WSR 11-13-061

RULES OF COURT

STATE SUPREME COURT


[ June 10, 2011 ]

IN THE MATTER OF THE ADOPTION OF NEW GR 31A-ACCESS TO ADMINISTRATIVE RECORDS )

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)

ORDER

NO. 25700-A-978


The Board for Judicial Administration having recommended the adoption of New GR 31A-Access to Administrative Records, and the Court having approved the proposed new rule for publication;

Now, therefore, it is hereby

ORDERED:

(a) That pursuant to the provisions of GR 9(g), the proposed new rule as shown below hereto is to be published for comment in the Washington Reports, Washington Register, Washington State Bar Association and Administrative Office of the Court's websites expeditiously.

(b) The purpose statement as required by GR 9(e), is published solely for the information of the Bench, Bar and other interested parties.

(c) Comments are to be submitted to the Clerk of the Supreme Court by either U.S. Mail or Internet E-Mail by no later than November 30, 2011. Comments may be sent to the following addresses: P.O. Box 40929, Olympia, Washington 98504-0929, or Camilla.Faulk@courts.wa.gov. Comments submitted by e-mail message must be limited to 1500 words.

DATED at Olympia, Washington this 10th day of June, 2011.
For the Court

Madsen, C. J.

CHIEF JUSTICE


GR 9 COVER SHEET

Suggested New Rule


GENERAL RULES (GR)

GR 31A - Access to Administrative Records

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:


"court files", which are governed by GR 31 and not by the suggested GR 31A;
chambers records; and
administrative records.

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).

Reviser's note: The brackets and enclosed material in the text of the above section occurred in the copy filed by the agency and appear in the Register pursuant to the requirements of RCW 34.08.040.


[SUGGESTED NEW RULE]

From the Board for Judicial Administration


General Court Rule 31A


ACCESS TO ADMINISTRATIVE RECORDS



(a) Policy and Purpose. It is the policy of the judiciary to facilitate access to administrative records. Access to administrative records is not absolute and shall be consistent with reasonable expectations of personal privacy as provided by article 1, section 7 of the Washington State Constitution, restrictions in statutes, restrictions in court rules, and as required for the integrity of judicial decision-making. Access shall not unduly burden the business of the judiciary.

(b) Scope.

This rule governs the right of public access to administrative judicial records. This rule applies to all administrative records, regardless of the physical form of the record, the method of recording the record, or the method of storage of the record. Access to court records is governed by GR 15, 22, and 31.

COMMENT: "Court records" is a term of art, defined in GR 31 as meaning case files and related documents.

(c) Application of Rule.

(1) This rule applies to the Supreme Court, the Court of Appeals, the superior courts, the district and municipal courts, and the following judicial branch agencies:

(A) All judicial entities that are overseen by a court, including entities that are designated as agencies, departments, committees, boards, commissions, task forces, and similar groups;

(B) The Superior Court Judges' Association, the District and Municipal Court Judges' Association, and similar associations of judicial officers and employees; and

(C) All subgroups of the entities listed in this section (1).

COMMENT: The elected court clerks and their staff are not included in this rule because (1) they are covered by the Public Records Act and (2) they do not generally maintain the judiciary's administrative records that are covered by this rule.

(2) This rule does not apply to the Commission on Judicial Conduct. The Commission is encouraged to incorporate any of the provisions in this rule as it deems appropriate.

COMMENT: The Commission on Judicial Conduct is not governed by a court. The commission has a heightened need for maintaining independence from courts. It would be inappropriate to dictate to the commission its policies on public records.

(3) This rule does not apply to the Washington State Bar Association. Public access to the Bar Association's records is governed by GR 12.4.

COMMENT: This paragraph (3) presumes that the Bar Association's proposed rule 12.4 (currently being drafted) is adopted.

(4) This rule does not apply to the Certified Professional Guardian Board. Public access to the board's records is governed by GR 23.

(5) A judicial officer is not a court or judicial agency.

COMMENT: This provision protects judges and court commissioners from having to respond personally to public records requests. Records requests would instead go to the court's public records officer.

(6) An attorney or entity appointed by a court or judicial agency to provide legal representation to a litigant in a judicial or administrative proceeding does not become a judicial agency by virtue of that appointment.

COMMENT: The Washington Association of Criminal Defense Lawyers (WACDL) expressed a concern that appointed criminal defense attorneys and their agencies not be covered by this rule by virtue of their appointment. Paragraph (6) removes them from the scope of this rule.

