AN ACT Relating to privacy of nonconviction records; amending RCW 10.97.050; adding a new section to chapter 26.50 RCW; adding a new chapter to Title 10 RCW; and creating a new section.

NEW SECTION.  Sec. 1   The legislature finds that with the increasing ease of access to online information about individuals, including in court files, and the increasing use of such information in background checks for employment and housing and other purposes, individuals are being unfairly deprived of employment and housing opportunities and otherwise harmed by governmental records of cases that either never resulted in convictions or are not now convictions, are duplicative, or could be misleading. Statutes and court rules governing other remedies, such as sealing and redaction, have been either insufficient to, or inappropriate for, remedying this harm.
     The legislature recognizes that most other states limit public dissemination of nonconviction data by the courts. These limits are in place because of the privacy interests harmed by unfettered dissemination. Despite the fact that Washington has traditionally been very protective of individual privacy, Washington does not currently provide any of the protections against court dissemination of nonconviction data that are found in other states.
     Washington's legislature has long provided protection to individuals for nonconviction data in law enforcement records. The legislature has given the courts effective mechanisms for sealing juvenile court records from public access when the affected individual makes a motion and showing to the court of certain specified circumstances. Finally, Washington courts already keep the information contained in some court records, such as those pertaining to paternity or adoption, confidential. These procedures have been in place for many years and they comply with the constitutional requirement for open courts.
     Therefore, it is the intent of the legislature to provide clarity in the information publicly disseminated by the courts and other criminal justice agencies about individuals in order to protect people's privacy. This intent is best served by having the courts and other criminal justice agencies provide information to the public that does not involve either an unfiled case or a case that resulted in an exonerating disposition. With respect to criminal justice agencies, this goal is accomplished by way of statutes currently providing for deletion of qualifying records. With respect to the courts, this goal is best accomplished by statute requiring that qualifying records be kept confidential.

NEW SECTION.  Sec. 2   The definitions in this section apply throughout this chapter unless the context clearly requires otherwise.
     (1) "Criminal history record information" has the same meaning as in RCW 10.97.030(1).
     (2) "Nonconviction data" has the same meaning as in RCW 10.97.030(2), and shall also include all criminal history record information relating to a conviction that has been vacated under RCW 9.94A.640 or 9.96.060.
     (3) "Conviction record" means criminal history record information relating to an incident which has led to a conviction or other disposition adverse to the subject, unless that conviction has been vacated pursuant to RCW 9.94A.640 or 9.96.060.
     (4) "Conviction or other disposition adverse to the subject" has the same meaning as in RCW 10.97.030(4).
     (5) "Criminal justice agency" has the same meaning as in RCW 10.97.030(5).
     (6) "The administration of criminal justice" has the same meaning as in RCW 10.97.030(6).
     (7) "Disposition" has the same meaning as in RCW 10.97.030(7).
     (8) "Dissemination" has the same meaning as in RCW 10.97.030(8).

NEW SECTION.  Sec. 3   (1) "Record of exonerating disposition" means a record held by a court or judicial agency that would be nonconviction data if collected by a criminal justice agency other than a court. This shall not include acquittals by reason of insanity or dismissals based on lack of competency. This shall include otherwise qualifying records that are part of court indices and records of public judicial proceedings. This shall also include a record relating to an incident where:
     (a) A probable cause hearing was held and the court found there was no probable cause;
     (b) A charge was resolved by the prosecutor's acceptance of bail forfeiture; or
     (c) A charge was dismissed pursuant to a stipulated order of continuance.
     (2) A record of exonerating disposition held by a court or judicial agency shall, upon the motion of the person who is the subject of the record, be kept confidential by that court or judicial agency, except that the information shall be available to court personnel, judicial officers, law enforcement, prosecuting agencies, the individual identified in the records, and the attorney for that individual.
     (3) The person filing a motion under this section may file it within thirty days after the exonerating disposition occurs and bears the burden of proving: (a) The record consists of an exonerating disposition, and (b) continued public access to the record poses a risk of harm to the subject of the record. Proof of these two circumstances is sufficient to constitute a compelling circumstance and concern, a serious and imminent threat to important interests, and a need for confidentiality which outweighs the public interest in and need for access to the record. The person filing the motion shall also file, together with the motion, the proposed order contained in section 4 of this act. Thereafter, the proceedings in the case shall be treated as if they never occurred, and the subject of the records may reply accordingly to any inquiry about the events, records of which are kept confidential. Any agency shall reply to any inquiry concerning confidential records that the records are confidential, and no information can be given about the existence or nonexistence of records concerning an individual.
     (4) A reasonable processing fee, not to exceed fifty dollars, may be charged by the clerk of the court at the time the motion is filed.
     (5) Upon a showing of need, a court may authorize public access to the information but with the defendant's name redacted.
     (6) The administrative office of the courts shall provide forms to facilitate the filing motions under this section by persons not represented by an attorney.

