WSR 13-11-049

RULES OF COURT

STATE SUPREME COURT


[ May 10, 2013 ]

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

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ORDER

NO. 25700-A-1021


The Court having considered the Washington State Bar Association's proposal for a new General Rule (GR) 12.4 - Access to Records of the Washington State Bar Association, and having considered written public comments, and

The Court having made substantial revisions to the proposed rule in response to the public comments, and

The Court having approved new GR 12.4 for publication for an expedited 90-day period for the receipt of further comments;

Now, therefore, it is hereby

ORDERED:

(a) That pursuant to the provisions of GR 9(g), new proposed GR 12.4 as shown below is to be published for an expedited 90-day period for comments in the Washington Reports, Washington Register, Washington State Bar Association and Administrative Office of the Court's websites.

(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 August 26, 2013. 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 May, 2013.
For the Court

Madsen, C.J.
CHIEF JUSTICE

Background Statement


Proposed New Rule

GENERAL RULES (GR)

GR 12.4 - Access to Records of the Washington State Bar Association



Purpose:

Overview. Proposed GR 12.4 is a revised version of a proposal that was originally submitted by the Washington State Bar Association, which was published for public comment in November 2011. The proposal sets forth the standards and procedures related to public access to the Bar Association's records.

The Bar Association's summary of the original proposal is available at this link: http://www.courts.wa.gov/court_rules/?fa=court_rules.proposedRuleDisplayArchive&ruleId=269. Also available at that link is the original proposal and the public comments that were submitted.

Since the receipt of those public comments on the original proposal, the Supreme Court has held a series of meetings to consider the proposed rule and to make sure that it is consistent with the companion rule that is being drafted for public access to the judiciary's administrative records, proposed GR 31.1.

As part of that process, the Supreme Court requested that the Bar Association submit a revised version of the rule. The Supreme Court has made additional changes to that version and is now publishing the new version for the receipt of further public comments.

Summary of the revisions contained in the current proposed rule. The current version of the proposed rule involves many changes from the original proposal. The most notable changes include:


Presumption of public access. Language has been added to the rule's opening section expressly recognizing that Bar Association records are presumed to be open to public access, subject to exceptions. See section (a).
Revisions for the exemptions. The original proposal included a long list of exemptions, including many that were already set forth elsewhere and did not need to be repeated in this proposed rule. In the current proposal, the exemptions have been consolidated and many of the exemptions that are stated elsewhere have been deleted. See section (d).
Process for records decisions. Under the current proposal, the Bar Association will appoint a staff member to serve as its public records officer. A person who objects to a decision of the public records officer may request review by the Bar Association's Executive Director. Timelines are set forth for the steps in the process. See sections (e)(1) and (h)(1).
External review of records decisions. The current proposal has a new method for obtaining review of the Bar Association's records decisions. Decisions by the Bar's Executive Director are now subject to review by a Records Request Appeals Officer (RRAO), who is appointed by the Bar's Board of Governors. If a person objects to the RRAO's decision, further review may be sought by filing a request for discretionary review with the Supreme Court. If the Supreme Court grants review, the RRAO's decision would be reviewed by the Chief Justice or his or her designee; the designee must be a current or former elected judge. Timelines are set up for the steps in this external review process. See section (h)(2).
Addition of new language similar to that contained in the companion rule, proposed GR 31.1:
o Persons who are subjects of records. A provision has been added that allows the Bar Association to notify a person who is the subject of a record that the record has been requested. The person may then participate in the process for determining whether the record will be released. See section (d)(3).
o Charging of fees. A section has been added allowing the Bar Association to charge fees for copying/scanning records and to charge a research fee in some cases. See section (e)(2).
o No monetary awards. A provision is added stating that attorney fees, costs, penalties, or fines may not be awarded under the rule.
o Prospective effect of rule. A provision has been added specifying that the rule applies to records that are created on or after the rule's effective date. See section (j)(1).
o Delayed effective date. A provision has been added providing for a delayed effective date. The delayed effective date is designed to allow time for implementation. See section (j)(1).

PROPOSED 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. A presumption of public access exists for Bar records, but public 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. Records solely in the possession of hearing officers, non-Bar staff members of boards, committees, task forces, commissions, sections, councils, or divisions that were prepared by the hearing officers or the members and in their sole possession, including private notes and working papers, are not Bar records and are not subject to public access under this rule. 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 statute (including the Public Records Act, chapter 42.56 RCW) or federal statute or rule as they would be applied to a public agency, or is made confidential by the Rules of Professional Conduct, the Rules for Enforcement of Lawyer Conduct, the Admission to Practice Rules and associated regulations, 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, statutes or orders 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 expressly be made public by court rule:

a. Records of the personnel committee, and personal information in Bar records for employees, appointees, members, or volunteers of the Bar to the extent that disclosure would violate their right to privacy, including home contact information (unless such information is their address of record), Social Security numbers, driver's license numbers, identification or security photographs held in Bar records, and personal data including ethnicity, race, disability status, gender, and sexual orientation. Membership class and status, bar number, dates of admission or licensing, addresses of record, and business telephone numbers, facsimile numbers, and electronic mail addresses (unless there has been a request that electronic mail addresses not be made public) shall not be exempt, provided that any such information shall be exempt if the Executive Director approves the confidentiality of that information for reasons of personal security or other compelling reason, which approval must be reviewed annually.