(7) A person or agency entrusted by a judicial officer, court, or judicial agency with the storage and maintenance of its public records, whether part of a judicial agency or a third party, is not a judicial agency. Such person or agency may not respond to a request for access to administrative records, absent express written authority from the court or judicial agency or separate authority in court rule to grant access to the documents.

COMMENT: Judicial e-mails and other documents sometimes reside on IT servers, some are in off-site physical storage facilities. This provision prohibits an entity that operates the IT server from disclosing judicial records. The entity is merely a bailee, holding the records on behalf of a court or judicial agency, rather than an owner of the records having independent authority to release them. Similarly, if a court or judicial agency puts its paper records in storage with another entity, the other entity cannot disclose the records. In either instance, it is the court or judicial agency that needs to make the decision as to releasing the records. The records request needs to be addressed by the court's or judicial agency's public records officer, not by the person or entity having control over the IT server or the storage area. On the other hand, if a court or judicial agency archives its records with the state archivist, relinquishing by contract its own authority as to disposition of the records, the archivist would have separate authority to disclose the records.

Because of the broad definition of "public record" appearing later in this rule, this paragraph (6) would apply to electronic records, such as e-mails (and their meta-data) and telephone records, among a wide range of other records.

(d) Definitions.

(1) "Access" means the ability to view or obtain a copy of an administrative record.

(2) "Administrative record" means a public record created by or maintained by a court or judicial agency and related to the management, supervision, or administration of the court or judicial agency.

COMMENT: The work group has developed a list of categories of records maintained by courts and judicial agencies. The list is annotated with the work group's expectation of whether such records are subject to disclosure. The list is found as an appendix to the work group's report. It is intended for illustrative purposes only.

The term "administrative record" does not include any of the following: (1) "court records" as defined in GR 31; (2) chambers records as set forth later in this rule; or (3) an attorney's client files that would otherwise be covered by the attorney-client privilege or the attorney work product privilege.

(3) "Court record" is defined in GR 31.

(4)(A) "Chambers record" means any writing that is created by or maintained by any judicial officer or chambers staff, and is maintained under chambers control, whether directly related to an official judicial proceeding, the management of the court, or other chambers activities. "Chambers staff" means a judicial officer's law clerk and any other staff when providing support directly to the judicial officer at chambers.

COMMENT: Some judicial employees, particularly in small jurisdictions, split their time between performing chambers duties and performing other court duties. An employee may be "chambers staff" as to certain functions, but not as to others. Whether certain records are subject to disclosure may depend on whether the employee was acting in a chambers staff function or an administrative staff function with respect to that record.

(B) Chambers records are not public records. Court records and administrative records do not become chambers records merely because they are in the possession or custody of a judicial officer or chambers staff.

COMMENT: Access to chambers records could necessitate a judicial officer having to review all records to protect against disclosing case sensitive information or other information that would intrude on the independence of judicial decision-making. This would effectively make the judicial officer a de facto public records officer and could greatly interfere with judicial functions. Records may remain under chambers control even though they are physically stored elsewhere. For example, records relating to chambers activities that are stored on a judge's personally owned or workplace-assigned computer, laptop computer, cell phone, and similar electronic devices would still be chambers records. However, records that are otherwise subject to disclosure should not be allowed to be moved into chambers control as a means of avoiding disclosure.

Chambers records do not change in character by virtue of being accessible to another chambers. For example, a data base that is shared by multiple judges and their chambers staff is a "chambers record" for purposes of this rule, as long as the data base is only being used by judges and their chambers staff.

(5) "Judge" means a judicial officer as defined in the Code of Judicial Conduct (CJC) Application of the Code of Judicial Conduct Section (A).

(6) "Public" includes an individual, partnership, joint venture, public or private corporation, association, federal, state, or local governmental entity or agency, however constituted, or any other organization or group of persons, however organized.

(7) "Public record" includes any writing, except chambers records and court records, containing information relating to the conduct of government or the performance of any governmental or proprietary function prepared, owned, used, or retained by any court or judicial agency regardless of physical form or characteristics. "Public record" also includes meta-data for electronic administrative records.

COMMENT: The definition in paragraph (7) is adapted from the Public Records Act. The work group added the exception for chambers records, for consistency with other parts of the proposed rule.

