GR 9 COVER SHEET

Suggested Amendments to

WASHINGTON STATE COURT RULES:

GR 31: ACCESS TO COURT RECORDS

Submitted by the District & Municipal Courts Judges’ Association

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A.        Name of Proponent:          District & Municipal Courts Judges’ Association

B.        Spokesperson:                   Judge Samuel Meyer, President

DMCJA

C.        Purpose:       The District and Municipal Courts Judges’ Association (DMCJA) recommends amending GR 31 to add a new paragraph (l) (after (k)) to address therapeutic court records. This amendment would further the goal of therapeutic courts, which are defined under RCW 2.30.010, to provide individualized treatment intervention. Limited public access to assessments and treatment reports would help encourage defendants to cooperate more honestly with risk/needs assessments, mental health and chemical dependency evaluations, and treatment.

In RCW 2.30.010, the legislature recognized the unique ability of therapeutic courts to help defendants address their individual treatment needs:

(1) The legislature finds that judges in the trial courts throughout the state effectively utilize what are known as therapeutic courts to remove a defendant's or respondent's case from the criminal and civil court traditional trial track and allow those defendants or respondents the opportunity to obtain treatment services to address particular issues that may have contributed to the conduct that led to their arrest or other issues before the court. Trial courts have proved adept at creative approaches in fashioning a wide variety of therapeutic courts addressing the spectrum of social issues that can contribute to criminal activity and engagement with the child welfare system.

(2) The legislature further finds that by focusing on the specific individual's needs, providing treatment for the issues presented, and ensuring rapid and appropriate accountability for program violations, therapeutic courts may decrease recidivism, improve the safety of the community, and improve the life of the program participant and the lives of the participant's family members by decreasing the severity and frequency of the specific behavior addressed by the therapeutic court.

(3) The legislature recognizes the inherent authority of the judiciary under article IV, section 1 of the state constitution to establish therapeutic courts, and the outstanding contribution to the state and local communities made by the establishment of therapeutic courts and desires to provide a general provision in statute acknowledging and encouraging the judiciary to provide for therapeutic court programs to address the particular needs within a given judicial jurisdiction.

            Successful program completion by a therapeutic court defendant is dependent on the defendant being honest throughout the entire process. Initial evaluations require defendants to be honest about their personal history, their addiction issues, their mental health issues, and other sensitive topics. Restricting access to such evaluations and treatment reports will help facilitate the goals of therapeutic courts because defendants can speak freely to evaluators, treatment providers, and probation counselors without fear that their personal and private information will be released to the general public.

            To further this end, the DMCJA proposes an amendment to GR 31 that would restrict access to certain critical records used in therapeutic courts. This amendment would be consistent with how family law and guardianship records are handled under GR 22, and would similarly facilitate public access to court records while also protecting personal privacy and not unduly burdening the ongoing business of the courts.

            The DMCJA considered a proposal to amend GR 22 to add therapeutic court records but has chosen to propose an addition to GR 31. The proposed language is modeled after GR 22(c) and (h). An alternative proposal amending GR 22 instead of GR 31 is available upon request.

D.  Proposed Amendments:

            The following subsection is proposed to be added to GR 31. The rest of the rule would remain unchanged.

(l) Restricted Access to Therapeutic Court Records.

(1)  Unless otherwise provided by statute, court rule, court order, or subsection (1)(A) below, all court records shall be open to the public for inspection and copying upon request. The clerk of the court may assess fees, as may be authorized by law, for production of such records.

(A)     Restricted Access.  Risk/needs assessments, chemical dependency assessments, domestic violence assessments, mental health and sexual deviancy assessments, treatment provider reports and compliance reports, presentence reports, probation compliance reports, self-help support group attendance (e.g., AA or NA), and any other compliance reports used in therapeutic courts shall only be accessible as provided in (2) herein.

(2)   Unless otherwise provided by statute, court rule or court order, the following persons shall have access to the Restricted Access records listed in (1)(A) above:

(A)       Judges, commissioners, magistrates, other court personnel, probation counselors, defendants, defendant’s attorney of record, and the prosecuting attorney.

(3) Upon receipt of a written motion requesting access to these types of records by some other person, the court may allow access to court records restricted under this rule, or relevant portions of court records restricted under this rule, if the court finds no statute or other court rule prohibits access, and the public interest in granting access or the personal interest of the petitioner seeking access, outweighs the privacy  and safety interests of the defendant or other persons mentioned in the records.

(A)    If the court grants access to court records restricted under this rule, the court may enter such orders necessary to balance the personal privacy and safety interests of the defendant or other persons with the public interest in access.