b. Specific information and records regarding

1) internal policies, guidelines, procedures, or techniques, the disclosure of which would reasonably be expected to compromise the conduct of disciplinary or regulatory functions, investigations, or examinations;

2) application, investigation, and hearing or proceeding records relating to lawyer, Limited Practice Officer, or Limited License Legal Technician admissions, licensing or discipline, or that relate to the work of ELC 2.5 hearing officers, the Board of Bar Examiners, the Character and Fitness Board, the Law Clerk Board, the Limited Practice Board, the MCLE Board, the Limited License Legal Technician Board, the Practice of Law Board, or the Disciplinary Board in conducting investigations, hearings or proceedings; and

3) the work of the Judicial Recommendation Committee and the Hearing Officer selection panel, unless such records are expressly categorized as public information by court rule.

c. Valuable formulae, designs, drawings, computer source code or object code, and research data created or obtained by the Bar.

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

e. Applications for licensure by the Bar and annual licensing forms and related records, including applications for license fee hardship waivers and any decision or determinations on the hardship waiver applications.

f. Requests by members for ethics opinions to the extent that they contain information identifying the member or a party to the inquiry.

Information covered by exemptions will be redacted from the specific records sought. Statistical information not descriptive of any readily identifiable person or persons may be disclosed.

3. Persons Who Are Subjects of Records.

a. Unless otherwise required or prohibited by law, the WSBA has the option to give notice of any records request to any member or third party whose records would be included in the WSBA's response.

b. Any 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.

c. If the Bar decides to allow access to a requested record, a person who is named in that record, or to whom the records specifically pertains, has a right to initiate review or to participate as a party to any review initiated by a requester. The deadlines that apply to a requester apply as well to a person who is a subject of a record.

(e) Bar Records -- Procedures for Access.

1. General Procedures. The Bar Executive Director shall appoint a Bar staff member to serve as the public records officer to whom all records requests shall be submitted. Records requests must be in writing and delivered to the Bar public records officer, who shall respond to such requests within 30 days of receipt. The Washington State Bar Association must implement this rule and adopt and publish on its website the public records officer's work mailing address, telephone number, fax number, and e-mail address, and the procedures and fee schedules for accepting and responding to records requests by the effective date of this rule. The Bar shall acknowledge receipt of the request within 14 days of receipt, and shall communicate with the requester as necessary to clarify any ambiguities as to the records being requested. Records requests shall not be directed to other Bar staff or to volunteers serving on boards, committees, task forces, commissions, sections, councils, or divisions.

2. Charging of Fees.

a. A fee may not be charged to view Bar records.

b. A fee may be charged for the photocopying or scanning of Bar records according to the fee schedule established by the Bar and published on its website.

c. 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.

(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 time, resources, and personnel, the Bar shall communicate this information to the requester along with a good faith estimate of the time needed to complete the Bar's response. 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, clarify how and why the response differs from the request, 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 as well as a written summary of the procedures under which the requesting party may seek further review.

(h) Review of Records Decisions.

1. Internal Review. A person who objects to a record decision or other action by the Bar's public records officer may request review by the Bar's Executive Director.

a. A record requester's petition for internal review must be submitted within 90 days of the Bar's public records officer's decision, on such form as the Bar shall designate and make available.

b. The review proceeding is informal, summary, and on the record.

c. 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.

2. External Review. A person who objects to a records review decision by the Bar's Executive Director may request review by the Records Request Appeals Officer (RRAO) for the WSBA.

a. The requesting party's request for review of the Executive Director's decision must be deposited in the mail and postmarked or delivered to the Bar not later than 30 days after the issuance of the decision, and must be on such form as the Bar shall designate and make available.

b. The review will be informal and summary, but in the sole discretion of the RRAO may include the submission of briefs no more than 20 pages long and of oral arguments no more than 15 minutes long.

c. Decisions of the RRAO are final unless, within 30 days of the issuance of the decision, a request for discretionary review of the decision is filed with the Supreme Court. If review is granted, review is conducted by the Chief Justice of the Washington Supreme Court or his or her designee in accordance with procedures established by the Supreme Court. A designee of the Chief Justice shall be a current or former elected judge. The review proceeding shall be on the record, without additional briefing or argument unless such is ordered by the Chief Justice or his or her designee.

d. The RRAO shall be appointed by the Board of Governors. The Bar may reimburse the RRAO for all necessary and reasonable expenses incurred in the completion of these duties, and may provide compensation for the time necessary for these reviews at a level established by the Board of Governors.

(i) Monetary Awards Not Allowed. Attorney fees, costs, civil penalties, or fines may not be awarded under this rule.

(j) Effective Date of Rule.

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

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 such Bar records, but it may be used for non-binding guidance.