(8) "Writing" means handwriting, typewriting, printing, photostating, photographing, and every other means of recording any form of communication or representation including, but not limited to, letters, words, pictures, sounds, or symbols, or combination thereof, and all papers, maps, magnetic or paper tapes, photographic films and prints, motion picture, film and video recordings, magnetic or punched cards, discs, drums, diskettes, sound recordings, and other documents including existing data compilations from which information may be obtained or translated.

COMMENT: The definition in paragraph (8) is taken from the Public Records Act. E-mails and telephone records are included in this broad definition of "writing."

(e) Administrative Records.

(1) Administrative Records--Right of Access.

(A) The public has a right of access to court and judicial agency administrative records unless access is exempted or prohibited under this rule, other court rules, federal statutes, state statutes, court orders, or case law. To the extent that records access would be exempt or prohibited under the Public Records Act, Chapter 42.56 RCW, access is also exempt or prohibited under this rule. In addition, to the extent required to prevent a significant risk to individual privacy or safety interests, a court or judicial agency shall delete identifying details in a manner consistent with this rule when it makes available or publishes any public record; however, in each instance, the justification for the deletion shall be provided fully in writing.

COMMENT: The paragraph states that administrative records are open to public access unless an exemption or prohibition applies. The paragraph's final sentence allows agencies to redact information from documents based on significant risks to privacy or safety.

Any public-access exemptions or prohibitions from the Public Records Act and from other statutes or court rules would also apply to the judiciary's administrative records. For example, GR 33(b) provides that certain medical records relating to ADA issues are to be sealed; the sealed records would not be subject to access under this proposed GR 31A.

(B) In addition to exemptions referred to in paragraph (A) above, the following categories of administrative records are exempt from public access:

(1) Requests for judicial ethics opinions;

COMMENT: This exemption was requested by the Judicial Ethics Advisory Committee.

(2) Identity of writing assignment judges in the appellate courts prior to issuance of the opinion;

COMMENT: This exemption was suggested by Judge Quinn Brintnall at a BJA meeting.

(3) Minutes of meetings held by judges within a court and staff products prepared for judicial discussion or decision-making during the meeting;

COMMENT: Minutes of the deliberations at judges' meetings are exempt. Records produced by staff for consideration in judges' meetings and identified in the minutes would be exempt under this section. The preliminary recommendations continue to be protected under the next subsection, after final decision. However, final decisions on administrative matters and the documents embodying them are not exempt from disclosure.

(4) Preliminary drafts, notes, recommendations, and intra-agency memorandums in which opinions are expressed or policies formulated or recommended are exempt under this rule, except that a specific record is not exempt when publicly cited by a court or agency in connection with any court or agency action. This exemption applies both before and after a final decision is made on the opinion or policy;

COMMENT: The first sentence of paragraph (4) is the "deliberative process" exemption from the Public Records Act, RCW 42.56.280.

Unlike the Public Records Act, in which the deliberative process exemption expires once the decision is made (see Progressive Animal Welfare Soc'y v. University of Wash., 125 Wn.2d 243, 257, 884 P.2d 592 (1994)), this rule provides a continuing exemption.

(5) Evaluations and recommendations for candidates seeking appointment or employment within a court or judicial agency;

COMMENT: Paragraph (5) is intended to encompass documents such as those of the Supreme Court's Capital Counsel Committee, which evaluates attorneys for potential inclusion on a list of attorneys who are specially qualified to represent clients in capital cases.

(6) Personal identifying information, including individuals' home contact information, birth dates, Social Security numbers, driver's license numbers, and identification/security photographs;

COMMENT: The exemption was requested by staff for the Office of Public Defense. The work group considered including private financial information in this provision, but ultimately concluded that financial information is already addressed in the Public Records Act's exemptions.

(7) An attorney's request to a court or judicial agency for a trial or appellate court defense expert, investigator, or social worker, any report or findings submitted to the attorney or court or judicial agency by the expert, investigator, or social worker, and the invoicing and payment of the expert, investigator or social worker;

COMMENT: The exemption was requested by the Office of Public Defense.

(8) Documents, records, files, investigative notes and reports, including the complaint and the identity of the complainant, associated with a court's or judicial agency's internal investigation of a complaint against the court or judicial agency or its contractors during the course of the investigation. The outcome of the court's or judicial agency's investigation is not exempt;

COMMENT: The exemption was requested by the Office of Public Defense.

