Open courts, closed files: Hitting roadblocks in quest for public records
SEAN ROBINSON
It’s right there in the Washington state Constitution, article I, section 10:
“Justice in all cases shall be administered openly, and without unnecessary delay.”
The words apply to courts and court case records. Both are supposed to be public: no secret trials, no secret files.
Several small courts in the South Sound, including half of the courthouses in Pierce County, fell short of that state standard in a recent survey of 22 district and municipal courts conducted by The News Tribune.
In municipal courts from Sumner and Fircrest to Lakewood and Yelm, among other sites, court clerks denied, hindered or delayed requests to view case records. They gave reasons that contradicted legal requirements set down by the Washington State Supreme Court.
Some courts handled requests properly, providing immediate access to files. Smaller municipal courts, typically relying on one or two staff members with limited training, were most likely to block or hinder access – but larger, higher-volume courts also fell short in some instances.
Some clerks said the cases were still “open” or “ongoing” and thus barred from public view. Some said only attorneys and defendants could view case records. Some said case files were confidential. Clerks in two courts – Sumner and Fircrest – insisted the only way to view case files was to pay for copies.
Those answers were wrong. They contradict state rules that govern courts large and small. High-ranking legal leaders, including Barbara Madsen, chief justice of the state Supreme Court, said The News Tribune’s findings paint a picture that calls for correction and training.
“That’s obviously troubling,” Madsen said. “It’s troubling to think that members of the public would not be able to access records which are obviously accessible, so I’m disappointed. We will be looking further into the situation.”
RECORDS BELONG TO PUBLIC
Court records cover big stuff and small stuff, from Supreme Court rulings and homicide charges to small claims and parking tickets. The records – rare or common, momentous or trivial – belong to the public.
“The public shall have access to all court records except as restricted by federal law, state law, court rule, court order, or case law.”
- General Rule 31(d)(1), Washington state courts
In the real world, that means you have the right to walk into a courthouse in Washington – any courthouse – and satisfy your curiosity. You’re entitled to read case files tied to the crazy driver up the block who got popped for three DUIs in three cities in eight months.
You don’t have to say why you want to see the files. That doesn’t matter. Maybe the guy ran over your dog.
According to the court rules, you don’t need a reason. You don’t have to be an attorney. You don’t have to be a party to the case. If it’s part of the official court file, and a judge hasn’t sealed it, you get to see it.
What’s more, you get to see it for free.
“A fee may not be charged to view records at the courthouse.”
- General Rule 31(d)(3), Washington state courts
REQUESTS DENIED
“When you walk up to the counter you should be able to get access to a court file. There’s no question about that,” said Judge Gregory Tripp, a district court judge in Spokane County and the president of the Washington District and Municipal Court Judges Association.
Clerks at Sumner Municipal Court showed no knowledge of that principle during an April 30 visit by The News Tribune. They denied an over-the-counter request to view a case file tied to a drunken-driving charge.
The clerks said the file was confidential and only the defendant or his attorney could view it. They provided a records request form, and said there was no option to view case records without paying for copies.
The clerks didn’t know they were talking to a newspaper. The News Tribune’s survey, conducted in the first week of May, aimed at testing responses to ordinary citizens, not pushy journalists.
The reporter gave a name, home address and home phone number on a form if clerks asked for it (all of them did).
The experiment created a different dynamic: journalists routinely seek public records. They know the rules of access and they challenge denials. To preserve the experiment, The News Tribune didn’t challenge clerks who denied access to records, apart from asking why.
After the over-the-counter denial in Sumner, The News Tribune spoke to court administrator Cathy Pashon, revealed the experiment and asked for an explanation of the clerks’ responses.
"I do apologize," Pashon said. "Yes, someone can come to the counter and view a file. We’ve got two fairly new clerks that didn’t know that."
The pattern repeated itself elsewhere. While eight South Sound courts provided immediate access to full case files, 14 did not.
Denials came in flavors:
• Three courts – Auburn Municipal, Bonney Lake Municipal and Thurston County District – required appointments at a later date to view court files. Appointments hinged on the court administrator’s availability.
• Four municipal courts – Ruston, Roy, Steilacoom and Orting – provided files immediately, but removed significant sections that by law should be public, in some cases leaving only a page or two.
• Three municipal courts – Eatonville, Milton and Wilkeson – responded to requests by mail after face-to-face visits, sending letters that offered the opportunity to view files at a later date. One court (Wilkeson) sent two pages of records).
The rest were flat rejections.
At Yelm Municipal Court, clerks denied access to a court file. They said it was a “pending case,” and therefore the charging statement and the underlying police report were confidential. They referred the records request to the city prosecutor.
The case was a third-degree theft charge, filed March 15 against a 30-year-old Tacoma man who entered a not-guilty plea.
Tim Ford, open-government ombudsman for the State Attorney General’s Office, said such denials run counter to the rules governing access to court files. When a prosecutor files a charge, the courtroom door opens.
