Background: In 1977 the Legislature passed HB 371 which made juvenile offender records accessible to the public. Under current law, a person may seal their juvenile record if the person meets certain criteria. The criteria for sealing juvenile records since 1977 gradually became more stringent until 1997. Since 2004 the Legislature has enacted provisions that decrease the amount of time a person must wait before being eligible to have a juvenile record sealed and has allowed more serious offenses to be sealed.

Before a juvenile offender record may be sealed, the person must not have any pending diversion or criminal charges, must be relieved of any duty to register as a sex offender, and must pay any restitution ordered in full. The person must have also spent a specified period of time in the community without committing a new offense: five years for a class A felony and two years for other felonies, misdemeanors, and diversions.

In 2011 the Legislature established the Joint Legislative Task Force on Juvenile Record Sealing (Task Force) to:

determine how to cost-effectively restrict public access to juvenile records when an individual meets statutory criteria without requiring a motion in court;
determine whether and how to restrict access to diversion records; and
address other juvenile criminal record access issues that may arise during the work of the Task Force.

The Task Force completed its report in December 2012. The Task Force explored several alternatives and options but did not come to consensus recommendations.

Serious violent offenses are defined in the Sentencing Reform Act to include murder 1 and 2, homicide by abuse, manslaughter 1, assault 1, kidnapping 1, rape 1, assault of a child 1, or an attempt to commit any of those crimes.

Summary of Bill: The official court file of a juvenile offender is confidential, unless the juvenile has been adjudicated of a sex offense, serious violent offense, or one of the following offenses:

arson in the first degree;
criminal solicitation or conspiracy to commit arson in the first degree;
assault of a child in the second degree;
kidnapping in the second degree;
leading organized crime; or
malicious placement of an explosive in the first degree.

Access to a confidential juvenile court file is limited to the court, prosecuting attorney, and the parties and their attorneys. Juvenile justice or care agencies must have access only when an investigation or case involving the juvenile is pursued by the agency or when the agency is responsible for supervising the juvenile. An interested person may petition the court for the release of records for good cause. The court may release the records upon a written finding that anyone present when the motion was heard had an opportunity to address the motion, the court weighed the competing privacy interests of the juvenile and the interests of the person seeking access to the records, the court determined that a compelling reason exists for the inspection and that disclosure is necessary to protect those interests, and the order of the court is no broader than necessary to achieve its purpose. Notwithstanding the confidentiality provisions, agencies may access juvenile records for research and data-gathering purposes.

Confidential juvenile offense records maintained by any court, law enforcement agency, or state agency may not be published, distributed, or sold. Nothing in this section prevents the use of a juvenile offender's prior adjudication in later juvenile offender or adult criminal proceedings.

The provisions of the bill apply prospectively and retroactively. Except for juvenile court files that have been sealed under existing law, any official juvenile court file containing an adjudication for a sex offense, a serious violent offense, or one of the other exempt offenses listed above with an adjudication date prior to the effective date of this section, must be public.

The bill takes effect on the date that the Administrative Office of the Courts (AOC) fully implements a court data system that allows juvenile records to be categorized as confidential. The AOC must provide notice of the effective date of this act to the chief clerk of the House of Representatives, the Secretary of the Senate, the Office of the Code Reviser, and others as deemed appropriate by the AOC.

Staff Summary of Public Testimony:

Testimony From 2013 Regular Session.

PRO: This bill only impacts the confidentiality of records. Juvenile proceedings themselves are still open to the public and therefore subject to public accountability. Open records for juveniles have implications for housing, employment, and the future success of our youth. The House accepted five amendments to address concerns of housing providers and, as a result, the bill passed out of the House unanimously. This bill strikes a good balance between public safety and allowing youth to move on with their lives. Provisions in the bill that preserve open records for data-gathering purposes further ensures accountability. Specific case names are not needed to ensure that the justice system is working appropriately. Approximately 27,500 young people have their records sold to background check companies every year. A childhood mistake should not turn into a life sentence. This issue also has a disproportionate impact on youth of color. We should want youth to grow up to obtain employment and housing and become contributing taxpayers. We want to remove the sense of helplessness that youth feel when they cannot move forward because of their record. Our current system is not working to rehabilitate kids or get them back on the right track. This runs contrary to the message of opportunity and success.

Principals differentiating differences between adults and youth date back 100 years, even before all of the recent research regarding brain development. Few people have the sophistication to hire an attorney or navigate the court system in order to get a record sealed. Even then, sealing a record does not ensure that the information has not already been disseminated into the public forum. How does the state expect restitution to be paid when the juvenile has no ability to become employed? It is impossible for a juvenile to rehabilitate when we let their record follow them into adulthood. The Legislature determined that certain classes of cases are appropriately exempt from public dissemination, including records of dependency cases, status offenses, and mental health cases. The Legislature can therefore determine that juvenile records are appropriate for confidentiality as well. The court specifically stated that the Ishikawa factors do not apply to juvenile cases.

CON: Our state is distinguished by the very strong provision in our constitution which states that justice must be administered openly. It is not sufficient to require the public to go to the courthouse to observe these processes. We agree that discrimination against youth on the basis of a juvenile record is inappropriate. The right thing to do is to amend the law regarding discrimination and prevent discrimination on the basis of that juvenile record. That is a better solution than eliminating all public access to juvenile records. This legislation asks the citizens of this state to take a very large leap of faith that we trust the judicial system to always do the right thing. Records are not sold. Companies that acquire these records enter into contracts with the courts in order to be able to gather records in a systematic fashion without interfering with the court's business. The payments are to reimburse the state for the cost of accessing the system. Landlords use this information to protect the health, safety, and welfare of their tenants. A best practice for landlords is to gather all of the information in the public realm to assist in decision making. The wholesale sealing of an entire class of records is not appropriate. Mechanisms already exist in the law for individual sealing. For the last 35 years, these records have been open to public. Sealing requires that the court balance competing interests utilizing the Ishikawa factors.