(9) Family court evaluation and domestic violence files when no action is legally pending;

(10) Family court mediation files; and

(11) Juvenile court probation's social files.

COMMENT: The three preceding paragraphs create exemptions for files that are already covered, at least in part, by exemptions in state statutes or elsewhere. These paragraphs are included here to make sure that there is no doubt about their exempt status. The inclusion of these three paragraphs should not be interpreted as excluding other statutory (or rule) exemptions that are not expressly listed here. Per section (e)(1)(A) above, exemptions existing in other rules, statutes, and other authorities apply to records under this rule, even if they are not expressly stated here.

FURTHER COMMENT: Additional express exemptions were also requested. Some were not included in the rule because it is currently believed that the items were already exempt from disclosure under other laws. These items include:


Private financial information, including financial account numbers;
Dockets/index information for protected case types; and
Testing/screening materials/results.

Other items were not included for other reasons, including when insufficient information was available to evaluate the items, such as information about the implications of excluding an item and about the variety of practices used by courts and judicial agencies. These items include:


Investigative records of regulatory or disciplinary agencies;
Copyrighted information; and
Performance measures for evaluating court processes. (Some of this subject matter is taken care of with the deliberative process exemption, above.)

(2) Chambers Records. Chambers records are not subject to disclosure.

(3) Administrative Records--Process for Access.

(A) Administrative Records--Procedures for Records Requests.

(1) AGENCIES TO ADOPT PROCEDURES. Each court and judicial agency must adopt a policy implementing this rule and setting forth its procedures for accepting and responding to administrative records requests. The policy must include the designation of a public records officer and must require that requests for access be submitted in writing to the designated public records officer. Best practices for handling administrative records requests shall be developed under the authority of the Board for Judicial Administration.

(2) PUBLICATION OF PROCEDURES FOR REQUESTING ADMINISTRATIVE RECORDS. Each court and judicial agency must prominently publish the procedures for requesting access to its administrative records. If the court or judicial agency has a website, the procedures must be included there. The publication shall include the public records officer's work mailing address, telephone number, fax number, and e-mail address.

(3) INITIAL RESPONSE. Each court and judicial agency must initially respond to a written request for access to an administrative record within five working days of its receipt. The response shall acknowledge receipt of the request and include a good-faith estimate of the time needed to respond to the request. The estimate may be later revised, if necessary. For purposes of this provision, "working days" mean days that the court or judicial agency, including a part-time municipal court, is open.

(4) COMMUNICATION WITH REQUESTER. Each court and judicial agency must communicate with the requester as necessary to clarify the records being requested. The court or judicial agency may also communicate with the requester in an effort to determine if the requester's need would be better served with a response other than the one actually requested.

(5) SUBSTANTIVE RESPONSE. Each court and judicial agency must respond to the substance of the records request within the timeframe specified in the court's or judicial agency's initial response to the request. If the court or judicial agency is unable to fully comply in this timeframe, then the court or judicial agency should comply to the extent practicable and provide a new good faith estimate for responding to the remainder of the request. If the court or judicial agency does not fully satisfy the records request in the manner requested, the court or judicial agency must justify in writing any deviation from the terms of the request.

(6) EXTRAORDINARY REQUESTS LIMITED BY RESOURCE CONSTRAINTS. If a particular request is of a magnitude that the court or judicial agency cannot fully comply within a reasonable time due to constraints on the court's or judicial agency's time, resources, and personnel, the court or judicial agency shall communicate this information to the requester. The court or judicial agency must attempt to reach agreement with the requester as to narrowing the request to a more manageable scope and as to a timeframe for the court's or judicial agency's response, which may include a schedule of installment responses. If the court or judicial agency and requester are unable to reach agreement, then the court or judicial agency shall respond to the extent practicable and inform the requester that the court or judicial agency has completed its response.

(7) LIMITATIONS ON INMATE REQUESTS.

(i) The inspection or production of any nonexempt public record by persons incarcerated in federal, state, local, or privately operated correctional facilities may be enjoined pursuant to this section. The request shall be made by motion and shall be a summary proceeding based on affidavits or declarations, unless the court orders otherwise.

(ii) The injunction may be requested by a court or judicial agency which is the recipient of the records request or its representative, or by a person to whom the records request specifically pertains or his or her representative. The injunction request must be filed in the superior court in which the court or judicial agency which is the recipient of the records request is located. If the injunction request is filed by a superior court the decision on the injunction must be made by a visiting judicial officer.

