Changes in Washington Practice Report (#12)/ Sealing and redacting court files

February 26, 2014

Washington State LawThis is installment #12 in a continuing series of Changes in Washington Practice Reports.

In this age of aggressive news reporting regarding legal cases, the sealing or redaction of court records can often become a major issue. Recent Washington cases provide further insight into the issues that may be raised and related requirements.

New materials regarding sealing and redacting court files has been included in the 2013 pocket part to Rules Practice by Tegland, volumes 2 to 4B of Washington Practice.

Searches for such materials can take place by direct reference to volumes 2 to 4B, or by reference to Methods of Practice and the related summaries for the General Rules (GR).

Under the General (Court) Rules, GR 15 addresses the “Destruction, Sealing and Redaction of Court Records”.

GR 15(c) states that “In a civil case, the court or any party may request a hearing to seal or redact the court records. In a criminal case or juvenile proceeding, the court, any party, or any interested person may request a hearing to seal or redact the court records…” and

“Reasonable notice …must be given to all parties in the case. In a criminal case, reasonable notice must also be given to the victim…and the person or agency having…(supervision over the affected adult or juvenile.”

As reported by Tegland, several recent cases have touched on the issue of when and why court records might be sealed or redacted.

As noted, “Documents filed…with a motion to seal are not to be open to the public while the court considers the motion….”and “A party may withdraw documents…provided with a motion to seal if the motion is denied….” State V. McEnroe, 174 Wash. 2d 795, 279 P.3d 861 (2012).

Further, the “state constitutional right to the open administration of justice does not grant the public a right of access to…documents…when the court does not read the documents….” Bennett v. Smith (et al), PS, 156 Wash. App. 293, 234 P 3d 236 (Div. 1 2010), review granted, 170 Wash. 2d 1020, 245 P.3d 774 (2011), and affirmed…(2013).

However, the situation must be exceptional to allow restrictions on publishing documents that have become part of the court record. As noted in Hundtofte v. Encarnacion, 169 Wash. App.498, 280 P3d 513 (Div. 1 2012)…review granted …(2013), “the public’s right to the open administration of justice …(can) only be infringed under the most unusual circumstances….”

Once documents have become part of the court record, it is difficult to justify having them sealed. The preferences of the parties are often found to be less essential than the rights of access by the public.

Attorneys should always be cautious in dealing with documents that clients do not want to have released to the public, and explain the legal requirements for sealing.

Attorneys can search for needed resource materials by reviewing the individual volumes of Washington Practice, or by starting with the summaries and search strategies available in Methods of Practice.

For additional information regarding the extracts, summaries and other legal resource materials to be found in Methods of Practice, refer to volumes 1 to 1C of Washington Practice, by Cheryl Mitchell and Ferd Mitchell of Mitchell Law Office.