Wash. Gen. R. 31.1

GENERAL PRINCIPLES

(a) Policy and Purpose. Consistent with the principles of open administration of justice as

provided in article I, section 10 of the Washington State Constitution, it is the policy of the

judiciary to facilitate access to administrative records. A presumption of access applies to the

judiciary’s administrative records. Access to administrative records, however, is not absolute

and shall be consistent with exemptions for personal privacy, restrictions in statutes, restrictions

in court rules, and as required for the integrity of judicial decision-making. Access shall not

unduly burden the business of the judiciary.

(b) Overview of Public Access to Judicial Records. There are three categories of judicial

records.

(1) Case records are records that relate to in-court proceedings, including case files,

dockets, calendars, and the like. Public access to these records is governed by GR 31, which

refers to these records as “court records,” and not by this GR 31.1. Under GR 31, these records

are presumptively open to public access, subject to stated exceptions.

(2) Administrative records are records that relate to the management, supervision, or

administration of a court or judicial agency. A more specific definition of “administrative

records” is in section (i) of this rule. Under section (j) of this rule, administrative records are

presumptively open to public access, subject to exceptions found in sections (j) and (l) of this

rule.

(3) Chambers records are records that are controlled and maintained by a judge’s chambers.

A more specific definition of this term is in section (m) of this rule. Under section (m),

chambers records are not open to public access.

PROCEDURES FOR ADMINISTRATIVE RECORDS

(c) Procedures for Records Requests.

(1) COURTS AND JUDICIAL AGENCIES TO ADOPT PROCEDURES. Each court and

judicial agency must adopt a policy implementing this rule and setting forth its procedures for

accepting and responding to administrative records requests. The policy must include the

designation of a public records officer and shall require that requests from the identified

individual or, if an entity, an identified entity representative, be submitted in writing to the

designated public records officer. Best practices for handling administrative records requests

shall be developed under the authority of the Board for Judicial Administration.

COMMENT: When adopting policies and procedures, courts and

judicial agencies will need to carefully consider many issues, including

the extent to which judicial employees may use personally owned

computers and other media devices to conduct official business and the

extent to which the court or agency will rely on the individual employee to

search their personally owned media devices for documents in response to

a records request. For judicial officers and their chambers staff,

documents on personal media devices may still qualify as chambers

records, see section (m) of this rule.

(2) PUBLICATION OF PROCEDURES FOR REQUESTING ADMINISTRATIVE

RECORDS. Each court and judicial agency must prominently publish the procedures for

requesting access to its administrative records. If the court or judicial agency has a web site, the

procedures must be included there. The publication shall include the public records officer’s

work mailing address, telephone number, fax number, and e-mail address.

(3) INITIAL RESPONSE. Each court and judicial agency must initially respond to a

written request for access to an administrative record within 5 working days of its receipt, but for

courts that convene infrequently no more than 30 calendar days, from the date of its receipt. The

response shall acknowledge receipt of the request and include a good faith estimate of the time

needed to respond to the request. The estimate may be later revised, if necessary. For purposes

of this rule, “working days” mean days that the court or judicial agency, including a part-time

municipal court, is open.

(4) COMMUNICATION WITH REQUESTER. Each court and judicial agency must

communicate with the requester as necessary to clarify the records being requested. The court or

judicial agency may also communicate with the requester in an effort to determine if the

requester’s need would be better served with a response other than the one actually requested.

(5) SUBSTANTIVE RESPONSE. Each court and judicial agency must respond to the

substance of the records request within the time frame specified in the court’s or judicial

agency’s initial response to the request. If the court or judicial agency is unable to fully comply

in this time frame, then the court or judicial agency should comply to the extent practicable and

provide a new good faith estimate for responding to the remainder of the request. If the court or

judicial agency does not fully satisfy the records request in the manner requested, the court or

judicial agency must justify in writing any deviation from the terms of the request.

(6) EXTRAORDINARY REQUESTS LIMITED BY RESOURCE CONSTRAINTS. If a

particular request is of a magnitude that the court or judicial agency cannot fully comply within a

reasonable time due to constraints on the court’s or judicial agency’s time, resources, and

personnel, the court or judicial agency shall communicate this information to the requester. The

court or judicial agency must attempt to reach agreement with the requester as to narrowing the

request to a more manageable scope and as to a time frame for the court’s or judicial agency’s

response, which may include a schedule of installment responses. If the court or judicial agency

and requester are unable to reach agreement, then the court or judicial agency shall respond to

the extent practicable and inform the requester that the court or judicial agency has completed its

response.