“Once (police) have concluded their investigation and provided a charging recommendation to the prosecutor and the prosecutor charges in court, then the investigative file is no longer exempt in general,” he said. “Case files are presumed to be open to the public unless they’re sealed by a judge.”
Following the denial in Yelm, court administrator Maryam Olson said the court has revised its access policy in light of The News Tribune’s concerns.
“Changes have been made in this office regarding procedures,” Olson wrote in an email. “The court files will be available to view at the front counter whether in pre- or post-disposition status with the exception of treatment reports, financial affidavits, and no contact orders. These will be removed prior to viewing. ...
“I have advised court staff of these new procedures and they are in effect immediately.”
Olson added that police reports tied to a case sometimes remain in the prosecutor’s files. Unless they are entered as evidence, they must be requested separately.
SOME PASS TEST
The News Tribune’s survey focused on district and municipal courts, where the people of Washington conduct the bulk of their legal business. Most people don’t get charged with felonies. Most people don’t embroil themselves in big lawsuits. Such cases (apart from small claims) go to superior courts.
The common stuff – traffic violations, misdemeanors and small claims – flows to district and municipal courts, known formally as courts of limited jurisdiction. They are small in size and vast in number. Seven of every eight cases filed in Washington run through the little courts, according to state statistics.
Pierce County, like every county in the state, has one Superior Court. It handled 35,029 cases in 2011. The county has 17 courts of limited jurisdiction. Collectively, those little courts handled 10 times as many cases – 348,027 in 2011.
“The most common experience people will have is primarily through the traffic court, and second, jury duty,” said Chuck Ramey, administrator of Pierce County District Court. “The average citizen out there is going to be exposed to the court in that way.”
Ramey’s court is by far the largest in Pierce County in terms of volume. It handled 175,677 cases in 2011. Tacoma Municipal Court was a distant second, with 97,539 cases.
Both courts passed The News Tribune’s informal access test. Requests to view case records were granted immediately. Clerks brought case files for viewing and stood by to make sure no documents were removed.
“We try to focus on public service and responsiveness to people,” Ramey said. “The law across the country is pretty clear – that with certain exceptions, it’s a public record, man – it flat-out is.”
The News Tribune’s survey sought files tied to criminal misdemeanors – typically drunken-driving charges, a common case category in district and municipal courts. The cases were chosen at random, based on reviews of recent court dockets.
Among the 22 courts surveyed, Pierce County District and Tacoma Municipal complied with requests on the spot. Municipal court clerks in Federal Way, Olympia, Gig Harbor, Buckley and Fife also allowed immediate viewing of the records. At Puyallup Municipal Court, administrator Tina Marusich delivered the file personally.
The story was different at Fircrest Municipal Court. During a May 1 visit, faced with a request to view a court file, clerks refused. Asked why, they said the case was “ongoing.”
The case, researched in advance by The News Tribune, was a fourth-degree assault charge with a tacked-on count of malicious mischief, filed in mid-January, according to the docket. The defendant was a 29-year-old man, a resident of the town. He’d already appeared in court twice. He’d entered a not-guilty plea on Jan. 25, according to the docket.
Clerks at the counter in Fircrest said the charging statement would not become public until the defendant entered a plea – but he’d already entered a plea.
They provided a public-records request form and asked for a list of all documents The News Tribune hoped to see – in a file that couldn’t be examined.
Clerks said paying for copies was mandatory. They said the request would be forwarded to the town prosecutor, who would respond by mail within five days.
Judge Tripp, the Spokane jurist, said the status of a case – open, closed or ongoing – has no bearing on the public’s right of access.
“I don’t think that makes a difference,” he said. “Under the rules, if it’s a court file, it’s a court file.”
Fircrest officials mailed a response to The News Tribune’s initial request on May 7. The letter said the town prosecutor would review the inquiry and respond by May 24 – more than two weeks away.
At that point, The News Tribune called Fircrest court administrator Beverly Olsen and revealed the newspaper’s involvement in the request. Olsen asked The News Tribune to send another records request in writing, and said there would be no charge for viewing.
“If in fact we are not following all the disclosure policies, we certainly will,” she said. “No doubt about it. We don’t intend to withhold information. We’re not that type of court.”
Two days after that phone conversation, Fircrest officials sent another letter saying the case file was available for viewing.
INFORMATION WITHHELD
A handful of municipal courts – Ruston, Roy, Steilacoom and Orting – fell into an in-between category.
Clerks provided prompt access to court files, but withheld large portions of the records, citing confidentiality. Some said the records included birth dates and home addresses of defendants, which could not be disclosed. Clerks in other courts gave similar answers.
They were mistaken. Certain details in court records, such as Social Security numbers and records of medical treatment, are indeed exempt, according to court rules. Addresses and birth dates of charged defendants are not.
