Court considers rules on availability of court administrative records

The state Supreme Court, prodded into action by a 2009 case involving a reprimanded Federal Way judge, is weighing a rule to underscore that court administrative records are public.

The high court took comments on the draft rule last week. The nine justices expect to revisit the proposal next month.

In October 2009, the court reaffirmed that judicial records are not subject to the Public Records Act, rejecting a citizen’s request for the correspondence of Federal Way Municipal Court Judge Michael Morgan, who had been disciplined for judicial misconduct over his treatment of court employees.

The Federal Way dispute centered on administrative court records – a category separate from actual case files. Under court rules and the state constitution, case files are open for public viewing in most circumstances. Administrative records, such as internal matters related to court employees, fall into a different and uncertain category.

The proposed rule – meant to codify the practice of many courts – would apply to records such as emails and budget documents, but not a judge’s work notes for cases.

The draft policy has support of Allied Daily Newspapers as well as judges, although advocates differ on many details. At the same time, the American Civil Liberties Union has raised concerns about privacy, and cities have objected to potential costs.

Toby Nixon, president of the Washington Coalition for Open Government, told the court it should go further than a rule – by asking state lawmakers to place the court system under the Public Records Act.

“Putting the court under the PRA is not off the table,” Chief Justice Barbara Madsen wrote in a response to a reporter’s questions. “Such an approach would, however, require different exemptions and new definitions.”

In last week’s testimony, there was consensus that most administrative records should be disclosed. But costs remained a big question for some.

Thurston County Superior Court Judge Paula Casey warned that the rule could add costs for courts already struggling financially. Casey said the proposed appeals process is “confusing and, apparently, unprecedented” in requiring a presiding judge or designee to do an internal review of records disputes. It could require local judges to step aside and hire visiting judges to avoid an appearance of impropriety.

The Association of Washington Cities, citing what it believes are abuses of the Public Records Act, asked the Supreme Court not to pass the proposed rule. In a letter, AWC and the Washington State Association of Municipal Attorneys said a new rule would create a parallel public-records system for courts that might be confusing and costly to local governments.

Michael Killeen, a media lawyer who spoke for Allied Daily Newspapers of Washington, said the new rule “will create some costs. But it is something they need to be doing” in the courts.

Killeen said the draft rule “seems to have broad, broad support. … I think we’ve crossed the threshold, ‘Are we going to do this?’ ’’ He also said there needs to be attorney fees for the prevailing party if lawsuits are brought over a court’s failure to release records.

Court of Appeals Judge Marlin Appelwick chaired the Supreme Court’s task force on the records issue. He acknowledged that the proposed rule – known as General Rule 31 A – won’t bite courts bent on abusing the disclosure requirements. Appelwick’s task force stopped short of spelling out sanctions – such as the fines of up to $100 a day called for by the Public Records Act – if courts fail to hand over records.

Nixon, the open-records advocate, had other criticisms. He objected to a proposal in the draft rule to let courts charge a $30 per-hour search fee, which he feared will encourage courts to move slowly.

Appelwick said the charge would apply only after the first hour spent researching or answering a records request.

David Koenig, an activist whose pursuit of the Federal Way records led to the 2009 Supreme Court ruling, urged the court last week to put administrative records under the state Public Records Act.

Justice Debra Stephens and then-Chief Justice Gerry Alexander, who retired in December, both dissented in the 2009 decision, taking Koenig’s side for disclosure. Stephens wrote in part: “In the end, I believe we do a disservice to interpret the PRA, a broad mandate for open government, to exempt entirely the judicial branch of government.”

Soon after that, Justice Alexander set up the task force to draft a rule clarifying that records should be disclosed.

Madsen said the justices will meet privately March 7 to discuss the draft policy.

“We believe that some of the comments and testimony require additional attention. In particular the court intends to have further discussion about the proposed mechanism for appeal and imposition of sanctions,” Madsen said in an email.

Brad Shannon: 360-753-1688

bshannon@theolympian.com

www.theolympian.com/politicsblog