Jeffrey Payne, Appellant V Jamie Janssen, Dshs, Respondents

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
JAMIE JANSSEN, No. 50412-0-II
Respondent,
UNPUBLISHED OPINION
v.
DEPARTMENT OF SOCIAL AND HEALTH
SERVICES,
Respondent,
and
JEFFREY PAYNE,
Appellant.
MAXA, C.J. – Jeffrey Payne appeals the trial court’s entry of a temporary restraining
order (TRO) and a subsequent permanent injunction enjoining the Department of Social and
Health Services (DSHS) from releasing records he had requested under the Public Records Act
(PRA) regarding DSHS employee Jamie Janssen. Payne is a sexually violent predator (SVP)
involuntarily committed to the Special Commitment Center (SCC) on McNeil Island, where
Janssen works in food service. After Janssen learned that Payne had submitted multiple PRA
requests relating to her personally, she sought an injunction to enjoin DSHS from responding to
Payne’s current PRA request and to enjoin future requests pertaining to her.
Filed
Washington State
Court of Appeals
Division Two
March 19, 2019

No. 50412-0-II
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RCW 42.56.540 generally allows a court to enjoin the release of public records exempt
from disclosure under the PRA if certain requirements are met. RCW 71.09.120(3) allows a
court to enjoin the inspection of nonexempt public records by SVPs residing in a civil
commitment facility through procedures identified in RCW 42.56.565. Under RCW
42.56.565(2)(c)(i), a court can enjoin the inspection of nonexempt public records if a PRA
request was made to harass or intimidate an agency employee.
We hold that (1) Payne’s challenge to issuance of the TRO is moot; (2) because no
preliminary injunction hearing was required under RCW 42.56.565(4), the trial court was not
required to conduct a preliminary injunction hearing before issuing the permanent injunction; (3)
the absence of an applicable PRA exemption is immaterial because RCW 71.09.120(3) and
RCW 42.56.565(2)(c)(i) allow the trial court to enjoin the release of nonexempt public records to
SVPs residing in a civil commitment facility if the PRA request was made to harass an agency
employee; (4) substantial evidence supported the trial court’s finding that Payne’s PRA requests
were made to harass Janssen and therefore the permanent injunction was warranted under RCW
71.09.120(3) and RCW 42.56.565(2)(c)(i); and (5) DSHS did nothing improper in supporting
Janssen’s position during the injunction proceedings. However, we hold that the permanent
injunction is overbroad to the extent that the injunction applied to any PRA request submitted by
any person, but not to the extent that the injunction applied to Payne and his civil commitment
attorney.
Accordingly, we affirm the issuance of the permanent injunction, but we remand for the
trial court to modify the permanent injunction against DSHS to apply the injunction only to the
disclosure of personal information regarding Janssen to Payne and persons under his control,
including his civil commitment attorney.

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3
FACTS
Payne is an SVP involuntarily committed to SCC. SCC is a secure civil commitment
facility that provides for the commitment and treatment of SVPs pursuant to chapter 71.09 RCW.
DSHS employed Janssen as a food service supervisor at SCC. Payne worked in the
kitchen and began acting inappropriately toward Janssen. He was suspended from working in
the kitchen in December 2015 after an incident where he attempted to give Janssen a gift. Payne
returned to work in the kitchen after a meeting with SCC food managers and Janssen where he
apologized to her.
Payne’s behavior toward Janssen after his return to work continued to be inappropriate.
He was suspended again in February 2016 because of this behavior, and he later was moved
from the evening shift to the morning shift so that he would not be working at the same time as
Janssen. In April, SCC management terminated Payne from the food service department because
he insisted that he be returned to the same shifts as Janssen, made a false statement to his
supervisor that Janssen had approved his return to her crew, and attempted to get Janssen’s
attention by staring at her in the dining hall during her shifts.
On April 20, SCC entered a contact restriction against Payne, restraining him from
contacting Janssen in any way or coming within 30 feet of her. On April 26, Payne violated the
contact restriction by sitting on a bench near where Janssen and other employees had to pass
when leaving SCC.
Janssen documented these instances and reported them to SCC management, including
Payne’s therapist, SCC chief of resident treatment Dr. Elena Lopez.
In August, Payne filed a lawsuit against Janssen and various other SCC personnel in
which he represented himself. Payne demanded in his complaint that he be reinstated to his

