Information on Level I Sex Offenders
On April 7, 2016, in a 7-2 opinion, the Washington State Supreme Court ruled that a Public Records Act (“P.R.A”) request trumps concepts of privacy, decency and common sense. Until this decision, “Level I sex offenders” (least likely to reoffend or present danger to community at large) were treated much differently than Level 2 or 3 offenders. Currently, more than 2/3rds of registered offenders in Washington State cannot be located in internet searches by the public. Historically, Level I offenders would not show up on an internet search or be subject to community notification. For a juvenile offender, this is often critical for them moving on with their lives, including college attendance or integrating into the employment market.
The community notification aspect by local law enforcement may be intact, but after the Court’s ruling in John Doe v Washington State Patrol, et.al. Donna Zink, the genie may be out of the bottle concerning the Level I status being available to the public.
While the State may argue the policy or theory of sex offender registration differently, the registration system as it currently stands was upheld in State v. Ward, 123 Wn.2d 488 (1994) in large part because the Level I offenders’ registration requirement was not put on the internet or otherwise easily accessible by the public.
Ms. Zink, the individual seeking the list of Level I offenders from the Washington State Patrol, will now receive the entire list of Level I sex offenders. There is reporting that she intends to upload the information on a searchable database. The Supreme Court denied Ms. Zink’s request for financial penalties and attorney fees. It is conceivable she may make her website one where a fee will be charged for entry, similar to many criminal history sites that charge a fee.
The Supreme Court, at page 19 of the Zink decision, appears to ignore an incredible loophole created by recognizing a P.R.A. request for information that, since the Ward decision, has not been available to the public. The Courts holding seems to beg for a legislative solution: “We hold [in Ward]…that because the Legislature has limited the disclosure of registration information to the public (RCW 4.24.550) the statutory scheme does not impose additional punishment on registrants. Ward, at 502. With a blind eye to the future consequence, the Zink court held “nothing in Ward dealt with an agency’s response to a public records request.” Zink, at 19.
The Zink court notes findings and recommendations of the Sex Offender Policy Board (at page 20) which would specifically exempt Level I offender information from public record disclosure under RCW 42.56. The Zink court recognizes that if the legislature “had these recommendations…adopted, our decision… would likely be different.” Zink, at 21.
Clearly, the Zink court takes a statutory construction approach, ignoring the ex post facto problems of sex offenders receiving additional punishment by ignoring the Ward analysis that a registry meant only for the Washington State Patrol was not punishment.
Unless the Washington Legislature fixes this problem, and makes Level I sex offender records an explicit exception to the P.R.A., there is potentially going to be a huge negative impact on thousands of low risk offenders. Of course, it is potentially a Pandora’s box if the legislature makes such a fix after Ms. Zink has those records. A huge questions remains: can the legislature “fix” a problem if Ms. Zink already has the names of all present Level I offenders?
A copy of the Zink opinion may be obtained by going to the following link:
https://www.courts.wa.gov/opinions/pdf/904138.pdf
If you have a criminal matter you would like to consult with a lawyer about, including sex offender registration issues, please contact Jan Olson at Ellis, Li & McKinstry, PLLC at (206) 682-0565.