NEW SECTION. Sec. 4 The following order shall be used by the court in ordering that records be kept confidential.

IN THE SUPERIOR COURT OF THE STATE OF WASHINGTON IN AND FOR THE COUNTY OF . . . . . .
STATE OF WASHINGTON		Case No.
Plaintiff,	. . . . . . . . . . . .
vs.	ORDER TO KEEP RECORDS CONFIDENTIAL PURSUANT TO RCW . . . . . .
. . . . . . . . . . . . ,	[ ] AGREED ORDER
Defendant.	CLERK'S ACTION: REQUIRED
I. BASIS
THIS MATTER has been brought before the court by the defendant, who seeks an order to make all court records of this case, including electronic indices, confidential. The court has carefully, and independent of the parties, considered (1) the relevant court records; (2) the files, pleadings, and other supporting materials submitted herein; (3) the requirements of GR 15; (4) the open courts provision of the Washington state Constitution (Article 1, section 10); and (5) cases interpreting those provisions. The defendant [ ] HAS or [ ] HAS NOT paid the reasonable fees associated with this motion.
II. FINDINGS
In support of this order, the court hereby makes the following FINDINGS:
2.1 An exonerating disposition [ ] IS or [ ] IS NOT the outcome in this case.
2.2 The defendant [ ] HAS or [ ] HAS NOT shown a need for keeping the records confidential and a compelling circumstance and concern, a serious and imminent threat to important interests, and a need for confidentiality because: [ ] There is a compelling need for privacy in these records, which is a concern recognized by the legislature in this act. The records were open to the public while the case was pending before the court. Public court records are, and will continue to be, freely and instantly available worldwide if they are not now held confidential. This dissemination creates a serious and imminent threat that they will then be used to unfairly deny access to employment, housing, travel, or other interests recognized as important by the legislature in this act. [ ] . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
2.3 Adequate notice [ ] WAS or [ ] WAS NOT given to the appropriate parties.
2.4 The request to keep the records confidential has been carefully analyzed and the defendant [ ] HAS shown that keeping the records confidential is the least restrictive means available and will be effective to protect the threatened interests of the defendant because the records will be kept intact but confidential, where they will remain accessible to court personnel, judicial officers, law enforcement, prosecuting agencies, the individual identified in the records, and the attorney for that individual. Public access to the information can be ordered upon a showing of need, with names redacted or [ ] HAS NOT shown that keeping the records confidential is the least restrictive means available and will be effective to protect the threatened interests of the defendant because: . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
2.5 As specifically as possible, the court has weighed the compelling interests of the defendant and the public and has considered suggested alternatives (such as redaction or partial sealing) and has concluded that [ ] NO ALTERNATIVE to keeping the records confidential would be adequate to prevent the risk of harm shown by the defendant or [ ] THE FOLLOWING ALTERNATIVE to keeping the records confidential would be adequate to prevent the risk of harm shown by the defendant . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
2.6 This order [ ] DOES NOT EXPIRE and is no broader in its application or duration than necessary to serve its purpose, in that the records remain intact and accessible for some purposes and can be made public (with names redacted) if a showing of need is made, and it would be an unjust burden to require the defendant to seek renewal of this order in the future when the outcome of the case is an exonerating disposition that will not change or [ ] EXPIRES ON . . . . . . . . . . . . . . . , . . . . . ., unless application to renew this order is made.
III. ORDER
Based on the above findings, the defendant's motion to keep records confidential is:
(a) GRANTED and:
(i) All records in the above numbered action, including electronic indices, are now hereby ordered to be kept confidential and removed from public dissemination.
(ii) The proceedings in this case shall be treated as if they never occurred, and the subject of the records may reply accordingly to any inquiry about the events.
(iii) The courts and any agency shall reply to any inquiry concerning confidential records by indicating that the records are confidential, and no information can be given about the existence or nonexistence of records concerning an individual.
(b) DENIED [ ] with or [ ] without prejudice.
	DATED this . . . . . . day of . . . . . ., 20. ..
	. . . . . . . . . . . . . . . . . . . . . .
	JUDGE/COMMISSIONER
Submitted by:
. . . . . . . . . . . .
Defendant, Attorney for Defendant and WSBA No.
Copy received and [ ] Approved as to Form and [ ] Approved for Entry:
. . . . . . . . . . . .
Prosecuting Attorney, WSBA No.