At Gig Harbor Municipal Court, a clerk provided immediate access to a court file – another drunken-driving charge – and handled the confidential portion in a simple way. Records of the defendant’s medical treatment (exempt under court rules) were covered with a sheet of paper. The rest of the file was open.
Pierce County Superior Court – one level up in the court system – illustrates disclosure on a larger scale. Any citizen can walk into the court clerk’s office in downtown Tacoma, sit down at a computer kiosk and read a full court file, no questions asked.
The little courts, especially the smallest of them, lack such resources. Often, they’re one-or-two-person operations.
“It’s just me and the clerk here,” said Maryam Olson, the Yelm administrator.
At the tiny municipal court in Wilkeson, which handled 343 cases in 2011, court administrator Shelly Morrow is available on Thursdays – that’s it. When asked to view a court file tied to a drunken-driving charge, Morrow said she would review the case and mail the documents. Two pages arrived a day later, with the defendant’s birth date and address redacted.
At Orting Municipal Court, clerks provided a citation that listed the charge (drunken driving) but nothing else – no records that described the underlying circumstances, no pleadings. They said it was a pending case.
The charge, filed in December 2011, was almost five months old. The defendant had entered a plea of not guilty and agreed to various conditions. Clerks said the underlying police report was held by the police department and could not be viewed unless the local judge released it.
The News Tribune subsequently spoke to Orting Court Administrator Kaaren Woods, who said police reports tied to charges don’t always appear in court files. She said referring a request to the judge was appropriate.
“I don’t believe that we have a dispute that we didn’t provide you access to the documents or the file,” she said.
At Lakewood Municipal Court, a clerk at the counter said he’d never heard anyone ask to view a court file. He did not allow access, but he provided a records request form and said the court administrator would have to handle it.
POLICY REVISED
The administrator, Deana Wright, later spoke to The News Tribune and said she’d revised the court’s access policy after consulting with legal advisers.
“We realize that if somebody does want to view that, we are to provide it,” she said. “It’ll be addressed. We have a weekly staff meeting where we will be addressing it. Thank you for bringing this to our attention.”
Small courts aren’t accustomed to attention. People don’t walk in asking for records every day. When they do, they sometimes run into brick walls.
“You’re a little bit like the guy who walks into a strange tavern and every head comes up,” said Rowland Thompson, executive director of Allied Daily Newspapers of Washington. “There isn’t a year that goes by that I don’t hear about somebody being denied district court records.”
King County Superior Court Judge William L. Downing said access issues in the small courts sometimes stem from misunderstandings of court rules, as well as efforts to save space and paper.
“One small oddity when it comes to the lower courts, that’s just sort of historic: for the convenience of a lot of people, they oftentimes allow things to be retained by the court that aren’t yet utilized in court, such as the police reports,” he said. “They’re just sort of kept in that old file folder for convenience’s sake.”
Downing (along with Chief Justice Madsen and David Zeeck, The News Tribune’s publisher) serves on the state’s Bench-Bar Press Committee – a group of judges, lawyers and journalists that focuses on legal issues and courtroom access. Downing also chairs the committee’s “Fire Brigade,” which tries to resolve access disputes.
Clerks in the lower courts tend to be loyal to bosses – the judges and prosecutors they work with most of the time, Downing said. If they’re uncertain about access rules, they err on the side of caution.
“It’s a human factor,” he said. “It’s not that they’re enemies of public access. It’s a tendency to be overprotective, and the absence of a clear directive. They may tend to sandbag or stonewall and not be forthcoming because they want to be sure of themselves.
“Their default setting will be to make things a little more difficult for someone trying to exercise their right of public access. Absent a specific order to the contrary, everything in the court file is presumptively accessible for public inspection and copying, but you have to communicate that to them.”
Maryam Olson, the Yelm court administrator, said the rules of access can be confusing.
“It’s always been kind of a murky point,” she said. “I think that’s the issue. I don’t think it’s holding back the information. There hasn’t been a general training. It’s just kind of been this gray area. We don’t want to hold back anything that’s public, but we also want to protect what’s not. We definitely want to comply – we just want to figure out what we can and can’t do.”
State Court Administrator Jeff Hall said The News Tribune’s findings reveal a need for statewide training in the lower courts.
“What this tells me is we need to do some work to understand what is going on, not just in the courts you worked with but statewide,” he said. “See what the issues and patterns of issues are and do some training around this. I’m not necessarily thrilled that you had to go through this process to find this out. These are the kinds of things we want to know, so we can work to address them. It’s good for us to know that we have some work to do here.”
Madsen, the chief justice, said remedies could begin with a fresh look at court rules governing access.
“That’s where I’d like to start, just to see if there’s anything we need to do to make sure the rules are not in conflict,” she said. “That’s where I’d like to start and where I will start, so we can get to the bottom of this.”
sean.robinson@thenewstribune.com
253-597-8486