No. 50412-0-II
4
former position, returned to the same shifts as Janssen, and granted a one-on-one meeting with
Janssen. The superior court dismissed this lawsuit.
Payne then began submitting public records requests to DSHS, seeking videotape footage
of Janssen’s work area during her shifts. Between January 1 and February 24 of 2017, he
submitted a total of 14 PRA requests for either video footage of Janssen’s work area or her
scheduling information. DSHS released some video footage to Payne pursuant to some of these
requests without notifying Janssen.
On February 24, Payne submitted a PRA request to DSHS for Janssen’s work time sheets
from December 2015 through February 2017. On February 28, DSHS notified Janssen for the
first time that she was the subject of a PRA request by Payne. DSHS informed Janssen it would
release the records to Payne unless she asked the court to block the release under RCW
42.56.540 before March 20.
On March 8, representing herself, Janssen petitioned the trial court for a stalking
protection order against Payne. The trial court apparently informed her at the hearing on that
petition that she instead would need to file a motion to enjoin release of the records under the
PRA. By March 16, Janssen had retained legal counsel, who wrote to DSHS asking for an
extension of their March 20 release deadline to April 7 to allow Janssen time to prepare her
petition. DSHS granted this request. On March 30, Janssen filed a motion with the trial court
under RCW 42.56.540 to enjoin DSHS from releasing her records to Payne pursuant to his PRA
requests. An injunction hearing was set for April 27.
On April 3, Janssen filed a motion for a TRO to prevent DSHS’s release to Payne of any
records relating to Janssen pending the hearing on the merits set for April 27. Janssen sent email
notice of the TRO hearing to DSHS’s counsel. But Janssen informed the court that service on

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Payne would require the process server to first obtain security clearance from McNeil Island and
that this procedure was underway. Janssen also stated that she was attempting to obtain Payne’s
telephone number.
The TRO hearing was held on April 4. The trial court granted the TRO, finding good
cause to issue the TRO without notice to Payne and good cause to extend the TRO past 14 days
until a hearing on the merits.
On April 25, DSHS submitted its response to Janssen’s petition and did not oppose entry
of a permanent injunction. DSHS submitted a declaration from Dr. Lopez in support of a
permanent injunction. Dr. Lopez recounted Payne’s history of inappropriate behavior toward
Janssen and the no-contact restriction that SCC had placed on Payne. She concluded, “Mr.
Payne has remained hyperfocused on Ms. Janssen and this obsession has prevented Mr. Payne
from progressing in treatment due to an inability to move beyond and process the previous
interactions with Ms. Janssen.” Clerk’s Papers (CP) at 154. Payne, representing himself,
submitted a response.
A hearing on the permanent injunction was held on April 27. The trial court heard oral
argument from counsel for both Janssen and DSHS. Payne attended the hearing telephonically,
and asserted at length that the purpose of his public records requests was to defend himself
against allegations that negatively affected his treatment at SCC.
The trial court entered an order issuing a permanent injunction and restraining order
against DSHS and Payne. The court entered findings of fact, which included:
5. . . . The Declaration of Dr. Lopez supports that the respondent, Jeffrey Payne,
has an obsession with Jamie Janssen that is contra-therapeutic such that fulfilling
his public records act request impacts a primary mission of the function of the
facility;

