Attorneys fighting a request to release the names of all level 1 sex offenders in Cowlitz County are making a novel — and perhaps long-shot — legal argument to the state Court of Appeals.
Judges should take into account the motives of Kelso resident Curtis Hart, a sex offender vigilante who filed a state public records request for the list of offenders’ names months ago, a motion to the Washington Court of Appeals argues.
It’s an assertion that First Amendment advocates hope will fail.
The argument sets up this conflict: Should the public’s right to know information that could affect its safety be impinged if the person requesting it has objectionable motives? How much of a clear and immediate threat does someone have to pose before agencies are justified in withholding information that could be used to commit a crime?
Lawyers for the sex offenders are asking the appeals court to delay release of the records, which Cowlitz County Superior Court Judge Stephen Warning ruled last month should be released. A ruling could take place in weeks or months.
If the court upholds Warning’s decision, the records will likely be released. It could reverse Warning’s ruling and find the information exempt from public disclosure. Or it could send the case back to Warning for further consideration.
Hart has been fighting for months to obtain the names, birth dates, addresses and photographs of the level 1 offenders, which are considered the least likely to reoffend. He’s acknowledged he intends to publish the names and has said that “sex predators deserve scorn.” He said he has no intent to do anything else with the records. But some of the offenders, listed as “John Does” in the case, have gone to court to stop the release. They say it will subject them to harassment and job loss — in some cases, years after their offenses.
Without endorsing Hart’s motives, advocates of open government say Hart’s records request should be granted.
Rowland Thompson, executive director of Allied Daily Newspapers of Washington, said Friday he’s “a little bit” worried about the precedent that would be set by using Hart’s motive as a basis for withholding the sex offender list.
“I don’t know what his intentions are,” Thompson said. “You don’t know what his intentions are, and the attorneys don’t know what his intentions are. ... The police keep (the list) for a reason, and the reason is public safety. They give that information out. It’s discretionary to a great extent, but they give it out. And once you start giving that info out, it’s really hard to tell people they can’t have it.”
And even if Hart’s request was denied, “I would imagine he’s got a lot of sympathetic mothers in the county that would ask (on his behalf),” Thompson said.
“I would be really surprised” if the court actually agreed to withhold the information, Thompson said. “It’s (already) in circulation. ... They give those records out routinely to people who live near those guys.”
(Information on level 2 and 3 sex offenders is already published by the state Association of Sheriffs and Police Chiefs, but information on level 1 offenders must be requested.)
In court, Judge Warning acknowledged that Hart is likely to “misuse the information in childish, immature, and offensive ways that would likely be harmful to (the registered offenders),” but those concerns did not justify withholding public information.
If there is a concern that Hart’s request could endanger the offenders, that’s a job for the Legislature to contend with, Warning said, because sex offender registration records are squarely included under the Public Records Act.
But he acknowledged the law may be uncertain on the matter, and he blocked the release of the records until the higher court made its own call.
The lawyer for the “John Does,” Josh Baldwin of Longview, did not return calls for comment on the case. But in filings appealing Warning’s decision to the state Appeals Court, he argued that Hart’s “intent to abuse the information” justifies withholding it, at least until a higher court gets a crack at the case.
Michelle Earl-Hubbard, a Seattle-based media law attorney and the president of Allied Law Group, said it’s a “very hard sell” to argue that records considered public should be kept secret.
“There is nothing that is secret in that registration ... except perhaps victim identities,” Earl-Hubbard said Tuesday. “To say this person may be getting public records and using them in a way (others) may not like ... is basically punishing someone before they’ve committed a crime.”
In Baldwin’s Nov. 26 motion to delay Hart’s request, he cites DeLong v. Parmelee. In that 2010 case, the state Court of Appeals found agencies generally cannot ask or consider the intents of those who request records. However, the court ruled that the government might be able to consider intent “when the requester announces an explicit and volunteered threat.”
Parmelee was an incarcerated felon and thus, under the law, has reduced rights to request public records, Thompson said.
Hart is a controversial figure himself, especially with police.
Attorneys for the sex offender “John Does” in October cited an image posted to Hart’s “Punisher Squad” Facebook page of a baseball bat wrapped in barbed wire accompanied by a caption that reads, “Liberals: you can’t just wave a magic wand and make pedophilia disappear.”
Police and justice officials have expressed concern over Hart’s vigilante arrests through his so-described “Punisher Squad,” through which he has baited several-would be sex offenders and gotten at least three arrested and charged.And Judge Warning noted that the courts issued a lifetime restraining order against Hart for harassing a convicted sex offender and the offender’s parents. Such behavior “is likely to be repeated by Mr. Hart if he is given access to the records requested,” Warning noted.
Hart has said he doesn’t plan on “misusing” public records — only “publishing (them). That is it.”
Court precedent seems well on Hart’s side. The threat that someone will create mischief in itself does not mean public records can be withheld.
For example, in the 2002 King County v. Sheehan case, the Court of Appeals found that two records requesters who maintained controversial websites criticizing Washington police agencies were nonetheless entitled to get the full name and rank of every police officer employed by King County.
The court concluded: “Sheehan and Rosenstein’s websites are controversial, incendiary, and offensive to many. Nevertheless, the public records act requires agencies to ignore the identity of the requester, and to focus on the information itself in determining whether it is exempt from disclosure.”
“You don’t presume that someone’s going to commit a crime with them and … preempt access to them getting them,” Hubbard said. “You have to commit the supposed crime, and then you can go and punish them if that’s the case.”