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Even administrative judicial records are exempt from disclosure

In March, I did a public records request with the city of Montesano to learn about city employees who have been put on administrative leave.

The request led me to the city’s municipal court and Judge Chris Bates, who promptly denied my public records request.

In a polite and cordial email, Judge Bates informed me that the judiciary is not a state or local agency, citing a 2009 state Supreme Court decision under City of Federal Way vs. David Koenig.

After I protested the decision, Judge Bates and I had a very cordial conversation, where I learned one of his employees had been placed on paid administrative leave and was back on duty after a fair hearing. Bates said that no laws were broken and personnel policies were properly followed.

What it all left behind for me, though, was the realization that there’s a gigantic hole in the Public Records Act.

The judiciary has always been protected from the Public Records Act. For instance, I am not allowed to view the emails sent between the three Superior Court judges nor their staff.

In Koenig’s case, he tried to seek documents related to the resignation of a former Federal Way municipal court judge and other assorted correspondence.

And until that 2009 ruling, there was a good bet that a resident could request disciplinary information on employees within the judiciary division — to see who’s been suspended or why. The 6-3 court decision broadened the existing case law and shut that door. However, there could be some gray area when another city branch is involved. For instance, in Montesano’s case, the city administrator spent $4,452 on a special investigator to sort through what happened. I know this because the billings were released to me, even though the investigative report was not.

Eric Stahl, of Davis Wright Tremaine LLP in Seattle, explained the ramifications of the Federal Way case, noting the “decision was based on a broad reading of Nast v. Michels, a 1986 opinion that held that the Public Records Act did not apply to case files. In Nast, the Supreme Court reasoned that the Public Records Act did not specifically refer to state courts or court records, and that the public already had access to case files under a well-developed body of case law. Since Nast, state court rules and case law have evolved in a manner that generally assures public access to case records absent compelling circumstances.

“Koenig raises an issue that Nast did not reach: whether the Public Records Act applies to records held by the judicial branch that are not related to cases,” Stahl wrote after the ruling on his law firm’s website. “Plaintiff David Koenig requested all records related to the resignation of a municipal court judge, including all correspondence with another judge of the same court. The city responsible for the court refused to produce the correspondence. Koenig also sought documents related to jury duty exemptions and the appointment of temporary judges. The city provided some documents but withheld those that it classified as ‘court documents.’”

Deputy Attorney General Tim Ford, the open government ombudsman for the state, notes that the courts understand the hole they created back in 2009 and have taken some steps to correct it by suggesting a new general rule of the court system allowing access to administrative records.

Proposed “General Rule 31A” would set forth “standards and procedures for providing public access to the Washington State judiciary’s administrative records,” according to the Board for Judicial Administration, which is responsible for reviewing the rules that courts live by.

“The suggested rule fills a gap in the existing laws,” the board states. “Currently, there is no law that broadly addresses public access to the judiciary’s administrative records. The Washington State Public Records Act does not apply to judicial records.”

Although the rule was suggested back in February of 2011 by a Public Records Work Group of the court system and put out for public comment to be received by November of 2011, it has yet to be adopted.

The issue of public records is a complicated one and something I deal with every day. I invite you to join me in learning more about what the Public Records Act is all about, as well as the Open Public Meetings Act.

The Washington Coalition for Open Government is hosting a free workshop from 1 p.m. to 4 p.m. on Saturday, May 11 at the Aberdeen Timberland Library, 121 E. Market Street in Aberdeen. Funding for this workshop is provided by the John S. and James L. Knight Foundation through a grant from the National Freedom of Information Coalition.

Steven Friederich is editor of The Vidette. Contact him at editor@thevidette.com

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