(iii) The court may enjoin all or any part of a request or requests. In order to issue an injunction, the court must find by a preponderance of the evidence that: the request was made to harass or intimidate the court or judicial agency or its employees; fulfilling the request would likely threaten the security of the court or judicial agency; fulfilling the request would likely threaten the safety or security of staff, family members of staff, or any other person; or fulfilling the request may assist criminal activity. Based on the evidence, the court may also enjoin, for a period of time the court deems reasonable, future requests by the same requestor or an entity owned or controlled in whole or in part by the same requestor.

(iv) In deciding whether to enjoin a records request the court may consider all relevant factors including, but not limited to: other requests by the requestor; the type of record or records sought; statements offered by the requestor concerning the purpose for the request; whether disclosure of the requested records would likely harm any person or vital government interest; whether the request seeks a significant and burdensome number of documents; the impact of disclosure on the court's or judicial agency's security and order, the safety or security of court or judicial agency staff, families, or others; and the potential deterrence of criminal activity.

(v) The court or judicial agency shall not be liable for any attorney fees, costs, civil penalties, or fines under (e)(3)(B)(6) for any period during which an order under this section is in effect, including during an appeal of an order under this section, regardless of the outcome of the appeal.

(B) Administrative Records--Review of Public Records Officer's Response.

(1) NOTICE OF REVIEW PROCEDURES. The public records officer's response to a public records request shall include a written summary of the procedures under which the requesting party may seek further review.

(2) TIMELINE FOR SEEKING REVIEW. The timelines set forth in section (e)(3)(A) shall apply likewise to requests for review of the public records officer's response.

(3) FURTHER REVIEW WITHIN COURT OR AGENCY. Each court and judicial agency shall provide a method for review by the judicial agency's director, presiding judge, or judge designated by the presiding judge. For a judicial agency, the presiding judge shall be the presiding judge of the court that oversees the agency. The court or judicial agency may also establish intermediate levels of review. The court or judicial agency shall make publicly available the applicable forms. The review proceeding is informal and summary. The review proceeding shall be held within five working days. If that is not reasonably possible, then within five working days the review shall be scheduled for the earliest practical date.

(4) ALTERNATIVE REVIEW. As an alternative to review under section (e)(3)(B)(3), a requesting person may seek review by a person outside the court or judicial agency. If the requesting person seeks review of a decision made by a court or made by a judicial agency that is directly reportable to a court, the outside review shall be by a visiting judicial officer. If the requesting person seeks review of a decision made by a judicial agency that is not directly reportable to a court, the outside review shall be by a person agreed upon by the requesting person and the judicial agency. In the event the requesting person and the judicial agency cannot agree upon a person, the presiding superior court judge in the county in which the judicial agency is located shall either conduct the review or appoint a person to conduct the review. The review proceeding shall be informal and summary. In order to choose this option, the requesting person must sign a written waiver of any further review of the decision by the person outside the court or judicial agency. The decision by the person outside the court or judicial agency is final and not appealable. Attorney fees and costs are not available under this option.

COMMENT: The bifurcated procedures for review are intended to provide flexible, prompt, informal, and final procedures for review of public records decisions. The option for a visiting judge allows a requester to have the review heard by an outside decision-maker; in the interest of obtaining prompt, final decisions, a requester selecting this option would be required to waive further review. If the Legislature creates a new entity to review public records decisions made by agencies of the executive branch, then the work group recommends that the BJA consider using this entity for review of judicial records decisions as well.

(5) REVIEW IN SUPERIOR COURT.

(i) A requester may seek review of a decision under section (e)(3)(B)(3) by commencing an action in superior court. The burden of proof shall be on the court or judicial agency that made the public records decision to establish that refusal to permit public inspection and copying is in accordance with section (e)(1) which exempts or prohibits disclosure in whole or in part of specific information or records. Judicial review of all court or judicial agency actions shall be de novo. The superior court shall apply section (e)(1) of this rule in determining the accessibility of the requested documents. Any ambiguity in the application of section (e)(1) to the requested documents shall be resolved by analyzing access under the common law's public-access balancing test.

COMMENT: A civil proceeding to review a denial may be brought in superior court in the same manner as under the Public Records Act.

The common law's balancing test is addressed in detail in Cowles Publishing v. Murphy, 96 Wn.2d 584 (1981), and Beuhler v. Small, 115 Wn.App. 914 (2003). The interest in disclosure is balanced against the extent to which disclosure poses a significant risk to individual privacy or safety.

