest."56 In one case, itadopted a substitute case name "[t]o avoid revealing the name ofeitherthe motherorchild" when the motherwas seeking a 

### birthcertificate.57 Where an employee sued hisemployerforsexual harassment, this court used a pseudonym "[bjecause ofthe nature ofthe allegations in th[e] 

### case."58 Ourcourts may nothave analyzed this issue beforebecausethe use of pseudonyms has gone unchallenged in these cases. They may not have addressed the issue because the measure's practical necessity is obvious. For example, in a case bearing some similarities to this one, an employee used a pseudonym in bringing UHCIA and invasion of privacy claims where his health



### care provider used his name and consumer number in a training exercise for 

### processing mental health claims.59 There, as here, the plaintiff opposed the disclosure of what he claimed was confidential health care information; and

55 John Doe v. Blue Cross &Blue Shield United ofWis.. 112 F.3d 869, 872 (7th Cir. 1997). 56N. Am. Council on Adoptable Children v. Dep't ofSoc. & Health Servs.. 108 Wn.2d 433, 440, 739 P.2d 677 (1987) (holding that court could not appoint 

### organization as guardian ad litem for unnamed children whom the organization did notknow and could notdescribe). 57Dunning. 87 Wn.2d at 50 n. 1. 58Dep'tofTransp.. 85 Wn. App. at 143 n.1. 

### 59 Grp. Health. 85 Wn. App. at214-15. -18-No. 74354-6-1 (consol. w/No. 74355-4-I)/19 there, as here, compelling the plaintiff to use his real name would have greatly impairedthe court's ability to provide relief. The federal appellate courts that have considered this matter all agree with this logic. Although federal law lacks a provision likeWashington's article I, 

### section 10, federal courts recognize parallel rights underthe First Amendment.60 We therefore look to those courts for guidance. The Eleventh Circuit has explained that pseudonyms are appropriate where "the injury litigated against 

### would be incurred as a resultofthe disclosure ofthe plaintiff's identity."61 To this end, federal courts have adopted balancing tests: the Eleventh, Tenth, and Fifth Circuits allow a plaintiff to proceed pseudonymously where "the plaintiff has a substantial privacy right which outweighs the customary and constitutionally

### embedded presumption ofopenness in judicial proceedings."62 The Ninth and Second Circuits askwhether"the party's need foranonymity outweighs prejudice 

### to the opposing party and the public's interest inknowingthe party's identity."63

60 Thomas Doe v. Stegall. 653 F.2d 180, 185 (5th Cir. 1981) ("First 

### Amendment guarantees are implicated when a court decides to restrict public scrutinyofjudicial proceedings."). 61 BillW. Doev. Frank. 951 F.2d 320, 324 (11th Cir. 1992). 62Jane Roe II v. Aware Woman Ctr. For Choice. Inc.. 253 F.3d 678, 685 

### (11th Cir. 2001); see M.M. v. Zavaras. 139 F.3d 798, 803 (10th Cir. 1998) (quoting Frank. 951 F.2d at 324); Stegall. 653 F.2d at 186 (applying substantively similarstandards). 63 Does IThru XXIII v. Advanced Textile Corp.. 214 F.3d 1058, 1068 (9th 

### Cir. 2000); Sealed Plaintiffv. Sealed Defendant. 537 F.3d 185, 189-90 (2d Cir. 2008) (providing nonexhaustive listoftenfactors). -19-No. 74354-6-1 (consol. w/ No. 74355-4-1) /20 Experience and logic thus show that allowing plaintiffs to proceed under pseudonyms does notimplicate article 1, section 10where the public's interest in the plaintiffs' names is minimal and use ofthose names would chilltheir ability to seek relief. Here, the trial court found that "[fjorcing [pjlaintiffs to disclose their identities to bring this action would eviscerate their ability to seek relief; thatthe plaintiffs demonstrated a significant risk of harm iftheir identities are disclosed; thatthe individual names "have littlebearing on the public's interestinthe dispute or its resolution"; thatpseudonymitywould notprejudicethe Department; thatthe plaintiffs' interests in anonymity outweighed the public's interest in knowing their names; and that "no reasonably viable alternatives" existed. While Zink assigns

errorto these findings, she does not explain howthey are incorrect. Nor did she submit evidence to contradict them. Our review of the record shows that substantial evidence supports the trial court's findings and thatthe trial courtdid 

