JIS Data Dissemination Committee
October 26, 2007
Judge Wynne called the meeting to order at 9:00 a.m., and introductions were made.
Motion: A motion was made, seconded, and unanimously carried to approve the
June 29, 2007 meeting minutes as written.
RETENTION POLICY WORK GROUP UPDATE
John Bell, reporting for Judge Heller, stated the work group met one time and have a conference call scheduled for next week. The work group has requested that someone from the Information Services Division (ISD) at the Administrative Office of the Courts (AOC) join the conference call since technical input is needed. Hopefully, after the conference call, the work group will be in a position to make a recommendation to the Committee.
Siri Woods asked if the work group has reviewed the statute passed a couple of years ago by the archives stating that sealed records that are archived would only be sealed for 75 years.
Mr. Bell indicated the work group has not and requested that Ms. Woods send the site to him so the work group can look at it. Judge Wynne indicated this statute raises an issue of legislative authority over the judicial branch since court rules indicate all judgments and sentences must be saved in perpetuity.
PROPOSED AMENDMENTS TO GR 22 – Access to Family Law and Guardianship Court Records
John Bell indicated he received an e-mail from Don Horowitz, the Access to Justice Board's liaison, adding some verbiage to the draft. Mr. Horowitz suggested the following addition in sections (c)(2), (g)(1), and (g)(3).
". . . copies of judicial information system database records submitted to, raised by, or considered by the court for parenting plan approval as set forth in (f) of this rule . . ."
After a lengthy discussion about whether the court would want items in a file not considered, it was the consensus of the Committee to wait until Judge Hall arrived to make a decision on Mr. Horowitz's suggestion.
PROPOSED AMENDMENTS TO GR 31 – Access to Court Records
John Bell stated Judge Stilz asked that some language be put together for foreign protection orders in relation to the federal Violence Against Women Act (VAWA) of 2005. Mr. Bell proposed the following language be added to GR 31, section (d)(1).
"(1) The public shall have access to all court records except as restricted by federal law, state law, court rule, court order, or case law or any foreign protection order filed under the authority of chapter 26.52 RCW."
Judge Wynne indicated that foreign protection orders are almost always filed under the context of civil proceedings except for one case which was filed under domestic proceedings.
Greg Banks stated the concern from the prosecutors is that the publication of any information has the potential to help a determined stalker find his or her victim. However, the orders need to be available to law enforcement agencies so they can be enforced. In reading the VAWA legislation, it is significant that it makes a distinction between publication of information on the Internet as opposed to restricting access to documents, and the proposed rule talks about court records.
Judge Grosse stated this is because there is a policy against two-tiered access, and that policy will not be altered according to the Chief Justice.
Judge Wynne indicated that since the Supreme Court is not going to allow two-tiered access, the only alternative is to restrict all access whether at the courthouse or over the Internet.
During discussions, Barb Minor clarified that there are two types of case indexes. One is public case types, and the other is for confidential cases (adoption, mental illness, and juvenile dependency). The confidential case index is not available to the public; and for an in-person request for case information from the court, a person must have the case number in order for the court to release any information—name identification is not enough. However, if protection orders are filed as a case type 2 (civil) or 3 (domestic), both parties names would show up in the case index which is available to the public. And, if a case is sealed, the names still show up in the index although no other information is available to the public.
Judge Wynne indicated there are differing opinions about whether the VAWA legislation applies to both foreign and intrastate protection orders. Judge Wynne also mentioned there is a legal question as to whether congress has the authority to impose any requirements on intrastate protection orders. The state constitution also comes into play in terms of what the state constitution allows the courts to do—it's a more complicated issue if someone goes beyond the foreign protection orders.
Molly Lawrence, from the Northwest Women's Law Center (NWLC), stated she and Judge Grosse met last August to discuss options. Judge Grosse agreed that if the NWLC and the Washington State Coalition Against Domestic Violence (WSCADV) could figure out a solution that worked that is not a two-tiered system, they could present it to the Committee for discussion.
Ms. Lawrence indicated over the last few months, meetings have been held with David Martin, Sandra Shanahan of the King County Prosecutor's Office, and Barb Miner. Ms. Lawrence handed out a one page summary of a proposal for discussion (copy attached for reference). Ms. Lawrence indicated the summary starts with an entirely sealed file, and then makes just the protection order itself publicly available with redacted information.
Judge Wynne asked if the case were a dissolution, would the entire dissolution file become sealed? Ms. Lawrence stated the first part of this would be to unembed all the domestic violence protection orders (DVPOs) from the underlying civil cases, so this would not be an issue. This would mean the court would need to have the DVPO case number associated back somehow to the other related case for purposes of the courts' consideration, but the DVPO would have it's own cause number and would be indexed separately.
Siri Woods indicated this is the same issue courts are dealing with regarding paternity cases. Everything from the order up is public. The problem is that courts have to actually give the order a different case number in order to make it public at that point. It is very confusing for the courts—some courts are doing this and some are not because it is so confusing, and the prosecutors are struggling with this as well. The new order under the new case number is filed as a case type 3 (domestic) which is a lot of work for the clerks.
