NEWS MEDIA UPDATE · WASHINGTON · Secret Courts · March 15, 2006
New rule to make sealing court cases more difficult
March 15, 2006 · The Washington Supreme Court approved rules that will make it harder for judges to seal files in state court cases. Under the revisions, judges should seal records only if “compelling privacy or safety concerns” outweigh the public interest in the court record.
The change, effective July 1, came on the heels of a Seattle Times series that revealed that at least 420 civil cases have been improperly sealed in Washington’s King County Superior Court since 1990 in lawsuits about medical malpractice, personal injury, domestic violence, child molestation and other topics. Although the high court approved the change only days after the series began, the revision has been in the works since 2003.
General Rule 15 makes it clear that a party’s desire to keep records private is not a good enough reason for secrecy and that in lieu of blocking access to entire files, judges should try to remove sensitive information. The new rule also requires judges to explain in writing their reasons for sealing a case.
The current rule already demands “compelling circumstances” before files should be sealed, a threshold that was ignored by at least some of the state’s judges. According to the Times series, “Your Courts. Their Secrets,” nine of every 10 sealed cases the newspaper reviewed were shrouded for reasons that did not meet the demanding legal standard.
“One fairly basic point that gets lost is that the need for compelling circumstances in order to seal a file has been part of this rule since about 1990,” said Times attorney Marshall Nelson. “That part is not new. The Times investigation revealed that an awful lot of the files they were talking about had not been sealed under that standard.”
Judges and commissioners who improperly sealed cases did not explain why secrecy was needed, follow the appropriate legal standard or consider the public interest in open courts, the paper reported.
The new court rule puts into writing steps laid out by judges in recent court decisions, including the landmark 2004 Dreiling v. Jain, in which Supreme Court Justice Tom Chambers called open courts of “utmost public importance.”
“Justice must be conducted openly to foster the public’s understanding and trust in our judicial system and to give judges the check of public scrutiny,” Chambers wrote.
Times Executive Editor Mike Fancher said the paper’s pursuit of sealed records in that case helped change the conditions for closing files in civil cases. Although Fancher called Washington’s history of openness good, he said it is up to the media to hold officials to the law.
“If the newspapers aren’t vigilant, it isn’t going to happen,” Fancher said.
In addition to providing judges with guidance on when to seal a case, the revision also clarifies the requirements for opening sealed records. Rather than showing compelling circumstances to unseal, a person has to show only that the reasons for sealing no longer exist.
The revision probably will not change the status of the improperly sealed cases identified by the Times, Nelson said. Though it is “a daunting task,” the paper will pursue opening all of those cases individually, Fancher said. The Times filed motions last week to unseal 18 cases.
In response to the Times investigation, the court’s leadership last year offered a plan to facilitate opening many of the sealed records, Fancher said. However, judges voted 21-9 to require the Times to file a motion in each case.
Fancher said he expects the rule revision to change judges’ sensitivity to the public interest in open records. What happened in Washington probably goes on in other states as well, he said.
“The judges got into a habit of essentially acquiescing to the will of prosecutors and defense attorneys [to seal cases],” Fancher said. “As long as they wanted something closed, the judges basically were failing to live up to the public expectations” of openness.
That should change now, Fancher said. Nevertheless, he said the newspaper respects that sealing files or portions of files is sometimes the right thing.
“We’re not out there on a witch hunt or fishing expedition to turn everything into a story,” he said. “But allegations of misconduct by government officials, unsafe condition in medicine or the workplace . . . those are the kinds of issues that need to be brought to light.”