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6. The petitioner has demonstrated that the stalking, harassment and obsession with
her by the Respondent, Jeffrey Payne, has caused her fear and anxiety, has
adversely affected her health, well-being, and has seriously impacted her ability to
perform her work.
CP at 158. Further, the court made a factual finding, denominated as a conclusion of law, that
“the records are sought solely to harass, intimidate and stalk Jamie Janssen; and that the request
has no legitimate public purpose.” CP at 159. Based on these findings, the court concluded that
the showing required under RCW 42.56.565 and RCW 71.09.120(3) to obtain an injunction had
been made.
The trial court restrained and permanently enjoined DSHS from divulging any public
records or personal or confidential information regarding Janssen in response to any PRA
request. The injunction applied to the disclosure of such information to any person, including,
but not limited to, Payne, his attorneys, agents, and assigns. The court also restrained and
permanently enjoined Payne from requesting any information regarding Janssen from any source
and requesting any information regarding Janssen through a third party.
Payne appeals the trial court’s entry of the TRO and the permanent injunction.
ANALYSIS
A. ENTRY OF TRO
Payne argues that the TRO that the trial court issued was void because he received no
notice of the hearing and because the trial court extended the TRO beyond 14 days. He also
argues that the TRO never should have been issued because it was obtained based on Janssen’s
representation that he was an “inmate” instead of a resident at SCC. We hold that Payne’s
challenge to the TRO is moot.
An issue is moot if we no longer can grant effective relief. SEIU Healthcare 775NW v.
Gregoire, 168 Wn.2d 593, 602, 229 P.3d 774 (2010). Here, the TRO was a temporary order that

No. 50412-0-II
7
expired at the time of the April 27 hearing and was replaced by a permanent injunction that
Payne has appealed. And Payne has not provided any authority for the proposition that a ruling
on appeal that the TRO was defective somehow would require reversal of the permanent
injunction. Therefore, even if we held that the trial court erred in issuing the TRO, that holding
would have no effect on the outcome of this case.
We decline to address Payne’s challenge to the TRO because the issues he raises are
moot.
B. ENTRY OF PERMANENT INJUNCTION
Payne argues that the permanent injunction should not have been issued because (1) there
was no discovery or preliminary injunction hearing, (2) the court did not find that an exemption
to the PRA applied, (3) Janssen produced no evidence that he was making the requests for the
purpose of harassing her, and (4) DSHS improperly supported Janssen’s position during the
injunction proceedings.1 We disagree.
1. Legal Principles
The PRA mandates the broad disclosure of public records. Resident Action Council v.
Seattle Hous. Auth., 177 Wn.2d 417, 431, 327 P.3d 600 (2013). Under RCW 42.56.070(1), “a
government agency must disclose public records upon request unless a specific exemption in the
PRA applies or some other statute applies that exempts or prohibits disclosure of specific
information or records.” SEIU Healthcare 775NW v. Dep’t of Soc. & Health Servs., 193 Wn.
App. 377, 391, 337 P.3d 214 (2016).
1 In his statement of issues, Payne references “due process” when making these arguments.
However, he presents no argument or citation to authority regarding due process. Therefore, we
do not address any constitutional argument.

No. 50412-0-II
8
Under RCW 42.56.540, the trial court may enjoin the release of records in certain
circumstances.
The examination of any specific public record may be enjoined if, upon motion and
affidavit by . . . a person who is named in the record or to whom the record
specifically pertains, the superior court . . . finds that such examination would
clearly not be in the public interest and would substantially and irreparably damage
any person, or would substantially and irreparably damage vital governmental
functions.
RCW 42.56.540. We conduct a two-part inquiry when an injunction is sought under RCW
42.56.540: (1) “determine whether the records are exempt,” and (2) “determine whether the PRA
injunction standard is met.” Lyft, Inc. v. City of Seattle, 190 Wn.2d 769, 790, 418 P.3d 102
(2018).
The PRA also allows a court to enjoin inspection and copying of nonexempt records by
“persons serving criminal sentences in state, local, or privately operated correctional facilities.”
RCW 42.56.565(2). In addition, RCW 71.09.120(3), states, “The inspection or copying of any
nonexempt public record by persons residing in a civil commitment facility for sexually violent
predators may be enjoined following procedures identified in RCW 42.56.565.”
To enjoin the release of records under RCW 42.56.565(2)(c), the court must find that
(i) The request was made to harass or intimidate the agency or its employees;
(ii) Fulfilling the request would likely threaten the security of correctional facilities;
(iii) Fulfilling the request would likely threaten the safety or security of staff,
inmates, family members of staff, family members of other inmates, or any other
person; or
(iv) Fulfilling the request may assist criminal activity.
The injunction may be requested by a person named in the record or a person to whom the
request specifically pertains. RCW 42.56.565(2)(a).

