WSR 11-23-032

RULES OF COURT

STATE SUPREME COURT


[ November 3, 2011 ]

IN THE MATTER OF THE ADOPTION OF NEW GR 12.4-WASHINGTON STATE BAR ASSOCIATION ACCESS TO RECORDS )

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ORDER

NO. 25700-A-986


The Washington State Bar Association having recommended the adoption of the proposed New GR 12.4-Washington State Bar Association Access to 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 is to be published for comment in the Washington Reports, Washington Register, Washington State Bar Association and Administrative Office of the Court's websites in January, 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 April 30, 2012. 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 3rd day of November, 2011.
For the Court

Madsen, C.J.


CHIEF JUSTICE



GR 9 COVER SHEET

Suggested New Rule

GENERAL RULES (GR)

Rule 12.4 - Washington State Bar Association Access to Records

Submitted by the Board of Governors of the Washington State Bar Association




Purpose: 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). In addition, the Washington State Bar Association is not a state agency but rather is an extension or arm of the judiciary. General Rule 31, which addresses public access to "court records," does not apply to the WSBA or the WSBA's records; it applies only to court case files and related documents about judicial proceedings.

The WSBA believes that public access to its records is most properly addressed by court rule. The Board for Judicial Administration (BJA) has drafted a new proposed GR 31A, which covers public access to the judiciary's administrative documents; however, because the WSBA performs regulatory, licensing, and disciplinary functions which are inextricably intertwined, the WSBA is unique and would not easily fit within the parameters of rules intended to apply to entities performing judicial functions. The WSBA therefore coordinated with the BJA to draft its own proposed rule.

The proposed rule defines "bar records" and takes into account the confidentiality requirements imposed by the Rules for Enforcement of Lawyer Conduct, the Admission to Practice Rules, and other court rules and statutes. The proposed rule also includes specific exemptions (many of which are included in the WSBA's current bylaws), as well as provisions for redaction and provision of statistical information. Finally, the rule also provides that denials may be reviewed by the Chief Justice of the Washington Supreme Court.



SUGGESTED NEW RULE

GENERAL RULES (GR)


Rule 12.4 - Washington State Bar Association Access to Records



(a) Policy and Purpose. It is the policy of the Washington State Bar Association to facilitate access to Bar records. Access to Bar records is not absolute and shall be consistent with reasonable expectations of personal privacy, restrictions in statutes, restrictions in court rules, or as provided in court orders or protective orders issued under court rules. Access shall not unduly burden the business of the Bar.

(b) Scope. This rule governs the right of public access to Bar records. This rule applies to the Washington State Bar Association and its subgroups operated by the Bar including the Board of Governors, committees, task forces, commissions, boards, offices, councils, divisions, sections, and departments. This rule also applies to boards and committees under GR 12.2 administered by the Bar. A person or entity entrusted by the Bar with the storage and maintenance of Bar records is not subject to this rule and may not respond to a request for access to Bar records, absent express written authority from the Bar or separate authority in rule or statute to grant access to the documents.

(c) Definitions.

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

(2) "Bar record" means any writing containing information relating to the conduct of any Bar function prepared, owned, used, or retained by the Bar regardless of physical form or characteristics. Bar records include only those records in the possession of the WSBA and its staff or stored under Bar ownership and control in facilities or servers and do not include records solely in the possession of members of boards, committees, task forces, commissions, sections, councils, and divisions. Nothing in this rule requires the Bar to create a record that is not currently in possession of the Bar at the time of the request.

(3) "Writing" means handwriting, typewriting, printing, photostating, photographing, and every other means of recording any form of communication or representation in paper, digital or other format.

(d) Bar Records - Right of Access.

1. The Bar shall make available for inspection and copying all Bar records, unless the record falls within the specific exemptions of this rule or any other state or federal statute or rule, or is made confidential by the Rules of Professional Conduct, the Rules for Enforcement of Lawyer Conduct, the Admission to Practice Rules, the Rules for Enforcement of Limited Practice Officer Conduct, General Rule 25, court orders or protective orders issued under those rules, or any other state or federal statute or rule. To the extent required to prevent an unreasonable invasion of personal privacy interests or threat to safety or by the above-referenced rules, statutes or orders, the Bar shall delete identifying details in a manner consistent with those rules when it makes available or publishes any Bar record; however, in each case, the justification for the deletion shall be explained in writing.

