[Nos. 58864-8-I; 59161-4-I. Division Two. May 5, 2008.]
In the Matter of the Marriage of R.E., Appellant, and S.E., Respondent.
[1] Open Government Courts Open Administration of Justice Constitutional Protection. Const. art. I, § 10 guarantees the open administration of justice.
[2] Open Government Courts Judicial Records Access Presumption Countervailing Interests Effect In General. To the extent documents in a court file are intended to inform a judicial decision, they are presumed to be open, but such records may be sealed if other significant and fundamental rights override the public interest in open records.
[3] Open Government Courts Judicial Records Closure Procedure Elements. Court records may not be sealed unless (1) the need for closure is shown, (2) interested parties are given notice, (3) the least restrictive means available are used, (4) only those records necessary to serve the overriding interest are closed, and (5) the competing interests of the parties and the public are weighed.
[4] Open Government Courts Judicial Records Closure Review Standard of Review. Upon review of a trial court's decision to seal or unseal documents in a court action or proceeding, an appellate court reviews the applicable standard de novo and, if the proper standard was applied, reviews the decision to seal or unseal records for abuse of discretion. A court abuses its discretion if its decision is manifestly unreasonable or is based on untenable grounds.
[5] Open Government Courts Judicial Records Closure Court Rule Scope All Court Records. GR 15 specifies the procedure for sealing court files and applies to all court records.
[6] Open Government Courts Judicial Records Closure Court Rule Balancing Test In General. Under GR 15, court records may be sealed from public view upon written judicial findings that sealing or redaction "is justified by identified compelling privacy or safety concerns that outweigh the public interest in access to the court record."
[7] Open Government Courts Judicial Records Closure Court Rule Balancing Test Factors in Favor of Sealing Statutory Authority To Seal Records. For purposes of deciding whether the sealing of court records is justified in a particular instance, the existence of a statute permitting the records to be sealed is a factor that may be weighed against the public interest in access to the records under GR 15(c)(2)(A).
[8] Open Government Courts Judicial Records Closure Family Court Statutory Provisions. RCW 26.12.080, which permits a family court judge to close any part of the public files to protect public policy, public morals, or the interests of children, must be read in harmony with the constitution and court rules. The constitution establishes the public's right to access, which means that sealing court records under the statute requires the justification of an overriding interest. The language of the statute is a reflection of its time; injury to public policy or public morals is one way to talk about an overriding interest.
[9] Open Government Courts Judicial Records Closure Family Court Court Rules Invasion of Personal Privacy What Constitutes. Under GR 22, public access to records in family law cases is to be facilitated "provided that such access will not present an unreasonable invasion of personal privacy." Personal privacy is unreasonably invaded "only if disclosure of information . . . (a) would be highly offensive to a reasonable person and (b) is not of legitimate concern to the public."
[10] Open Government Courts Judicial Records Closure Family Court Court Rules General and Specific Rules Interplay. When a motion is made to seal the record of a family law case, GR 22 states the competing interests to be weighed: privacy versus the public's right to the open administration of justice. GR 15 generally governs the sealing of court records, and GR 22 adds specific provisions for family law cases. The rules do not conflict, and both apply when the record of a family law case is sought to be sealed.
[11] Open Government Courts Judicial Records Closure Family Court Court Rules Sufficiency. GR 15 and GR 22 provide a sufficient procedure for deciding motions to seal records in family law cases. The rules allow a court to consider the factors unique to family law cases in weighing the competing interests of the parties and the public. GR 22(c) gives special protection to certain types of family law records, such as financial source documents and health care records. The rules allow the court adequate discretion to consider the nature of the proceedings and to craft appropriate, narrowly drawn orders when compelling interests are identified. There is no need for a different standard for sealing family law court files.
[12] Open Government Courts Judicial Records Closure Unsealing Records Sealed Under Former Court Rule Effect. When a party moves to unseal court records that were sealed under former GR 15 (2002) and the original sealing order does not conform to GR 15 as amended in 2006, the current standard for unsealing does not apply; rather, the proponent for unsealing the records should be permitted to show that under the standards of GR 15 as amended in 2006, the original sealing order was unjustified and overbroad.
[13] Open Government Courts Judicial Records Closure Justification Support in Record Necessity. The basis for a court's sealing a document filed with the court must be apparent from the record of the sealing proceedings.
[14] Open Government Courts Judicial Records Closure Alternatives Redaction In General. Under GR 15(c)(3), a court record may not be sealed in its entirety if redaction will adequately resolve the issues before the court. While redaction can present a considerable burden upon the court, particularly if the court file is large in size, the court may require the parties to propose redactions and may reject redaction altogether if it becomes unduly burdensome, so long as the court is mindful of the presumption of openness.
