BILL REQ. #:  S-3790.1 

Read first time 01/17/12.   Referred to Committee on Judiciary.

     AN ACT Relating to facilitating the sealing of certain unlawful detainer and protection order records to protect housing opportunities; adding a new section to chapter 59.18 RCW; creating a new section; and prescribing penalties.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:

NEW SECTION.  Sec. 1   The legislature finds that unfettered public access to civil court records materially diminishes the ability of some rental applicants to obtain rental housing in this state. This often affects individuals who have sought orders of protection against domestic violence, sexual assault, or stalking, who have been unjustly sued for eviction, or who have acquired civil court records that are not predictive of their suitability for residential tenancies. These records are commonly searched and compiled by tenant screening companies and reported to residential landlords who frequently deny housing to applicants about whom the records pertain, often with little or no regard for the circumstances, merits, or dispositions of the civil litigation. Such use of court records is contrary to the public policy of this state. Such use of court records also does not contribute to public oversight of the administration of justice, and tends to undermine the legitimacy of our civil courts by systematically deterring people from appearing in court, even when they have meritorious claims or defenses.

NEW SECTION.  Sec. 2   A new section is added to chapter 59.18 RCW to read as follows:
     (1) In any hearing concerning the proposed redaction or sealing of court records, a person's ability to obtain rental housing in the future constitutes a compelling privacy and safety concern that may be weighed against the public's interest in access to the records where the person for whom the court records are proposed to be redacted or sealed is neither a homeowner nor an incarcerated person.
     (2) In any hearing concerning the proposed redaction or sealing of an unlawful detainer court record, a person's ability to obtain rental housing in the future is presumed to outweigh the public's interest in access to the record if:
     (a) The court entered a final order in the unlawful detainer action, and the person was not found guilty of unlawful detainer or otherwise in unlawful possession of the disputed premises;
     (b) The person occupied the real property as a tenant prior to a foreclosure sale concerning the same premises, and the action was filed less than ninety days after the foreclosure sale;
     (c) Notwithstanding any other findings or orders in the unlawful detainer action, the person prevailed on an affirmative defense, counterclaim, or setoff asserted in the action, such as a claim for breach of an implied warranty of habitability or breach of the covenant of quiet enjoyment; or
     (d) A judgment entered solely for nonpayment of rent was entered but was fully cured, and the tenancy was reinstated pursuant to RCW 59.12.170, 59.12.190, or 59.18.410, or any other law.
     (3) The presumption arising under subsection (2) of this section may be rebutted by evidence establishing that the public's interest in access to the court records outweighs the person's interest in obtaining future rental housing, and that public access to the records will not materially chill tenants with meritorious defenses from appearing and defending in unlawful detainer actions.
     (4) In any hearing concerning the proposed redaction or sealing of a qualified victim protection record, a person's ability to obtain rental housing in the future is presumed to outweigh the public's interest in access to the record. For the purposes of this section:
     (a) "Qualified victim protection records" means:
     (i) Records or information concerning any judicial or administrative proceeding in which the person about whom the records or information pertains sought to obtain an order of protection from domestic violence, sexual assault, stalking, harassment, or other violent crime, including any petition or action for a protection order under chapter 9A.46, 10.14, 10.99, 26.09, 26.26, or 26.50 RCW, or any other law;
     (ii) Records or information concerning any judicial or administrative proceeding in which the person about whom the records or information pertains exercised or attempted to exercise a right or obtain a benefit available specifically or exclusively to victims of violence, such as, but not limited to, the early termination of a rental agreement under RCW 59.18.575;
     (iii) Records or information indicating that the person about whom the records or information pertains asserted that a claim or defense was available to the person in a judicial or administrative proceeding by reason of the person's status as a victim of violence, such as in a proceeding under chapter 49.60 RCW; and
     (iv) Any other records or information indicating that the person about whom the records or information pertains is a victim of domestic violence, sexual assault, or stalking, or is protected by a court order.
     (b) "Qualified victim protection records" does not include records or information tending to indicate that the person about whom the records or information pertains was a perpetrator of sexual assault, harassment, or violent crime.
     (5) The presumption arising under subsection (4) of this section may be rebutted by evidence establishing that the public's interest in access to the court records outweighs the person's interest in obtaining future rental housing, that public access to the records will not materially chill victims of domestic violence, sexual assault, or stalking from seeking orders of protection, and that access to the records will not materially chill victims of domestic violence from leaving abusive partners.
     (6) A person for whose benefit an order to seal or redact court records has been entered under this section, when engaged in an effort to secure possession of residential rental property:
     (a) Has no duty to disclose the action to any prospective landlord or provider of any services in connection with housing on any written or nonwritten application; and
     (b) May not be penalized in any manner, or denied any right or privilege, for making to any prospective landlord or provider of any services in connection with housing a statement denying the existence of the action or denying knowledge of its existence.
     (7)(a) A tenant screening service shall not unreasonably make a tenant screening report that contains information the court has sealed or redacted under this section. Such a report is presumed to be unreasonable if the screening service provided the report based on records the screening service obtained from the court more than thirty days before the date of the report.
     (b) A screening service that violates this section is liable to the prospective tenant in the amount of his or her actual damages and costs of the action together with reasonable attorneys' fees as determined by the court and, in the case of a willful violation, for a monetary penalty in the amount of one thousand dollars. A report is presumed to be willful if the report contains qualified victim protection records.
     (8)(a) A person having notice of an order to seal or redact unlawful detainer case records or qualified victim protection records shall not, either directly or through any agent, disclose the existence of the action, or other information expected to enable discovery of the action, to any tenant screening service or prospective landlord seeking information about the person for whose benefit the order was entered.
     (b) The duty imposed under this subsection cannot be waived by the person for whose benefit the order to seal was entered, and any purported or attempted waiver, whether written or nonwritten, is void and has no effect.
     (c) A person who willfully violates this subsection is liable to the person for whose benefit the order was entered in the amount of such person's actual damages and costs of suit, together with reasonable attorneys' fees as determined by the court, and a monetary penalty of one thousand dollars for each willful violation. A violation of this subsection is considered willful only if the person committing the violation had actual knowledge of the order to seal or redact.
     (9) This section does not limit or impair the right of any party to a civil action from pursuing, or of a court from ordering, the sealing or redaction of court records under any other provision of law.