GR 31A - Access to Administrative RecordsComments for GR 31A must be received no later than November 30, 2011.
Suggested New Rule
Submitted by the Board for Judicial Administration
Purpose: At its meeting on February 18, 2011, the Board for Judicial Administration (BJA) adopted a motion to propose to the Supreme Court a new General Rule 31A. The suggested new rule sets forth standards and procedures for providing public access to the Washington State judiciary’s administrative records.
The BJA developed its proposal after creating a Public Records Work Group, which included members both from within the judiciary and from outside groups interested in public access to judicial records. The Work Group recommended new standards and procedures for providing public access to the judiciary’s administrative records. The BJA carefully reviewed the Work Group’s recommendations, made several changes, and approved the suggested new GR 31A for the Supreme Court’s consideration.
Need for a new rule. The suggested rule fills a gap in the existing laws. Currently, there is no law that broadly addresses public access to the judiciary’s administrative records. The Washington State Public Records Act (“PRA”) (Chapter 42.56 RCW) does not apply to judicial records. See City of Federal Way v. Koenig, 167 Wn.2d 341, 217 P.3d 1172 (2009). Furthermore, General Court Rule 31, which addresses public access to “court records,” does not apply to the judiciary’s administrative records, see GR 31(b); it applies only to court case files and related documents about judicial proceedings. See GR 31(c) (defining “court records” as including “[a]ny document, information, exhibit, or other thing that is maintained by a court in connection with a judicial proceeding” as well as indices, calendars, dockets, orders, and other official records that are related to a judicial proceeding).
The BJA, and its Public Records Work Group, believe that public access to the judiciary’s administrative documents is better addressed by court rule than by inclusion within the PRA. The BJA decided to draft a new rule – separate from GR 31 -- to address this topic, rather than expanding GR 31 to cover administrative records. Having two distinct rules makes clear that the existing procedures in GR 31 for access to case-related records are separate from, and are not being changed by, the new provisions on access to administrative records.
Entities covered by rule. The suggested rule would apply to judicial agencies and to courts. A few judicial agencies are specifically exempted from the suggested rule, for reasons that are set forth in explanatory comments in suggested GR 31A (c). The suggested rule also provides that judicial officers are not themselves agencies or courts, so they will not be personally required to respond to public records requests. See section (c)(5) of suggested GR 31A. Finally, entities that operate information-technology servers, and other custodians of the judiciary’s administrative records, would not be allowed to disclose records except under limited circumstances. See suggested section (c)(7).
Categories of records. The suggested rule divides judicial branch records into three categories:
Chambers records. Chambers records, as defined in section (d)(4), are not public records, and are not subject to disclosure. This provision protects judicial officers from intrusion into their decision-making process. See section (d)(4) and its accompanying comments.
Presumptive access to administrative records; exemptions. Administrative records are broadly defined in section (d)(2). Administrative records are presumptively open to public access, except as exempted or prohibited in the suggested rule or in other statutes, court rules, or other laws (including the PRA). See section (e)(1).
The suggested rule incorporates by reference existing exemptions and prohibitions from other sources of law and explicitly states 11 exemptions (see suggested GR 31A (e)(1)(B)). Some of the exemptions in the suggested rule have counterparts in the PRA. For example, the PRA has a “deliberative process” exemption, which extends confidentiality to certain draft documents containing opinions or recommending policies as part of an agency’s deliberative or policy-making process. RCW 42.56.280. Under case law, the PRA’s deliberative process exemption extends only until such time as the agency makes the final policy decision, at which time the deliberative-process draft documents become open to public access. Progressive Animal Welfare Soc'y v. Univ. of Wash., 125 Wn.2d 243, 256, 884 P.2d 592 (1994). The suggested rule incorporates a modified version of the PRA’s exemption; the suggested rule restates the PRA exemption but adds a sentence providing that the deliberative-process draft documents remain confidential after the final policy decision is made. See section (e)(1)(B)(4) and the accompanying comment.
Procedures. Procedures for obtaining public access to administrative documents are found primarily in section (e)(3). Procedures are provided for requesting records and for responding to records, each of which have many parallels with PRA procedures. A bifurcated, expedited appeals process is provided in section (e)(3)(B)(4), with the intent of providing prompt, final decisions. See the comment that follows sections (e)(3)(B)(4) and (5). The fees that courts and judicial agencies may charge requesters are set forth in section (g).
Sanctions for noncompliance. Monetary sanctions for noncompliance are more limited than under the PRA. See section (e)(3)(B)(6). The suggested rule precludes the imposition of per diem fines and penalties, and it limits the circumstances under which reasonable attorney fees and costs may be awarded. The suggested rule clarifies that monetary sanctions may not be assessed against individuals, only against the applicable entity. See section (e)(3)(B)(6)(iv).
Especially burdensome requests. Several sections provide courts and judicial agencies with tools for addressing particularly broad records requests and other requests that would significantly affect judicial functioning. See section (e)(3)(A)(6) (providing special procedures for extraordinary requests that impact resource limits); section (g)(4) (allowing research fees to be charged for particularly time-consuming records requests); section (g)(3) (allowing entities to provide documents in installments and to require deposits); and section (e) (placing limitations on inmate requests that involve harassment or threats to security, similar to a corresponding provision in the PRA).
Best practices. The suggested rule calls for the creation and recognition of best practices, so that the necessarily general provisions in the suggested rule can be addressed in greater detail. Courts and judicial agencies would be able to rely on the best practices, once approved by the Supreme Court, when responding to records requests. See section (h).
Delayed effective date and prospective application. Finally, the suggested rule would have a delayed effective date, allowing time for training, development of best practices, and implementation. See section (i)(1). The rule would apply prospectively only, in the sense that it would apply only to documents that are created on or after the rule’s effective date. See section (i)(1). Documents created before that date would be analyzed according to other court rules, applicable statutes and the common law balancing test, but the Public Records Act would be used for guidance only. See section (i)(2).
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