Supreme Court considering cutting records access

EVERETT — An advisory committee to the state Supreme Court is considering proposals that could curtail public access to some court records.

One proposal would prevent permanent online access to court records in cases when a suspect makes a preliminary appearance but no criminal charges are ever filed.

Another would allow defendants who’ve been acquitted or whose cases have been dismissed to seek a hearing before a judge to get the actual paper court records sealed. There is nothing being proposed that would automatically seal documents. A person would still need to file a motion with the court and prove that their case is different from others.

Snohomish County Superior Court Judge Thomas Wynne heads the advisory panel of judges and court officials who are considering the changes.

Much of the committee’s work is to make sure court rules follow state law which is constantly changing because of legal challenges.

“We have been looking at the evolving case law over the last six or seven years,” Wynne said. “We are still in the information-gathering stage.”

The panel will forward its recommendations to a state Supreme Court rules committee for review before it is presented to the full court.

There will be an opportunity for public comment to the Washington State Supreme Court. Wynne’s committee met in Everett on April 12. The panel listened to testimony offered by attorneys and others who specialize in public access law.

Bill Will, executive director of the Washington Newspaper Publishers Association, said the committee faces a challenge because there have been conflicting court decisions.

His organization opposes the idea of limiting online access to records involving preliminary court hearings.

Currently when someone is arrested and probable cause is established in district court there is a notation on a statewide court website under his or her name, even if no charge is filed later. Under the current proposal, that notation would go away online but the record and any materials in the case file still could be found at the courthouse.

“There is no such thing as security through obscurity,” Will said. “If a record is out there, it’s out there.”

“Something is either open or its not open,” he added. “It’s absolute. You can’t partially hide some things.”

He’s also opposed to any changes that make dismissals easier to seal. He argues that a dismissal doesn’t necessarily mean someone didn’t commit a crime. For instance, he said, a witness could recant a story. Dismissals often occur when pre-trial rulings result in evidence being suppressed. Sometimes the evidence is tossed because it was gathered by investigators who have ignored Constitutional protections or engaged in other misconduct.

“Justice and secrecy are utterly incompatible in my opinion,” Will said.

He worries that a precedent of limiting access could reduce the ability to make sure the justice system is fair.

“The concern from the open government and the news gathering standpoint is some of the privacy proponents have gone to the extreme that there needs to be an invisible docket,” he said. “There has to be a way for the public and watchdogs to monitor the process.”

The American Civil Liberties Union supports the intent of both proposals, but has concerns with some of the details, ACLU attorney Vanessa Hernandez said. She said the proposals could help people who are now denied housing or employment because their names appear in an online statewide court index, even when they were never charged or convicted. The site is set up for easy Web searches and is often used by employers and landlords.

She used the example of one of her clients, a young man who was accused of theft and received a deferred prosecution. His case eventually was dismissed after he paid a nominal fine. The man tried to enlist in the military, but his name appeared in court records. The theft allegation showed up under two case numbers — one for his preliminary court appearance; the other for the formal charge.

Military officials told him to try to get the cases expunged since he wasn’t convicted.

“It has held up the processing of his enlistment for months, trying to navigate the perception that he has a conviction, that there are two charges and two convictions when in reality there was one case that was dismissed,” Hernandez said.

The ACLU wants to make sure any changes allowing the sealing of a dismissed case include a notation that the case resulted in a non-conviction, she said.

“The ACLU is fully supportive of open government and the ability of the public to oversee the judicial function,” she said. “We also believe there needs to be a balance.”

The advisory committee hopes to have its final recommendations by September.

Eric Stevick: 425-339-3446, stevick@heraldnet.com