GR 31.1 - Access to Administrative Records

• Proposed New Rule GR 31.1 - Access to Administrative Records (in Word Format)
• Comments Received for GR 31.1 - Access to Administrative Records

GR 9 Cover Sheet

Suggested New Rule
GENERAL RULES (GR)
GR 31.1 — Access to Administrative Records

Purpose:

Overview. Proposed GR 31.1 is a revised version of proposed GR 31A. Proposed GR 31A was published for public comment in June, 2011, and a public hearing was held on February 6, 2012. The public comments and testimony suggested many changes to the proposal; several of the suggested changes involved fundamental policy issues. After reviewing the public input, the Supreme Court made many revisions to the original proposal. Due to the significance and scope of the changes, the Supreme Court is republishing the proposal for the receipt of further comments.

Original proposal. GR 31A was originally proposed to fill a gap in existing laws, because the Public Records Act does not apply to judicial records and no other law broadly addresses public access to the judiciary’s administrative records. See City of Federal Way v. Koenig, 167 Wn.2d 341, 217 P.3d 1172 (2009). An existing court rule addresses public access to court case files and related documents about judicial proceedings, but it does not address administrative documents. See GR 31(b) and (c).

A full summary of the original proposed GR 31A was set forth in the original GR 9 cover sheet, which is available on the www.courts.wa.gov website at this LINK. Also found at that link are the original proposed GR 31A and the written public comments that were originally received. A recording of the public hearing on proposed GR 31A is available on the TVW website, www.tvw.org.

Revisions made by the Supreme Court. The Supreme Court held a series of meetings to consider the suggested changes for the rule. The Supreme Court has completed its review and has made many changes, including the following:

● Organization. The most immediately apparent changes relate to the rule’s organization. The rule now addresses the following topics in the following order: general principles; records procedures; the rule’s application for administrative records; chamber records; and implementation issues. The Court also added headings for the major parts of the rule and reduced the number of levels of subsections, for greater ease of reader understanding.

● No new judicial cause of action. The Supreme Court removed the sections entitled “Review in Superior Court” and “Monetary Sanctions,” due to separation of powers concerns about creating a new judicial cause of action in a court rule. In their place, a section was added indicating that formal judicial review of a court/agency’s records decision may be obtained through existing processes outside the rule, such as the filing of a writ. See section (d)(4)(i).

● Participation by third parties. The Supreme Court added a new section allowing for participation of a third party who is the subject of the requested record. The subject of the record may also initiate a review proceeding.

● Deliberative process exemption. The Supreme Court changed the exemption so that it mirrors the PRA provision. Previously, the rule’s exemption for deliberative process documents continued to apply even after a final decision was made on the issue that was under deliberation; as revised, the rule’s exemption applies only until a final decision is made.

● Policy. The rule’s policy statement was expanded to include a citation to the constitutional provision on open courts. Language was removed that had cited the constitutional provision on privacy, while still retaining the remainder of the provision’s language on privacy. Privacy is an important concept in this area of the law, but the focus of appellate opinions interpreting the Public Records Act has been on common law principles of privacy, rather than on constitutional principles.

● Certified Professional Guardian Board. The Supreme Court removed the provision that had exempted the CPG Board from the rule. The Court decided that the CPG Board should be subject to the rule, although some of the Board’s documents need to be kept confidential. New exemptions for the confidential documents have been drafted.

● Injunctions for requests having improper purposes. The Supreme Court redrafted the section on injunctions. Previously, this section applied only to inmates who requested records with an improper purpose (i.e., harassment, intimidation, threat to security, criminal activity). As redrafted, the section applies to anybody who requests the records with these improper purposes.

● Birth dates. The Supreme Court removed language that would have exempted birth dates for public access. Birth dates are used to distinguish between similarly named people.

● Appellate assignment judges. The Supreme Court deleted the exemption for the identity of appellate court assignment judges. The exemption is not needed here, as it relates to case records, which is addressed in a separate rule, GR 31.

● Deadlines for requesting review of records decisions. The Supreme Court added deadlines for appealing from records decisions. A person who is dissatisfied with a public records officer’s decision has 90 days in which to seek internal review within the court/agency. A person who is dissatisfied with the court/agency’s final decision has 30 days in which to seek external review.

● Role of the PRA. The Supreme Court refined language on the role of the PRA in providing guidance when the rule’s application to a particular issue is ambiguous.

● Security records. A new section was added to protect security records. The new section expands similar language from the Public Records Act.

● Appointment of Defense Expert Witnesses. The Supreme Court expanded one of the exemptions so that it would cover a broader range of documents related to the appointment of expert witnesses for the defense of criminal cases.

● Office of Public Defense and Office of Civil Legal Aid. The Supreme Court rectified a potential ambiguity in the rule by adding language directly stating that the rule applies to the Office of Public Defense and the Office of Civil Legal Aid.

● Commission on Judicial Conduct. The Supreme Court deleted a redundant provision that had expressly excluded the Commission on Judicial Conduct from the rule. The provision specific to the CJC is not needed, because the rule applies only to those agencies that are overseen by a court; the CJC is not overseen by a court.

Accompanying rule. When proposed GR 31A was submitted to the Supreme Court, it was accompanied by a proposed amendment to GR 31 (public access to case files). The proposed amendment to GR 31 made minor changes to ensure that the two rules worked smoothly together. The proposed amendment to GR 31 is still pending; the Court will act on that amendment once the new GR 31.1 is in final form.