[15] Open Government Courts Judicial Records Closure Review Record Inadequacy Remedy RemandWhen an appellate court finds that a trial court's order sealing court records is overbroad in that the record of the sealing proceedings does not support sealing all of the documents encompassed by the order, the case may be remanded to the trial court for its further review and for the entry of additional findings to clarify its intent.
[16] Courts Commissioners Revision Review Record Standard of Review. On a motion to revise a superior court commissioner's ruling, the superior court reviews the commissioner's decision de novo based on the record.
[17] Courts Commissioners Revision Appellate Review Record Inadequacy Remedy Remand. When an appellate court is unable to determine what standard of review was applied by a superior court upon a motion to revise a commissioner's ruling, the case may be remanded to the superior court for application of the correct standard of review.
Nature of Action: In a marriage dissolution action in which the trial court sealed the court filed, the wife moved to unseal the file. She also sought a domestic violence protection order.
Superior Court: The Superior Court for King County, No. 98-3-05801-7, Leonid Ponomarchuk, J. Pro Tem., on August 25, 31, and October 5, 2006, entered orders unsealing all but 39 documents, and Cheryl B. Carey, J., on August 23 and September 12, 2006, denied revision of the commissioner's decisions to deny the wife's request for a protection order and to impose CR 11 sanctions against the wife for bad faith and intransigence.
Court of Appeals: Holding that the trial court applied the correct test to determine whether to unseal records, but that the sealing orders were overbroad, and that it could not be determined from the record whether the trial court applied the correct standard of review in denying revision of the commissioner's decisions to deny a protection order and to impose sanctions, the court remands the case for further proceedings.
Shelly M. Hall- (of Stokes Lawrence) and Brendan F. Patrick-, for appellant.
Paul Seligmann-; and Catherine W. Smith- and Valerie A. Villacin- (of Edwards Sieh Smith & Goodfriend, PS), for respondent.
Ά1 ELLINGTON, J. In 2002, parties to an acrimonious dissolution agreed to seal the court file in order to protect the mental health and privacy of their eldest child. In 2006, the former wife, R.E., sought an order unsealing the file. The court unsealed all but 39 documents. Both parties appeal. R.E. contends the court left too much sealed, while S.E. argues the court should have left the entire file sealed. We hold the court applied the correct test but that the 2006 sealing order was overbroad. We affirm in part and remand for further consideration.
Ά2 R.E. also appeals denial of a protection order and imposition of sanctions. We remand for application of the correct standard of review on a motion for revision.
BACKGROUND
Ά3 R.E. and S.E. Ά4 In 2002, after entry of the final decree, the parties agreed that the dissolution file should be sealed in its entirety. They submitted letters from two of J.E.'s mental health providers, each of whom recommended that court records pertaining to custody and visitation issues be sealed to protect J.E.'s privacy and well being. The court sealed the entire file in a one paragraph order, without making findings. Ά5 In 2006, R.E. filed a motion to unseal the file. In opposition to the motion, S.E. relied upon the original recommendations from treatment providers, as well as a statement from J.E.'s current therapist: I have been informed that these court files include records relating to psychiatric and mental health treatment [J.E.] has received, prepared by his former treatment providers. I feel that it would be contrary to [J.E.]'s interest and disruptive to the therapeutic process to have prior or current mental health records and reports, or documents referencing those reports, accessible to the general public. After reviewing all eight volumes of the file, the court commissioner unsealed the file except for 39 documents, which he found should remain sealed to protect the privacy of both children: Based on the recommendations of [the three treatment providers], the court finds it would be harmful to the mental health and current therapeutic treatment of [J.E.] to unseal the reports, statements, discovery and pleadings referring to or containing exhibits dealing with the aforementioned. The court finds that it would be equally detrimental to [A.E.] for the unsealing of reports, statements, discovery and pleadings referring to or containing exhibits dealing with himself or his sibling. The court finds that there are compelling privacy concerns for [J.E.] and [A.E.] that outweigh the public's interest in this information. Additionally, the court ordered any future documents "concerning" either child to be filed under seal. Ά6 In separate proceedings, R.E. sought a domestic violence protection order. The court found no evidence of domestic violence, denied the order, and imposed Civil Rule (CR) 11 sanctions for bad faith and intransigence. ANALYSIS Order Sealing Court Records Ά10 GR 15 also provides that "[s]ufficient privacy or safety concerns that may be weighed against the public interest include findings that . . . [t]he sealing . . . is permitted by statute." Whenever the court before whom any matter arising under this chapter is pending, deems publication of any matter before the court contrary to public policy or injurious to the interests of children or to the public morals, the court may by order close the