### notabuse its discretion in applying the Ishikawafactors.64
Class Certification Zink also asserts that the PRA prohibited the trial court from certifying a class of level I sex offenders "who are either compliant with the conditions of 

### registration or have been relieved ofthe duty to register, and who underwent an evaluation to determine ifthey were eligible for a [SSOSA] after January 1,

64S.J.C.. 183 Wn.2d at412-13. -20-No. 74354-6-1 (consol. w/No. 74355-4-I)/21 

### 1990"65 v^ revjew statutory interpretation issues de novo66 and decisions to 

### certifyclasses ofplaintiffsforabuse ofdiscretion.67 Here, the trial courtproperly interpreted governing lawanddid notabuse itsdiscretion in certifying a class. Because "the PRA statutes do not create a special proceeding subjectto special rules," the normal civil rules apply to PRA proceedings.68 Thus, the rule governing class certification, CR 23, controls here. Courts interpret that rule 

### liberally.69 As Zink does not contend that the class certification did not comply with CR 23, thetrialcourtdid not errin certifying the class of plaintiffs unless the PRA prohibits class actions altogether. Itdoes not. 

### Zink relies on the PRA's statement that a court can enjoin disclosure "upon motion and affidavit by an agency or its representative or a person who is 

### named inthe record or to whom the record specifically pertains."70 Shedoes not



### 65 Considering the same argumentfromZink, the Supreme Court recently noted in John Doe A v. Washington State Patrol. 185 Wn.2d 363, 385-86, 374 P.3d 63 (2016), that "even if the class were improperly certified, a decision decertifying the class or remanding to the trial [court] would serve no purpose and would cost the litigants time and money, as the issue on which the class members broughtsuithas been decided." 

### 66City ofSpokanev. Rothwell. 166 Wn.2d 872, 876, 215 P.3d 162 (2009). 67 Millerv. FarmerBros. Co.. 115Wn. App. 815, 820, 64 P.3d 49 (2003). 68 Neigh. All, of Spokane County v. County of Spokane. 172 Wn.2d 702, 716,261 P.3d 119(2011). 69 Moeller v. Farmers Ins. Co. of Wash.. 173 Wn.2d 264, 278, 267 P.3d 998(2011). 70RCW42.56.540. -21-No. 74354-6-1 (consol. w/ No. 74355-4-1) / 22 dispute that the class of plaintiffs are named in their SSOSA evaluations or that theevaluations specifically pertain to them. We construe the class action rule "liberally in favor of permitting 

### certification."71 When a court certifies a class, the representative plaintiffs stand in for all othermembers ofthe class; those members are treated as parties to the 

### litigation.72 A decision in the case then binds all unexcluded members of the class.73 Because the plaintiffs represent an entire class, even statutes the 

### legislature phrases in individual terms allow for class actions.74 The plaintiffs herecanthusform a classto bring this PRAaction.75 Temporary Restraining Orderand Preliminary Injunction Zink asks that we decide the proper standard for issuing a preliminary 

### injunction in a PRA case. That issue became mootwhen the trialcourt issued a 

### permanentinjunction.76 We decline toaddress it.

71 Sitton v. State Farm Mut. Auto. Ins. Co., 116 Wn. App. 245, 256, 63 P.3d 198(2003). 

### 72 Sitton, 116Wn. App. at 250. 73 CR 23(c)(3). 74 See Smith v. Behr Process Corp., 113 Wn. App. 306, 346, 54 P.3d 665 

### (2002) (allowing relief for represented class members, not merely named plaintiffs, even though the Consumer Protection Act, ch. 19.86 RCW, authorizes relief forthose who "bring a civil action," RCW 19.86.090); Califano v. Yamasaki, 442 U.S. 682, 700-01, 99 S. Ct. 2545, 61 L. Ed. 2d 176 (1979) (allowing for class certification underfederal rules even where statute refers to an "individual"). 75 RCW42.56.540. 76 See State ex rel. Carroll v. Simmons, 61 Wn.2d 146, 149, 377 P.2d 421 (1962). -22-No. 74354-6-1 (consol. w/ No. 74355-4-1) / 23

Fees and Costs 

### Finally, becauseZinkdoes not prevail in this appeal, we deny herrequest forappellatecosts underRAP 14.1. Andbecausethe respondentsdo notaskfor attorneyfees, we do not award them anyeither.
CONCLUSION 

### We affirmthetrial courtorderenjoining disclosure of level Isex offenders' SSOSA evaluations.

WE CONCUR: 

# C&%Y~3

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