IN THE MATTER OF THE ADOPTION OF NEW GR 31.1 - ACCESS TO ADMINISTRATIVE RECORDS

) ) ) )

ORDER NO. 25700-A-1009

     The Court having considered a proposed new GR 31A - Access to Administrative Records, and having considered written public comments and testimony received during a public hearing on February 6, 2012, and

     The Court having made substantial revisions to the proposed rule in response to the public comments, including renumbering the rule as GR 31.1, and

     The Court having approved the new GR 31.1 for publication for the receipt of further comments;

     Now, therefore, it is hereby

     ORDERED:

     (a) That pursuant to the provisions of GR 9(g), the new proposed GR 31.1 as shown below is to be published for comments in the Washington Reports, Washington Register, Washington State Bar Association and Administrative Office of the Court's websites in September, 2012.

     (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 December 31, 2012. Comments may be sent to the following addresses: P.O. Box 40929, Olympia, Washington 98504-0929, or Denise.Foster@courts.wa.gov. Comments submitted by e-mail message must be limited to 1500 words.

     DATED at Olympia, Washington this 10th day of September, 2012.

	For the Court
	Madsen, C.J.
	CHIEF JUSTICE

     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 hearings 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 the 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.

     (b) Overview of Public Access to Judicial Records. There are three categories of judicial records.

     (1) Case records are records that relate to in-court proceedings, including case files, dockets, calendars, and the like. Public access to these records is governed by GR 31, which refers to these records as "court records," and not by this GR 31.1. Under GR 31, these records are presumptively open to public access, subject to stated exceptions.

     (2) Administrative records are records that relate to the management, supervision, or administration of a judicial entity. A more specific definition of this term is in section (i) of this rule. Under section (j) of this rule, administrative records are presumptively open to public access, subject to exceptions found in sections (j) and (l) of this rule.

     (3) Chambers records are records that are kept in a judge's chambers. A more specific definition of this term is in section (m) of this rule. Under section (m), chambers records are not open to public access.

     (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) RECORDS REQUESTS THAT INVOLVE HARASSMENT, INTIMIDATION, THREATS TO SECURITY, OR CRIMINAL ACTIVITY.

     (i) The inspection or production of any nonexempt public record may be enjoined for the reasons set forth in section (c)(7)(iii). 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.

     COMMENT: Section 7 is based on the PRA's provision that provides an injunction process for inmate requests that involve harassment or other specified improper purposes. See RCW 42.56.565. Section 7 expands the PRA's provision so that it applies to any person whose request involves the improper purpose. The statute's paragraph on attorney fees was omitted, because this rule does not allow attorney fees.

     (d) Review of Records Decision.

     (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) DEADLINE FOR SEEKING INTERNAL REVIEW. A record requester's petition under section (d)(3) seeking internal review of a public records officer's decision must be submitted within 90 days of the public records officer's decision.

     (3) INTERNAL 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) EXTERNAL REVIEW. Upon the exhaustion of remedies under section (d)(3), a record requester aggrieved by a court or agency decision may obtain further review by choosing between the two alternatives set forth in subsections (i) and (ii) of this section (d)(4).

     (i) REVIEW VIA CIVIL ACTION IN COURT. The requesting person may use a process already existing outside of this rule, such as a judicial writ, to file a civil action in court challenging the records decision.

     (ii) ADMINISTRATIVE REVIEW BY VISITING JUDGE OR OTHER OUTSIDE DECISION MAKER. The requesting person may seek administrative 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 under this subsection (ii) is final and not appealable.

     COMMENT: Section (4)(i) ensures that record requesters may still go to court if they wish, while section (4)(ii) offers requesters an option to resolve the issue in an informal and speedier manner. Neither section (4)(i) nor section (4)(ii) creates a new cause of action in court; section (4)(i) merely recognizes the existence of other methods for filing a civil action in court; section (4)(ii) merely creates what is essentially a higher level of administrative review.

     (iii) MONETARY AWARDS NOT ALLOWED. Attorney fees, costs, civil penalties, or fines may not be awarded under either alternative for external review.

     (iv) DEADLINE FOR SEEKING EXTERNAL REVIEW. A request for external review must be submitted within 30 days of the issuance of the court or judicial agency's final decision under section (d)(3).

     (e) Persons Who Are Subjects of Records.

     (1) Unless otherwise required or prohibited by law, a court or judicial agency has the option of notifying a person named in a record or to whom a record specifically pertains, that access to the record has been requested.

     (2) A person who is named in a record, or to whom a record specifically pertains, may present information opposing the disclosure to the applicable decision maker under sections (c) and (d).

