DSHS urges court to shield third‑party records under state privacy statute

Assistant Attorney General Joshua Sherr told the court that the state Department of Social and Health Services should obtain discretionary review to protect third‑party information from disclosure under RCW 74.04.060. "The department has voluminous records in this case that involve third party individuals with sensitive private information that the department has sought to withhold," Sherr said, arguing the statute covers applicants and recipients of DSHS services.

Plaintiff counsel James Chong, representing the guardians of Shereen Anderson, countered that the department repeatedly failed to comply with discovery orders and that plaintiffs deserve timely closure. Chong described Anderson as "a developmentally disabled adult who suffered abuse and neglect for the last nine years of her life under care of DSHS and Provail," and said the guardians seek resolution after years of litigation.

The hearing centered on whether redacting personal identifying information (PII) — such as Social Security numbers and birth dates — would protect third parties while preserving the usefulness of the record, or whether broader categories of care‑related information are privileged under RCW 74.04.060. Sherr said the trial court's August order limited redactions to narrow PII categories and that the department believes the statute protects much more than names and numbers, including "intimate details of their lives" and details of care.

Counsel disputed whether the trial court had adequate privilege logs and whether the court performed in camera review. Sherr said privilege logs had been provided to plaintiffs' counsel by October 6 but were not filed in the appendix, and that the trial court reviewed a sample of documents (about 200 pages) which informed the November 3 order. Chong said the state had produced thousands of pages that were wholly redacted, rendering privilege logs ineffective in many instances.

Both sides invoked the pending JMI matter before the Washington Supreme Court as potentially instructive on the scope of RCW 74.04.060. Sherr said the Supreme Court's decision could guide application of the statute here; Chong argued JMI would not resolve statutory claims based on multiple other statutes the state has invoked.

The parties also disputed interlocutory review of a sanctions order. Sherr asked the court to consider review because sanctions and enforcement are ongoing; Chong and the presiding judge discussed the ordinary practice of waiting for final judgment on monetary sanctions and whether the "effects" prong for discretionary review was satisfied in this case.

Throughout the argument counsel described the scale and logistical burden of the production: counsel referenced millions of pages of potentially responsive material, "11,000 spreadsheets," and teams of document‑review attorneys working extended hours; both sides described deduplication and a November 26 order that narrowed some aspects of production but left redaction and privilege disputes unresolved.

The presiding judge thanked counsel and said the court would issue a written ruling. "I will issue a written ruling," the judge said, and the hearing concluded.

What happens next: The appellate court will issue a written decision on whether to accept discretionary review and whether to stay enforcement of the trial court's discovery and sanctions orders; the Supreme Court's decision in JMI may also inform the outcome.