files or any part thereof in the matter and make such other orders to protect the privacy of the parties as is necessary. S.E. contends this statute gives the court discretion to seal all documents related to the children. Ά11 The statute must be read in harmony with the constitution and the court rules. Ά13 GR 22 simply states the competing interests to be weighed: privacy versus the public right to the open administration of justice. As with GR 15, records may be sealed only when an interest is sufficiently compelling to override the public's right to the open administration of justice. Ά14 Essentially S.E. argues that we should adopt a different standard for sealing records in family law cases. Certainly these cases can present difficult privacy issues. Family law litigants have no choice of forum because their remedies can come only from the courts. Private information is unavoidably disclosed. Financial records, health records, counseling reports, evaluations by various professionals, the history of family dynamicsall manner of personal information is necessarily relevant to decisions about the marital estate and the minor children. All too often, rancor taints the parties' judgment, and the file becomes an unwieldy repository of untested and unsavory allegations. Indeed, the file here is larger and more acrimonious than most. It is littered with accusations and counteraccusations and contains highly personal financial and health information. Ά16 We turn to the specifics of the 2006 order, in which the court revisited and revised the original sealing order. The first issue is the standard for unsealing court records. GR 15(e)(3) now provides that "[a] sealed court record in a civil case shall be ordered unsealed only upon stipulation . . . or upon motion and written notice to all parties and proof that identified compelling circumstances for continued sealing no longer exist." S.E. argues that R. E. failed to satisfy the rule by showing the original reason for sealing the file no longer exists, and the court below should not have granted any part of her motion to unseal. Ά17 Applying the current rule to an order entered before its adoption presents several difficulties. The unsealing provision of the current rule clearly contemplates that the sealing order was entered in compliance with the current rule. But former GR 15 did not require findings, did not address redaction, and did not prohibit sealing based only upon the parties' agreement. Ά18 The 2002 sealing order reflects these differences. The order does not state its basis, though the court interlineated "agreed" in the caption. Ά19 And applying the current standard for unsealing in these circumstances would run afoul of Rufer: "[A]ny records that were filed with the court in anticipation of a court decision . . . should be sealed or continue to be sealed only when the court determines . . . that there is a compelling interest which overrides the public's right to the open administration of justice." Ά21 The commissioner who entered the 2006 sealing order took exactly this approach. He made a de novo review of the entire, voluminous file, found "it would be harmful to the mental health and current therapeutic treatment of J.E." Ά23 However, despite its broad discretion in these matters, the court did seal too much. The order goes too far in four respects. Ά24 First, the findings state that it would be harmful to unseal reports, statements, discovery, exhibits and pleadings referring to J.E.'s "mental health and current therapeutic treatment." Ά25 Second, the court found that unsealing documents related to either child "would be equally detrimental to [the younger child]," Ά26 Third, there is nothing in the record to suggest that redaction was considered. GR 15(c)(3) requires that records not be sealed in their entirety "when redaction will adequately resolve the issues before the court." We recognize that redaction can present a considerable burden upon the court, particularly given a file of this size. But judges may require the parties to propose the redactions and may reject redaction altogether if it becomes unduly burdensome, so long as the court is mindful of the presumption of openness. Ά27 Fourth, the order requires that all future documents referring to either child be filed under seal, without regard to whether the reference to the child is incidental or whether the document relates to the stated privacy concern. Ά28 S.E. defends these aspects of the order on grounds of the burden upon the court presented by any other approach. For example, as to future filings, he asserts that the main subject of all filings is the children, and the order allows the court to "avoid unnecessary work while ensuring the children's privacy." Ά29 In these aspects the order does not comply with GR 15. We therefore remand to the court commissioner for further review in light of the above discussion. If the findings did not fully reflect the court's intent, the court may amend the findings on remand. Protection Order Ά30 In a separate proceeding, a different commissioner denied R.E.'s motion for a protection order. She later filed a motion for revision, which was denied. She contends the judge improperly reviewed the commissioner's order for substantial evidence and improperly imposed sanctions for intransigence. Ά33 As to the CR 11 sanctions, the record supports the court's written finding of bad faith and intransigence. If the court makes the same ruling on remand, it may impose the same sanctions. Ά34 Affirmed in part and remanded. No attorney fees are awarded. AGID and COX, JJ., concur.