REPORT TO THE SUPREME COURT ON GENERAL RULE 31

INTRODUCTION

GR 31 was adopted effective October 26, 2004. Accompanying the adoption of the rule was a Supreme Court order that read, in part: "That the JIS Committee shall monitor the new rule and, upon consultation with interested parties, shall report to the Court by October 6, 2005, on its functioning together with any suggestions for amendments to the rule." In response to this order, the AOC has collected comments for the JIS Committee over the past year. In addition, a published comment period was set from July 1, 2005 to August 1, 2005. Stakeholders were notified about this comment period, including those who took part in the debate and discussion prior to the adoption of the rule. At the time of this report, 35 comments have been received. Comments were received from attorneys, judges, paralegals, court personnel, coalitions and organizations. All the comments are attached as Appendix A.

ISSUES RAISED BY THE COMMENTS

There were a number of issues raised by the comments. Only three issues generated more than two comments: (1) redaction or omission of minor children's names; (2) extending the GR 31 review period; and (3) prospectivity versus retroactivity of GR 31. A few of the commentators expressed their philosophical differences with GR 31. These philosophical differences were thoroughly discussed and debated before adoption of the rule and will not be further discussed in this report. The three issues that generated the most comments are addressed below and are accompanied with a proposed recommendation.

1. GR 31(e)(1)(B) - Redaction of children's names.

   By far, the most comments received on a single issue expressed dissatisfaction with GR 31(e)(1)(B) which requires parties to omit or redact the names of minor children from documents filed with the court. A child's initials may be used in cases where the "involvement of the minor must be mentioned." Two exceptions allow use of the minor child's full name: (1) If use of the minor's name is required in GR 22; or (2) "Unless necessary or otherwise ordered by the court." Many practitioners are having difficulty deciding when use of a minor's name is "necessary."

   In response to concerns, King County Superior Court adopted LGR 31 which lists numerous instances when a child's full name may be used in a court record thereby answering what this local court views as "necessary." Similar local rules have been adopted by Walla Walla, Whatcom and Yakima Counties. It is apparent from the comments that some practitioners would like the Supreme Court to develop a similar statewide exception or "necessary" list. Amending GR 31 to include such a list is not recommended. Such lists, while appropriate for local courts, are never exhaustive and potentially add confusion rather than eliminating it.

   JISC Recommendation: JISC recommends repealing GR 31(e)(1)(B). This would allow use of children's names in court records except where prohibited by statute or court rule. The majority of commentators also prefer repealing GR 31(e)(1)(B).

   Repealing this section does not mean that children's full names would be publicly accessible in all court records. There are several statutes that require confidential treatment of the identity of a minor child. e.g. RCW 26.33.330 (adoption); RCW 13.50.100 (records not related to juvenile criminal offense) RCW 13.50.050 (11)(13) and (17) (juvenile diversions); RCW 71.34.210 (mental illness commitment of minors).

   Additionally, repealing this subsection would be consistent with the Supreme Court's holding in Allied Newspapers v. Eikenberry, 121 Wn.2d 205 (1993) which found unconstitutional a statute that prohibited the disclosure, through court records, the names of child victims of sexual assault. Instead of a blanket sealing of all children's names, the Supreme Court held that trial courts need to decide on a case-by-case basis whether a child victim's name should be disclosed. Allied, supra at 210 -211. Here, if this subsection is repealed, a party believing a child's name should be confidential would make a GR 15 motion and the trial court would determine if non-disclosure of child's name is justified.

2. Extending the Review Period

   Several commentators recommended an extension of the review period. This concern was best summarized by the comments of Don Horowitz, attorney and Access to Justice Board's liaison to the JISC. Mr. Horowitz stated:

   The one year review period initially contemplated by the Court when GR 31 was adopted was a good faith effort, but the period has turned out not to be realistic. All of us, including the courts, still have only very limited if any experience with the electronic dissemination of court records to this time. As a consequence, there has been insufficient experience and insufficient opportunity to identify specific problems or accumulate other meaningful information relating to the implementation of GR 31. For the Court's review of GR 31 to be meaningful, there must be sufficient experience and data from which the Court can make judgments and draw conclusions.

   It is important to note that as of August 2005 only two counties, Pierce and Chelan, have placed their court records online. Pierce and Chelan charge user fees. King County, the state's largest county, has not placed their court records online. While online access to some King County records may be available in the coming months, it will be a graduated process. The small number of positive or negative comments received since GR 31's adoption is probably best explained by the unavailability of online access to most court records.

   JISC Recommendation: The JISC recommends continued monitoring of GR 31. JISC and the Administrative Office of the Courts will continue to monitor comments, court websites, and other information related to public access to court records and, if necessary, prepare another report for the Supreme Court's review.

3. Prospective Application of GR 31

   There were a few comments that requested GR 31 specifically state that the rule should apply prospectively to remote access.  The JISC previously rejected this request because GR 31 is not an enabling rule that authorizes electronic access to court records.  Rather, GR 31 simply codified common law principles developed in Washington State with regard to access to court records.  The JISC also believes that decisions on implementation of remote access are better addressed by each local court; court records in some jurisdictions were already online at the time of GR 31's adoption.         

   However, there still is a concern that court records filed before GR 31's adoption may contain personal identifiers and other information that that are now required to be omitted or redacted under GR 31(e).  It was not the intent of GR 31 to require anyone to redact information from court records filed prior to the rule's adoption.  JISC is suggesting adding a brief comment to GR 31 that clarifies this intent.

   JISC Recommendation - JISC is recommending that GR 31 remain silent on prospectivity.  The decision on whether to allow remote access to court records filed prior to GR 31's adoption should be left to the local courts.

   It may be helpful, however, to include a brief comment on whether anyone is responsible for redacting information in pre-GR 31 court records.  The duty to redact and omit certain personal identifiers set forth in GR 31(e) only applies to court records filed after the adoption of GR 31.  To help make this intent clear, the following comment should be inserted after GR 31(e): "This rule does not require any party, attorney, clerk, or judicial officer to redact information from a court record that was filed prior to the adoption of this rule." 

4. Other Comments

   There were several other issues or concerns raised over the past year. These issues were: (1) When driver's license numbers were necessary under GR 31(e)(1)(D) (one e-mail); (2) Financial Institutions may refuse to accept court orders with redacted or omitted financial account numbers - GR 31(e)(1)(C)(one comment); (3) No changes necessary (two comments); (4) Inadequate notice of access to court records provided to litigants, especially pro se litigants (two comments); (5) Philosophical differences with remote access to court records, in particular family law cases, with requests to adopt a "two-tier system" [records available at the courthouse, but not online] (four comments); the other side of the debate was also addressed with a request for additional language mandating a single-tier system (one comment). There were also a couple comments submitted where the purpose of the comment was unclear.

   No changes should be made to GR 31 in response to the few comments received on these miscellaneous issues and concerns. If the Supreme Court continues the review period, some of these issues and concerns may require further discussion and debate.

CONCLUSIONS

Based on the comments received since GR 31's adoption, JISC recommends:

1. Repeal GR 31(e)(1)(B).

2. GR 31 should remain silent on retroactive vs. prospective application. To avoid confusion, however, a brief comment that states there is no obligation to redact information from a court record filed prior to the adoption of the rule should be inserted after GR 31(e)(2).

3. Continue to monitor and review GR 31 and to report to the Supreme Court if any significant problems or issues develop.

4. The JISC also suggests that a general comment section be added to the court rules section of the "Washington Courts" public website that allows comments on any state court rule.