No. 50412-0-II
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2. Discovery Before Issuance of Injunction
Payne argues that he should have been allowed to conduct discovery before the
permanent injunction was entered. But Payne raises his alleged inability to conduct discovery
for the first time on appeal.
Generally, we will not consider an issue raised for the first time on appeal unless the
party claiming the error can show that an exception applies. RAP 2.5(a); In re Marriage of
Sprute, 186 Wn. App. 342, 354 n.3, 344 P.3d 730 (2015). Payne made no objection to the trial
court regarding discovery, and does not claim on appeal that any exception under RAP 2.5(a)
applies. Therefore, we decline to consider this issue.
3. Absence of Preliminary Injunction Hearing
Payne argues that the trial court was required to hold a separate preliminary injunction
hearing before conducting a permanent injunction hearing and issuing a permanent injunction.
We disagree.
Payne relies on CR 65(b), which states that if a TRO is granted without notice, “the
motion for a preliminary injunction shall be set down for hearing at the earliest possible time.”
Further, CR 65(b) states that if the party that obtains the TRO does not proceed with an
application for a preliminary injunction, the TRO must be dissolved. Payne argues that because
Janssen did not proceed with an application for a preliminary injunction, the trial court was
required to dissolve the TRO and dismiss the case.
However, CR 65 does not state that a trial court must hold a preliminary injunction
hearing before conducting a permanent injunction hearing. In fact, CR 65(a)(2) expressly
contemplates that a court may consolidate the preliminary injunction hearing with a trial on the

No. 50412-0-II
10
merits. Payne cites no other authority for the proposition that the trial court was required to hold
a preliminary injunction hearing before the permanent injunction hearing.
In addition, RCW 42.56.565(4) provides a special process for enjoining the release of
public records to SVPs residing in civil commitment facilities. RCW 42.56.565(4) states that a
motion for an injunction under RCW 42.56.565(2) “shall be a summary proceeding based on
affidavits or declarations, unless the court orders otherwise. Upon a showing by a preponderance
of the evidence, the court may enjoin all or any part of a request or requests.” RCW
42.56.565(4) does not state that a trial court must hold a preliminary injunction hearing before
moving forward with the “summary proceeding” authorized by that statute. And “the rapidity
envisioned by RCW 42.56.565(4) likely renders moot any need for a preliminary injunction.”
Dep’t of Corr. v. McKee, 199 Wn. App. 635, 650, 399 P.3d 1187 (2017).
Payne also argues that a trial court cannot consolidate a preliminary injunction hearing
with a permanent injunction hearing unless the court expressly informs the parties that
consolidation will occur. However, as noted above, RCW 42.56.565(4) does not contemplate
that a trial court will hold a preliminary injunction hearing before conducting the “summary
proceeding” authorized under that statute.
We hold that under RCW 42.56.565(4), the trial court was not required to hold a
preliminary injunction hearing before conducting a hearing for and issuing the permanent
injunction.
4. Lack of PRA Exemption
Payne argues that the trial court was required to find that a PRA exemption applied
before entering the permanent injunction and that no such exemption applied to the facts here.
We disagree.

