Rules fall short of a Public Records Act for courts

Judges, for all the accountability they demand of others, are gallingly immune from scrutiny themselves.

Their rulings may be public, but how judges conduct themselves off the bench is a matter of some mystery. As recently as 2009, the state Supreme Court reaffirmed – in a case out of Federal Way – that judicial administrative records are exempt from the state Public Records Act.

The Board for Judicial Administration has purportedly set out to change that. Proposed rules, released for comment last week, would establish the first ground rules for public access to the behind-the-scenes operations of courts.

Good objective, but the suggested rules fall short of meeting it in several ways.

Some of the deficiencies are noted in a minority report from Allied Daily Newspapers of Washington, whose executive director, Rowland Thompson, was a member of the work group that helped draft the rules.

Allied points out that the rules make no reference to the state constitution’s broad mandate that “justice in all cases shall be administered openly.”

That guarantee should be the foundation for public disclosure of judicial administrative records. Constitutional guarantees are a lot harder to overcome than laws or agency rules.

Instead, access would be a mere “policy.” And personal privacy? Well, that’s another matter. It is to be afforded all the protections due it by the state constitution, the rules say.

Such second-rate treatment of public disclosure is on display frequently in the proposed rules.

For instance: They require that requests for judicial administrative records be decided using a test that governs access to criminal records – which are not at issue here – and that is generally more restrictive than a standard guided by the state constitution would be.

The rules also cherry-pick from the Public Records Act, incorporating its exemptions to disclosure but ignoring its dictates to respond quickly to requesters, to redact sensitive information rather than withhold documents and to state reasons when access is denied.

In addition to the PRA’s exemptions, the Board for Judicial Administration would add its own exceptions. One must wonder if David Koenig – the gadfly who prompted the review of judicial access by requesting the correspondence of former embattled Federal Way Municipal Court Judge Michael Morgan – would have fared any better under these rules than he did in the absence of them.

The Public Records Act, passed by initiative, was written by citizens for citizens. These court rules are written by judges for judges. How else to explain the embrace of a $30 hourly research fee, long the holy grail of government agencies looking to discourage records requests?

The state Supreme Court, which has the ultimate authority for ensuring access to judicial records, shouldn’t be fooled into thinking that these rules get that job done.