GR 31.1 - Access to Administrative Records
Comments for GR 31.1 must be received no later than August 26, 2013.
Proposed New Rule
GENERAL RULES (GR)
GR 31.1 — Access to Administrative Records
Overview. Proposed GR 31.1 is a revised version of a proposal that was most recently published for comment in September 2012. After reviewing those public comments, the Supreme Court has made many revisions to the proposal. Due to the significance and scope of the changes, the Supreme Court is republishing the proposal for the receipt of further comments.
Background for proposal. The proposed rule has been published twice before for public comments, once in June 2011 and once in September 2012. Each time the rule has been republished for further comments due to the extent of the changes that the rule has undergone in response to the comments that have been received.
Information about the first version of the proposed rule, published for comment in June 2011, can be found at
http://www.courts.wa.gov/court_rules/?fa=court_rules.proposedRuleDisplay&ruleId=258. Information at this link includes the text of the original proposal, a background as to the need for the rule, an overview of its major provisions, and the comments that were received.
Information about the second version of the proposed rule, published for comment in September 2012, can be found at
http://www.courts.wa.gov/court_rules/?fa=court_rules.proposedRuleDisplay&ruleId=285. Included there is the text of the second proposal, a background statement including a list of the more notable changes made since the first proposal, and the comments that were received.
An overview of the proposed rule as a whole can be found at these earlier links. The following section summarizes the most recent changes that have been made to the proposed rule.
Summary of the revisions contained in the current proposed rule. The current proposal involves many changes from the second proposal. These changes most notably include:
- Documents about judges’ meetings. The previous version had provided a blanket exemption from disclosure for any document that was prepared for use at a meeting of judges. This blanket exemption has now been removed, so that such documents would be treated like any other “deliberative process” document – they are exempt until a final decision is made on the final policy decision that is discussed in the document, but then become open to public access. The current version also adds a new comment reminding courts and agencies that they may exercise their discretion to disclose meeting minutes that do not contain confidential information. See section (l)(2).
- Chambers records—Electronic documents stored on external servers. Comment language has been added clarifying that electronic documents that a judge’s chambers stores on an external server are still under the control of the chambers for purposes of qualifying as chambers records (chambers records are not open to public access). See the comment for section (m)(1).
- Electronic documents that are stored on judicial employees’ personal electronic devices. Comment language is added indicating that courts and judicial agencies will need to consider adopting policies regarding the use by judicial employees of their personally owned electronic devices to conduct official business. See the comment to section (c)(1).
- Review of visiting judge’s records-review decision. Under the rule, a records requester who is dissatisfied with a court or agency’s records decision has two ways to seek review, one of which involves informal review by a visiting judge or other outside decision-maker. Under the previous version, the informal decision by the visiting judge or outside decision-maker was final and not subject to further review. In the current version, the informal decision by the visiting judge or outside decision-maker is subject to further review via a writ filed in superior court. Language is also added clarifying that the review decisions by a visiting judge are part of the judicial function. See section (d)(4)(2).
- Requests that involve harassment, intimidation, security threats, or criminal activity. These are now grounds for denying a records request. In the previous version, these were instead grounds for seeking a court injunction. See section (c)(7).
- Certified Professional Guardian records. The standards for public access to records of the Certified Professional Guardian Board have been revised to allow for greater access to records concerning grievances filed against certified professional guardians. See section (l)(12).
- Bad faith decisions. The current version no longer has a provision on bad faith decisions. The previous version had set forth the penalties that exist under other rules and statutes for decisions that are made in bad faith. Because these are already addressed elsewhere, they are not being restated in this rule.
- Fees for access to records. The current version allows courts and judicial agencies to require prepayment of fees and allows them to require a deposit in an amount up to the estimated cost of providing requested copies. See section (h).
- Presumption of public access. This presumption has been moved from the interior of the rule into the opening section for greater visibility. See section (a).
- Appointment of defense experts. The current version narrows the exemption in the rule for records related to the appointment of defense experts in criminal cases. Under the new version, the exemption applies only until the underlying case is concluded in the courts, and routine payment records will now be open to public access if they do not contain confidential information. See section (l)(6).
- “Deliberative process” documents. The rule has been clarified to state directly that the exemption for documents that discuss pending policy decisions is time-limited; once a final decision is made on the issue that is being discussed in a document, the document becomes open to public access. See section (l)(3).