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A trial court must determine that a PRA exemption applies before issuing an injunction
under RCW 42.56.540. Lyft, 190 Wn.2d at 790. However, RCW 71.09.120(3) and RCW
42.56.565(2) expressly authorize injunctions that apply to nonexempt public records. Therefore,
we hold that the trial court was not required to find that a PRA exemption applied before issuing
the permanent injunction.
5. Evidence of Intent to Harass
Payne argues that Janssen submitted no evidence that he was using the PRA requests to
harass her. We disagree.2
The general rule is that we review de novo a trial court’s decision granting an injunction
issued under the PRA. Lyft, 190 Wn.2d at 791. One of the grounds for enjoining the release of
records to SVPs in a civil commitment facility is that the PRA request was made to harass or
intimidate an agency’s employees. RCW 42.56.565(2)(c)(i); RCW 71.09.120(3). The trial court
made a factual finding that “the records are sought solely to harass, intimidate and stalk”
Janssen. CP at 159
Here, Janssen submitted a large amount of evidence to support the conclusion that
Payne’s PRA requests had been made in order to harass her. This evidence was in the form of
SCC observation, behavior management, and resident job performance reports; Payne’s 14 PRA
requests relating to Janssen; email exchanges between DSHS/SCC staff regarding Payne’s PRA
requests; Janssen’s email correspondence with Payne’s therapist Dr. Lopez; the SCC contact
restriction; Payne’s August 2016 lawsuit against SCC and Janssen’s response; SCC’s 2015
2 The trial court also concluded that the other three grounds in RCW 42.56.565(2)(c) supported
issuance of the permanent injunction. However, RCW 42.56.565(2)(c) is disjunctive; only one
of the grounds is necessary to issue an injunction. Because we hold that the PRA requests were
made to harass Janssen, we need not address the other grounds.

No. 50412-0-II
12
annual review of Payne’s treatment progress; Payne’s letter to SCC management accusing
another resident of stalking Janssen and requesting a one-on-one meeting with her; and Janssen’s
initial petition for a stalking protection order against Payne.
This evidence showed that Payne had developed an obsession with Janssen, that his
behavior toward her had been inappropriate and threatening, that Payne continued seek out
contact with Janssen despite termination from his food service job and the entry of an SCC
contact restriction order, and that his PRA requests were concerning because they sought both
video footage of her work area and time records of her shifts.
Payne claims that his actual motive in making the PRA requests relating to Janssen was
to defend himself in an SCC investigation triggered by allegations Janssen was making against
him. But there is no evidence to support Payne’s contention that his PRA requests were intended
to mount a defense against an alleged investigation at SCC prompted by Janssen’s reports of his
behavior. Payne did not submit any “affidavits or declarations” as contemplated by RCW
42.56.565(4). He merely made allegations during argument at the permanent injunction
hearing.3
We hold that based on our review of the record, the trial court did not err in finding that
Payne’s PRA requests were made to harass Janssen. And we hold that this finding supported the
trial court’s issuance of a permanent injunction under RCW 71.09.120(3) and RCW
42.56.565(2)(c)(i).
3 Payne also argues that enjoining the release of records pertaining to Janssen because it would
be contraindicated to his therapy at SCC was not a valid reason for the trial court to issue the
injunction. One of the trial court’s findings of fact states that fulfilling serial PRA requests
would be “counter-therapeutic to the residents.” CP at 158. But the court’s conclusions of law
show that the court did not rely on this finding to support issuance of the injunction.

No. 50412-0-II
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6. DSHS Supporting Janssen’s Position
Payne argues that DSHS improperly supported Janssen’s position during the injunction
proceedings. But DSHS was a necessary party to this action because it was the government
agency from which Payne requested public records. RCW 42.56.565; RCW 42.56.540; RCW
71.09.120. Payne cites no authority suggesting that a state agency that is the subject of a PRA
request must oppose an action to enjoin release of the requested records. In fact, the agency
itself may seek such an injunction under RCW 42.56.565(2)(a)(i) and RCW 71.09.120(3)(a).
Therefore, we reject this argument.
C. SCOPE OF PERMANENT INJUNCTION
Payne argues that the permanent injunction’s terms are overly broad. He claims that the
trial court erred in applying the injunction to any person requesting records regarding Janssen,
and specifically to his civil commitment attorney. We agree that the permanent injunction is
overbroad to the extent that the injunction applied to any PRA request submitted by any person,
but not to the extent that the injunction applied to Payne’s civil commitment attorney.
Under RCW 71.09.120(3), a trial court may enjoin inspection or copying of public
records “by persons residing in a civil commitment facility for sexually violent predators” based
on the procedures in RCW 42.56.565. Here, the trial court’s injunction against DSHS was not
limited to the inspection or copying of records by Payne. Instead, the court permanently
enjoined DSHS from “[d]ivulging any public records or personal and confidential information
regarding Jamie Janssen in response [to a] public record request.” CP at 160. In the next
paragraph the court emphasized that such information could not be disclosed to any person,
“including but not limited to Jeffrey Payne, his attorneys, agents, and assigns.” CP at 160
(emphasis added).