2. In addition to exemptions referenced above, the following categories of Bar records are exempt from public access except as may be specifically made public by court rule:

a. Personal information in files maintained for employees, appointees, members, volunteers, or elected officials of the Bar to the extent that disclosure would violate their right to privacy.

b. Specific information and investigative records, relating to lawyer or Limited Practice Officer admissions or discipline that are not expressly categorized as public information by court rule.

c. Test questions, scoring keys, and other examination data including individual scores, used by the Bar to administer a license, employment, or academic examination.

d. The contents of real estate appraisals made by or for the Bar relative to the acquisition or sale of property, until the project or prospective sale is abandoned or until such time as all of the property has been acquired or the property to which the sale appraisal relates is sold, but in no event shall disclosure be denied for more than three years after the appraisal.

e. Research data, protected intellectual property and proprietary information.

f. Information regarding the infrastructure, integrity, and security of computer and telecommunication networks, databases, and systems.

g. Preliminary or intra-Bar memoranda, notes, and e-mails, and other documents in which recommendations or opinions are expressed or policies formulated or recommended, except when referenced during an open meeting or cited by the Bar in connection with any of its actions.

h. Information regarding internal policies, guidelines, procedures, or techniques, the disclosure of which is reasonably likely to compromise the conduct of disciplinary or regulatory functions, investigations, examinations, or litigation.

i. Applications for employment with the Bar, including the names of applicants, resumes, and other related materials submitted with respect to an applicant.

j. Information that identifies a person who, while a Bar employee:

1) seeks advice, under an informal process established by the Bar, in order to ascertain his or her rights in connection with a potentially discriminatory or unfair employment practice; and

2) requests his or her identity or any identifying information not be disclosed.

k. Personal identifying information held in Bar records, including individuals' home contact information unless such information is their address of record, Social Security numbers, driver's license numbers, dates of birth, and identification or security photographs held in Bar records.

l. Personal data of individual members, including but not limited to ethnicity, race, disability status, gender, and sexual orientation; however membership class and status, bar number, dates of admission, addresses of record, and business telephones, facsimile numbers, and electronic mail addresses (unless the member has requested that electronic mail addresses not be made public), shall not be exempt, provided that, for reasons of personal security or other compelling reason, the Executive Director may, on an annual basis, approve the confidentiality of any such information in which case it shall be exempt.

m. Credit card numbers, debit card numbers, electronic check numbers, card expiration dates, access codes, Personal Identification Numbers (PINs), or bank or other financial account numbers.

n. Mailing lists, except that member lists may be released for non-commercial purposes or to CLE or other vendors providing legal-related services.

o. Applications for admission to the Bar and annual licensing forms and related records.

p. Information which would identify bar examiners responsible for writing and/or grading specific bar exam questions.

q. Proceedings and records of the Board of Bar Examiners.

r. Information, records, or documents of the Law Clerk Board that relate to any application for admission to the Law Clerk program, or to the retention of any current participant in the Law Clerk program.

s. Information, records, or documents of the Practice of Law Board regarding the investigation, or potential investigation, of any incident or alleged incident of the unauthorized practice of law, except material submitted to other agencies after a finding of unauthorized practice of law.

t. Information, records, or documents of the Character and Fitness Board that relate to any application for admission, special admission, special licensing, or change of membership status or class, except where those proceedings are specifically made public by court rule.

u. Records relating to requests by members for ethics opinions to the extent that they contain information identifying the member or a party to the inquiry.

v. Proceedings and records of the Judicial Recommendation Committee.

w. Records and proceedings of any Fee Arbitration Program, Mediation Program, or other alternative dispute resolution program which may be administered by the Bar.

x. Records and proceedings of the Personnel Committee.

y. Records and proceedings of the Awards Committee.

z. Records and proceedings of the Hearing Officer Selection Panel;

aa. Personnel records of Bar employees, whether regular, temporary, or contract, except for information relating to compensation for job classifications, verifying periods of employment or, when specifically requested, the Executive Director's current annual compensation;

bb. Applications for license fee hardship waivers and any decision or determination on them;

cc. Continuing Legal Education attendance rosters;

dd. Copyrighted material.

ee. Any material which is subject to attorney/client privilege.

ff. Records that are relevant to a controversy to which the WSBA is a party but which would not be available to another party under the rules of pretrial discovery for causes pending in the superior courts.

The above exempted information will be redacted from the specific records sought. Statistical information not descriptive of any readily identifiable person or persons may be disclosed. The WSBA may, but is under no obligation to, give notice of any records request to any member or third party whose records would be included in the WSBA's response.

(e) Bar Records -- Procedures for Access. The Bar Executive Director serves as the public records officer to whom all records requests shall be submitted. Records requests must be in writing and delivered to the WSBA Executive Director, who shall respond to such requests within 30 days of receipt. The Washington State Bar Association must implement this rule and set forth its procedures and fee schedules for accepting and responding to records requests by the effective date of this rule.

(f) Extraordinary Requests Limited by Resource Constraints. If a particular request is of a magnitude or burden on resources that the Bar cannot fully comply within 30 days due to constraints on the time, resources, and personnel, the Bar shall communicate this information to the requester. The Bar 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 Bar's response, which may include a schedule of installment responses. If the Bar and requester are unable to reach agreement, the Bar shall respond to the extent practicable and inform the requester that it has completed its response.

(g) Denials. Denials must be in writing and shall identify the applicable exemptions or other bases for denial.

(h) Review of denials. The exclusive remedy for denial of a record request by the Executive Director is review by the Chief Justice of the Washington Supreme Court. Requests for review of denials must be in writing and delivered to the Executive Director within 14 days of the date of the Executive Director's decision. The Executive Director shall forward timely requests for review to the Chief Justice of the Washington Supreme Court within 14 days of receipt.

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.

Washington State Code Reviser's Office