OTHER: Given the current structural changes going on with the judicial information system, it would be better if the timing of these provisions coincided with when the new case management system becomes available. We have major concerns as to the ability to implement this law in the current system. This bill represents a complete departure from the platform the current system was built on. This would require 4300 hours and two years of work at a cost of over $500,000. The good news is that we are entering into a contract with a company to build a new system. The system will take two to five years to get off the ground. It would make sense to include these provisions in the new system.

Testimony From 2014 Regular Session.

PRO: This bill provides juveniles with the ability to move on and lead productive lives, get an education, and obtain a job. Washington's system is contrary to the practice in 42 other states that seal or vacate juvenile records. In many other states, records are confidential for all but capital crimes. The court or law enforcement is directed to respond that no record exists. Additionally many mental health records are closed. When a juvenile commits a crime, the question is whether they should have to carry that crime for the rest of their lives. This is a balance of open government and the ability of juveniles to move forward. The long-term ramifications of keeping records open is very serious. Juveniles by their very nature enter the system when they are the most capable of change and rehabilitation. The juvenile court system was created to hold them accountable while teaching them socially acceptable behavior. The goal is to reduce recidivism. This bill is consistent with that philosophy.

The current mechanism in place to seal records is broken. Volunteer attorneys cannot meet the need. Statistics show that 94 percent of juvenile cases are eligible to be sealed, yet only 6 percent are actually sealed by the court. The ones that do get sealed are overwhelmingly white. Commercial data mining companies hold the records and do not purge them when records are sealed. There is no accountability for those companies that distribute records to the public. The records become a barrier for housing, employment, and educational opportunities.

Law enforcement solves crime based on evidence, not juvenile records. Ninety-five percent of offenses are nonviolent. If this is a true public safety concern, landlords should stop renting to individuals from other states because juvenile records are not available from other states. Landlords are not trained to read these records and deny housing to anyone with a criminal indicator including those who have been acquitted. Federally regulated agencies do not have an interest in these records and we do not think landlords should either.

Designating juvenile records as confidential is not unconstitutional. Washington had closed records for many years until juvenile justice reform was passed. This bill still allows access to aggregated information for research. Proceedings are also open for attendance to the public and the press. If that is not enough, a person of interest can petition the court for access for good cause.

CON: Landlords have a responsibility to protect tenants from guns, assaults, and gang activity. Legislation in the last few years has increased those duties. Sealing juvenile records works at cross purposes to this goal by not allowing landlords to adequately screen tenants. This is a slippery slope and we see other inroads in the Legislature attempting to limit the availability of non-conviction records and domestic violence records. Denial of an entire category of records is unconstitutional. We feel that a case-by-case determination would be the best solution. In balancing competing interests, the Legislature also needs to consider the need for public accountability. The press serves the interest of public accountability and making sure the juvenile justice system is doing what it is supposed to do. We need to explore alternatives before taking the radical step of designating files as confidential. This step puts you in conflict with a number of other statutes that require background checks for certain types of positions. Sealing is the best way to do this. It puts the decision in a judge's hands to determine on a case-by-case basis.

Persons Testifying:

Persons Testifying From 2013 Regular Session.

PRO: Representative Kagi, prime sponsor; Priya Rai, Jane Schroeder, University of WA Law Children and Youth Legislative Advocacy Clinic; Adrian Diaz, Seattle Police; Starcia Ague, University of WA Dept. of Psychiatry and Behavioral Sciences; Laura Inveen, Superior Court Judges Assn.; Dominique Davis, 180 Program; Ed Prince, WA State Commission on African American Affairs; Sara Franklin, Daniel Bryner, Sue Steinman, citizens.

CON: Toby Nixon, WA Coalition for Open Government; Bill Will, WA Newspaper Publishers Assn.; Kyle Woodring, Rental Housing Assn. of WA; Chester Baldwin, WA Apartment Assn.; Rowland Thompson, Allied Daily Newspapers of WA.

OTHER: Mellani McAleenan, Board for Judicial Administration.

Persons Testifying From 2014 Regular Session.

PRO: Representative Kagi, prime sponsor; Mary Yu, Superior Court Judges Assn.; Kim Ambrose, Professor, University of WA Law School; Casey Trupin, attorney, Columbia Legal Services; Sara Franklin, Commission on African American Affairs; Shawn Ledford, Chief of Police, Shoreline Police Dept.; Paul Benz, Faith Action Network; Mary Lou Dickerson, Children's Campaign Fund; Rev. Terri Stewart, Youth Chaplaincy Coalition; Rosa Franklin, former Senator, WA State Legislature; Seth Dawson, Youthcare; Jane Schroeder, University of WA School of Law, Child and Youth Advocacy Clinic; Chris Kaasa, American Civil Liberties Union of WA.

CON: John Woodring, Residential Housing Assn.; Bill Will, WA Newspaper Publishers Assn.; Rowland Thompson, Allied Daily Newspapers of WA; Angie Bonner, citizen.