(ii) The right of de novo review is not available to a requester who sought review under the alternative process set forth in section (e)(3)(B)(4).

COMMENT: The Supreme Court may wish to clarify any period of limitation on the bringing of an action for judicial review under this section, expressly or by reference to the limitations on such actions under the Public Records Act.

(6) MONETARY SANCTIONS.

(i) In the de novo review proceeding under section (e)(3)(B)(5), the superior court may in its discretion award reasonable attorney fees and costs to a requesting party if the court finds that (1) the court's or judicial agency's response was deficient, (2) the requester specified the particular deficiency to the court or judicial agency, and (3) the court or judicial agency did not cure the deficiency.

(ii) Sanctions may be imposed against either party under CR 11, if warranted.

(iii) Except as provided in sections (e)(3)(B)(6)(i) and (ii), a court or judicial agency may not be required to pay attorney fees, costs, civil penalties, or fines.

COMMENT: Monetary penalties for failure to produce records available under the Public Records Act are not available under this rule.

(iv) No individual judicial officers or court or judicial agency employees may be assessed a monetary sanction under this section (6).

COMMENT: Only a court or judicial agency may be assessed monetary sanctions, not an individual. This is consistent with the approach of the Public Records Act. The monetary sanctions would be payable from state/city/county funds, absent some insurance or risk pool availability.

(f) Administrative Records--Court and Judicial Agency Rules. Each court by action of a majority of the judges may from time to time make and amend local rules governing access to administrative records not inconsistent with this rule. Each judicial agency may from time to time make and amend agency rules governing access to its administrative records not inconsistent with this rule.

(g) Judicial Records--Charging of Fees.

(1) A fee may not be charged to view administrative records.

(2) A fee may be charged for the photocopying or scanning of judicial records. If another court rule or statute specifies the amount of the fee for a particular type of record, that rule or statute shall control. Otherwise, the amount of the fee may not exceed the amount that is authorized in the Public Records Act, Chapter 42.56 RCW.

(3) The court or judicial agency may require a deposit in an amount not to exceed ten percent of the estimated cost of providing copies for a request. If a court or judicial agency makes a request available on a partial or installment basis, the court or judicial agency may charge for each part of the request as it is provided. If an installment of a records request is not claimed or reviewed within 30 days, the court or judicial agency is not obligated to fulfill the balance of the request.

COMMENT: Paragraph (3) incorporates a modified version of the Public Records Act's "deposit and installments" language.]

(4) A fee not to exceed $30 per hour may be charged for research services required to fulfill a request taking longer than one hour. The fee shall be assessed from the second hour onward.

COMMENT: The authority to charge for research services is discretionary, allowing courts to balance the competing interests between recovering the costs of their response and ensuring the open administration of justice. The fee should not exceed the actual costs of response. It is anticipated that a best-practices group will consider further guidelines in this area, including fee waivers.

(h) Best Practices. Best practice guidelines adopted by the Supreme Court may be relied upon in acting upon public requests for documents.

COMMENT: A new work group is contemplated to recommend best practices to guide courts and judicial agencies in implementing this rule's necessarily broad, general standards. Courts and judicial agencies would benefit greatly from further work in applying the general principles to the specific types of documents and requests that are most likely to arise. For example, best practices could include designating more specific lists of records that are presumptively characterized as "chambers records" or as being within other categories of records under this rule. The BJA's first work group prepared some documents to assist a new best-practices group in this regard. The best-practices group could also recommend the best methods and resources for training judges and staff.

(i) Effective Date of Rule.

(1) This rule goes into effect on July 1, 2012, and applies to records that are created on or after that date.

COMMENT: A delayed implementation date is used to allow time for development of best practices, training, and implementation.

(2) Public access to records that are created before that date are to be analyzed according to other court rules, applicable statutes, and the common law balancing test. The Public Records Act, Chapter 42.56 RCW, does not apply to judicial records, but it may be used for non-binding guidance.

Reviser's note: The typographical error in the above material occurred in the copy filed by the State Supreme Court and appears in the Register pursuant to the requirements of RCW 34.08.040.

Reviser's note: The brackets and enclosed material in the text of the above section occurred in the copy filed by the agency and appear in the Register pursuant to the requirements of RCW 34.08.040.

Washington State Code Reviser's Office