Ms. Lawrence stated this proposal is about making sure peoples' information about the fact they are domestic violence victims is not made public to anybody; to protect those victims from any number of different people who might wish to harm them or discriminate against them.
After a lengthy discussion about how this would affect or be handled by the case index, Ms. Lawrence stated she appreciated Judge Hall's efforts to connect this issue to the VAWA language and Barb Miner's comments that this proposal is different that what the VAWA legislation is about. Since Judge Grosse had the intrastate order on the agenda, Ms. Lawrence felt this was a good time to bring a proposal to the Committee that dealt with the local orders to begin the dialogue.
Judge Grosse stated that if the Committee is concerned about what the law of the land is or isn't, all the Committee needs to deal with right now is foreign protection orders. To the extent that what was proposed by Ms. Lawrence goes beyond foreign protection orders, it seems that maybe this Committee doesn't provide the best means to deal with this proposal. Judge Grosse indicated his original position was to look at not just foreign protection orders, but all protection orders. If this is necessary to protect the victims of domestic violence, it should be done across the board. The reason the two-tiered system was given up is because it doesn't do anything to protect the victims. If a name is in the public index, it will be made available on the Internet unless victims are protected some other way. In order to protect the victims some other way, a plan needs to be developed to respond to Ms. Lawrence's proposal. Judge Grosse indicated he agreed with Judge Wynne's suggestion that another case type might be the answer. These are issues beyond the scope of judicial rules and should be dealt with by the legislature.
Judge Grosse further indicated that if the legislative determination says the victims of domestic violence deserve these protections, then the question is how can this be accomplished. The way these orders are entered into the JIS system is more a matter of practical necessity for the current systems, and this can be changed. The Committee can then ask someone who builds databases how this could work, and then ask the clerks and other interested parties to find out what it means to them from the standpoint of costs and practicality and if there might be any unforeseen consequences. If the Committee doesn't want to take on this issue and staff it, it should be sent to the legislature.
Judge Wynne indicated the Judicial Information System Committee (JISC) doesn't have the resources to staff something like this right now because of the work being done on the new case management system.
Grace Huang from the WSCADV indicated the federal government is currently in budget negotiations, and the delegation has been very good at bringing money into Washington to deal with issues. If there is a serious interest in doing this, Ms. Huang feels the delegation has the ability to influence this process and could help provide resources for this project.
Greg Banks stated this issue is dealing with some broad social policies, and it is his understanding the Data Dissemination Committee's function is to make sure rules are not set that conflict with state laws or the state Constitution and to see that the public has access to court information. If the Committee is not talking about adopting a rule that complies strictly with the new VAWA amendments, then this is something that should be discussed and decided by the legislature with full public participation. Judge Wynne and Judge Hall concurred with Mr. Banks.
Judge Grosse suggested the Committee, with assistance from the AOC, take a look at Ms. Lawrence's proposal before the next meeting and see what would be involved before taking it to the JISC or the legislature. Before the legislature gets too involved, the Committee needs to let them know what the JIS can do to accommodate any proposal and/or unforeseen consequences.
Judge Wynne asked if there was a motion with respect to foreign protection orders and GR 31 as proposed today. There being no motion, Judge Wynne stated the Committee will continue discussions at another meeting.
PROPOSED AMENDMENTS TO GR 22 – Access to Family Law and Guardianship Court Records
Judge Wynne reviewed Don Horowitz's proposed amendment to GR 22 for Judge Hall, indicating this proposal would require that anything looked at in regards to a parenting plan would need to be placed in the file and would require the information be distributed to everyone even if it's irrelevant.
Judge Hall stated that if information is not considered, there is no need for it to be placed in the file.
Motion: Judge Wynne called for a motion on GR 22 as originally drafted by John Bell. Judge Hall so moved; it was seconded by Siri Woods and unanimously passed. Judge Wynne stated it will now be sent to the JISC for consideration.
There being no further business, the meeting adjourned at 10:25 a.m.
Proposal to Protect Victim's Identifying Information and to Comply with VAWA
October 26, 2007
For Discussion Purposes Only
Based on discussions with law enforcement, DV advocates (both legal and non-legal), and representatives at the King County Prosecutors Office, we have developed the following proposal to protect DV victim's identifying information contained in DVPO pleadings and
(1) All civil DVPO actions would be assigned a separate cause number. They would no longer be embedded in other civil files. A note would be made, however, on the DVPO file that it is linked to another civil action so that the two actions may continue to be considered together as appropriate.
(2) All DVPO actions would be filed under seal. If and when either a temporary or a final DVPO Order is issued, a complete copy of that DVPO would be retained by the Court as part of the sealed file. A redacted version of that DVPO would be made public with the victim's identifying information redacted. Only following issuance of a DVPO would the case be included in the publicly accessible index and it would be listed under the redacted caption.
(3) Criminal justice agencies (e.g., police, prosecutor, etc.) would retain the ability to access the entire DVPO file pursuant to GR 31(f)(3).
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