     (3) If a court of judicial agency decides to allow access to a requested record, a person who is named in that record, or to whom the record specifically pertains, has a right to initiate review under subsections (d)(3)-(4) or to participate as a party to any review initiated by a requester under subsections (d)(3)-(4). If either the record subject or the record requester objects to administrative review under subsection (d)(4)(ii), such alternative shall not be available. The deadlines that apply to a requester apply as well to a person who is a subject of a record.

     COMMENT: Subsection (1) is adapted from the PRA statute, which allows but does not require agencies to notify a person who is a subject of a record. Subsection (2) allows the subject of a record to oppose release and present argument in support of the opposition. Subsection (3) allows a person who is a subject of a record to initiate the next level of review.

     (f) Bad Faith Decisions. Records decisions made in bad faith are grounds for discipline.

     (1) If the decision maker is a judge, sanctions may be imposed by the Commission on Judicial Conduct for violations of the Code of Judicial Conduct;

     (2) If the decision maker is an attorney, other than a judge, sanctions may be imposed by the Washington State Bar Association for violations of the Rules of Professional Conduct;

     (3) If the decision maker is a judicial employee, sanctions may be imposed through personnel actions.

     (g) 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.

     (h) 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.

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

     (5) "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.

     (6) "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 (6) 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.

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

     (j) Administrative Records -- General Right of Access. The public has a presumptive 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 including the Public Records, Act, Chapter 42.56 RCW, court orders, or case law. To the extent that an ambiguity exists as to whether records access would be exempt or prohibited under this rule or other enumerated sources, responders and reviewing authorities shall be guided by the Public Records Act, Chapter 42.56 RCW, in making interpretations 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.

     (k) Entities Subject to 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:

     (i) 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;

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

     (iii) All subgroups of the entities listed in this section (k)(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 applies to the Office of Civil Legal Aid and the Office of Public Defense.

     (3) This rule does not apply to the Washington State Bar Association. Public access to the Bar Association's records is governed by [a proposed General Rule 12.4, pending before the Supreme Court].

     (4) 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.

     (5) 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.

     (6) 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.

     (l) Exemptions. In addition to exemptions referred to in section (j), the following categories of administrative records are exempt from public access:

     (1) Requests for judicial ethics opinions;

     (2) 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.

     (3) 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;

     COMMENT: Paragraph (3) is identical to the "deliberative process" exemption from the Public Records Act, RCW 42.56.280. The PRA's deliberative process exemption applies only until a final decision is made, see Progressive Animal Welfare Soc'y v. University of Wash., 125 Wn.2d 243, 257, 884 P.2d 592 (1994), at which point the deliberative documents become publicly accessible.

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

     COMMENT: Paragraph (4) 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.

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

     COMMENT: 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.

     (6) Documents related to an attorney's request for a trial or appellate court defense expert, investigator, or other services, any report or findings submitted to the attorney or court or judicial agency by the expert, investigator, or other service provider, and the invoicing and payment of the expert, investigator or other service provider;

     (7) 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;

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

     (9) Family court mediation files; and

     (10) Juvenile court probation social files.

     COMMENT: Paragraphs (8)-(10) 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 (j) of this rule, exemptions existing in other rules, statutes, and other authorities apply to records under this rule, even if they are not expressly stated here.

     (11) Those portions of records containing specific and unique vulnerability assessments or specific and unique emergency and escape response plans, the disclosure of which would have a substantial likelihood of threatening the security of a judicial facility or any individual's safety.

     COMMENT: Paragraph (11) expands on comparable language from the Public Records Act, RCW 42.56.420. The PRA language is limited to correctional facilities and the like.

     (12) The following records of the Certified Professional Guardian Board:

     (i) Investigative records compiled by the Board as a result of an investigation conducted by the Board as part of the application process, while a disciplinary investigation is in process under the Board's rules and regulations, or as a result of any other investigation conducted by the Board while an investigation is in process. Investigative records related to a grievance become open to public inspection upon the filing of a Board-approved complaint for disciplinary action.

     (ii) Deliberative records compiled by the Board or a panel or committee of the Board as part of a disciplinary process.

     (iii) Dismissed grievances shall be disclosed upon written request using established procedures for inspection, copying, and disclosure with identifying information about the grievant, incapacitated person, and professional guardian and/or agency redacted. A request for dismissed grievances shall cover a specified time period of not less than 12 months.

     COMMENT: The exemptions for the CPG Board are taken from the Board's regulations. The sentence at the end of paragraph (a) was added to reflect the manner in which the Board has interpreted this provision.

     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.

     (1) "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.

     (2) 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: 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.

     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 original 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.

     (o) Effective Date of Rule.

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

     COMMENT: A delayed effective date will be 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 errors in the above material occurred in the copy filed by the State Supreme Court and appear 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.