NEW SECTION.  Sec. 5   A new section is added to chapter 26.50 RCW to read as follows:
     (1) Courts and other criminal justice agencies shall not make available publicly on the internet any information regarding the registration, filing of a petition for, or issuance of an order for protection if:
     (a) Such publication would be likely to publicly reveal the identity or location of the party protected under such order;
     (b) The request for issuance of an order for protection has been withdrawn; or
     (c) After a hearing, the court has declined to issue an order for protection.
     (2) Courts and other criminal justice agencies may share court and law enforcement generated information contained in secure, governmental registries on the internet for protection order enforcement purposes and for the purposes of oversight and accountability of the courts and criminal justice agencies.
     (3) The administrative office of the courts shall seek, receive, and make use of any funds that may be available from federal or other sources in order to implement this section and shall make every effort to qualify for federal funding.

Sec. 6   RCW 10.97.050 and 2005 c 421 s 9 are each amended to read as follows:
     (1) Conviction records may be disseminated without restriction.
     (2) Nonconviction data may not be disseminated except as provided in this section or RCW 10.97.080, unless the individual identified in the data has provided express written permission for dissemination.
     (3) Any criminal history record information which pertains to an incident that occurred within the last twelve months for which a person is currently being processed by the criminal justice system, including the entire period of correctional supervision extending through final discharge from parole, when applicable, may be disseminated without restriction with the exception of a record being disseminated in response to a request for a conviction record under RCW 43.43.832. A request for a conviction record under RCW 43.43.832 shall not contain information for a person who, within the last twelve months, is currently being processed by the criminal justice system unless it pertains to information relating to a crime against a person as defined in RCW 9.94A.411.
     ((~~(3)~~)) (4) Criminal history record information which includes nonconviction data may be disseminated by a criminal justice agency to another criminal justice agency for any purpose associated with the administration of criminal justice, or in connection with the employment of the subject of the record by a criminal justice or juvenile justice agency. A criminal justice agency may respond to any inquiry from another criminal justice agency without any obligation to ascertain the purpose for which the information is to be used by the agency making the inquiry.
     ((~~(4)~~)) (5) Criminal history record information which includes nonconviction data may be disseminated by a criminal justice agency to implement a statute, ordinance, executive order, or a court rule, decision, or order which expressly refers to records of arrest, charges, or allegations of criminal conduct or other nonconviction data and authorizes or directs that it be available or accessible for a specific purpose.
     ((~~(5)~~)) (6) Criminal history record information which includes nonconviction data may be disseminated to individuals and agencies pursuant to a contract with a criminal justice agency to provide services related to the administration of criminal justice. Such contract must specifically authorize access to criminal history record information, but need not specifically state that access to nonconviction data is included. The agreement must limit the use of the criminal history record information to stated purposes and insure the confidentiality and security of the information consistent with state law and any applicable federal statutes and regulations.
     ((~~(6)~~)) (7) Criminal history record information which includes nonconviction data may be disseminated to individuals and agencies for the express purpose of research, evaluative, or statistical activities pursuant to an agreement with a criminal justice agency. Such agreement must authorize the access to nonconviction data, limit the use of that information which identifies specific individuals to research, evaluative, or statistical purposes, and contain provisions giving notice to the person or organization to which the records are disseminated that the use of information obtained therefrom and further dissemination of such information are subject to the provisions of this chapter and applicable federal statutes and regulations, which shall be cited with express reference to the penalties provided for a violation thereof.
     ((~~(7)~~)) (8) Every criminal justice agency that maintains and disseminates criminal history record information must maintain information pertaining to every dissemination of criminal history record information except a dissemination to the effect that the agency has no record concerning an individual. Information pertaining to disseminations shall include:
     (a) An indication of to whom (agency or person) criminal history record information was disseminated;
     (b) The date on which the information was disseminated;
     (c) The individual to whom the information relates; and
     (d) A brief description of the information disseminated.
     The information pertaining to dissemination required to be maintained shall be retained for a period of not less than one year.
     ((~~(8)~~)) (9) In addition to the other provisions in this section allowing dissemination of criminal history record information, RCW 4.24.550 governs dissemination of information concerning offenders who commit sex offenses as defined by RCW 9.94A.030. Criminal justice agencies, their employees, and officials shall be immune from civil liability for dissemination on criminal history record information concerning sex offenders as provided in RCW 4.24.550.

NEW SECTION. Sec. 7 If any provision of this act or its application to any person or circumstance is held invalid, the remainder of the act or the application of the provision to other persons or circumstances is not affected.

NEW SECTION. Sec. 8 Sections 1 through 4 of this act constitute a new chapter in Title 10 RCW.

NEW SECTION. Sec. 9 This act may be known and cited as the records privacy act of 2011.