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RCW 71.09.120(3) and RCW 42.56.565(2) authorize a trial court to issue an injunction
that applies only to an SVP residing in a civil commitment facility. Those statutes do not
authorize an injunction that applies to any PRA request submitted by any person. Therefore, this
portion of the permanent injunction was overbroad.
Under RCW 42.56.565(4), the trial court may “enjoin, for a period of time the court
deems reasonable, future requests by: (a) [t]he same requestor; or (b) [a]n entity owned or
controlled in whole or in part by the same requestor.” As noted above, the injunction against
DSHS applied to disclosure of records to Payne as well as to his “attorneys, agents, and assigns.”
CP at 160. The injunction against Payne prohibited him from “[r]equesting any information
regarding [Janssen] from any source” but also from “[r]equesting any information regarding the
petitioner through a third party, regardless whether those third parties know of the order.” CP at
161.
Payne challenges the application of these provisions to his civil commitment attorney.
He relies on CR 65(d), which states that an injunction is binding only against “the parties to the
action, their officers, agents, servants, employees, and attorneys, and upon those persons in
active concert or participation with them.” Payne apparently believes that “attorneys” refers to
attorneys in the injunction action.
However, to the extent that Payne’s attorney is working on his behalf, he would qualify
as an entity controlled by Payne for purposes of RCW 42.56.565(4). And Payne’s attorney also
would qualify under CR 65(d) either as Payne’s attorney or as a person in active concert or
participation with him. Therefore, we conclude that the permanent injunction is not overbroad in
this respect.

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We hold that the permanent injunction was overbroad to the extent that the injunction
against DSHS applied to any PRA request submitted by any person, but not to the extent that the
injunction applied to Payne’s civil commitment attorney.
D. ATTORNEY FEES ON APPEAL
Janssen argues she is entitled to reasonable attorney fees because Payne’s appeal in this
action is frivolous. We decline to award attorney fees to Janssen on appeal.
Under RAP 18.9(a), we may sanction a party who files a frivolous appeal. “An appeal is
frivolous when, considering the entire record and resolving all doubts in favor of the appellant, it
does not present any debatable issues about which reasonable minds might differ and ‘is so
devoid of merit that there is no possibility of reversal.’ ” Dewitt v. Mullen, 193 Wn. App. 548,
560, 375 P.3d 694 (2016) (quoting Advocates for Responsible Dev. v. W. Wash. Growth Mgmt.
Hr’gs Bd., 170 Wn.2d 577, 580, 245 P.3d 764 (2010)).
Some of Payne’s arguments are weak and certainly some of them are frivolous. But he
prevailed on his argument about the overbreadth of the permanent injunction. We decline to
award reasonable attorney fees to Janssen.
CONCLUSION
We affirm the issuance of the permanent injunction, but we remand for the trial court to
modify the permanent injunction against DSHS to apply the injunction only to the disclosure of
personal information regarding Janssen to Payne and persons under his control, including his
civil commitment attorney.

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A majority of the panel having determined that this opinion will not be printed in the
Washington Appellate Reports, but will be filed for public record in accordance with RCW
2.06.040, it is so ordered.
MAXA, C.J.
We concur:
JOHANSON, J.
LEE, J.