(7) RECORDS REQUESTS THAT INVOLVE HARASSMENT, INTIMIDATION,

THREATS TO SECURITY, OR CRIMINAL ACTIVITY. A court or judicial agency may deny

a records request if it determines that the request was made to harass or intimidate the court or

judicial agency or its employees; fulfilling the request would likely threaten the security of the

court or judicial agency; fulfilling the request would likely threaten the safety or security of

judicial officers, staff, family members of judicial officers or staff, or any other person; or

fulfilling the request may assist criminal activity.

(d) Review of Records Decision.

(1) NOTICE OF REVIEW PROCEDURES. The public records officer’s response to a

public records request shall include a written summary of the procedures under which the

requesting party may seek further review.

(2) DEADLINE FOR SEEKING INTERNAL REVIEW. A record requester’s petition

under section (d)(3) seeking internal review of a public records officer’s decision must be

submitted within 90 days of the public records officer’s decision.

(3) INTERNAL REVIEW WITHIN COURT OR AGENCY. Each court and judicial

agency shall provide a method for review by the judicial agency’s director, presiding judge, or

judge designated by the presiding judge. For a judicial agency, the presiding judge shall be the

presiding judge of the court that oversees the agency. The court or judicial agency may also

establish intermediate levels of review. The court or judicial agency shall make publicly

available the applicable forms. The review proceeding is informal and summary. The review

proceeding shall be held within 5 working days, but for courts that convene infrequently no more

than 30 calendar days, from the date the court or agency receives the request for review. If that

is not reasonably possible, then within 5 working days the review shall be scheduled for the

earliest practical date.

(4) EXTERNAL REVIEW. Upon the exhaustion of remedies under section (d)(3), a

record requester aggrieved by a court or agency decision may obtain further review by choosing

between the two alternatives set forth in subsections (i) and (ii) of this section (d)(4).

(i) REVIEW VIA CIVIL ACTION IN COURT. The requesting person may use a judicial

writ of mandamus, prohibition, or certiorari to file a civil action in superior court challenging the

records decision.

COMMENT: Subsection (i) does not create any new judicial

remedies, but merely recognizes existing procedures for initiating a civil

action in court.

(ii) INFORMAL REVIEW BY VISITING JUDGE OR OTHER OUTSIDE DECISION

MAKER. The requesting person may seek informal review by a person outside the court or

judicial agency. If the requesting person seeks review of a decision made by a court or made by a

judicial agency that is directly reportable to a court, the outside review shall be by a visiting

judicial officer. If the requesting person seeks review of a decision made by a judicial agency

that is not directly reportable to a court, the outside review shall be by a person agreed upon by

the requesting person and the judicial agency. In the event the requesting person and the judicial

agency cannot agree upon a person, the presiding superior court judge in the county in which the

judicial agency is located shall either conduct the review or appoint a person to conduct the

review. The review proceeding shall be informal and summary. The decision resulting from the

informal review proceeding may be further reviewed in superior court pursuant to a writ of

mandamus, prohibition, or certiorari. Decisions made by a judge under this subsection (ii) are

part of the judicial function.

(iii) DEADLINE FOR SEEKING EXTERNAL REVIEW. A request for external review

must be submitted within 30 days of the issuance of the court or judicial agency’s final decision

under subsection (d)(3).

(e) Monetary Awards Not Allowed. Attorney fees, costs, civil penalties, or fines may not

be awarded under this rule.

(f) Persons Who Are Subjects of Records.

(1) Unless otherwise required or prohibited by law, a court or judicial agency has the

option of notifying a person named in a record or to whom a record specifically pertains, that

access to the record has been requested.

(2) A person who is named in a record, or to whom a record specifically pertains, may

present information opposing the disclosure to the applicable decision maker under subsections

(c) and (d).

(3) If a court or judicial agency decides to allow access to a requested record, a person who

is named in that record, or to whom the record specifically pertains, has a right to initiate review

under subsections (d)(3)-(4) or to participate as a party to any review initiated by a requester

under subsections (d)(3)-(4). If either the record subject or the record requester objects to

informal review under subsection (d)(4)(ii), such alternative shall not be available. The deadlines

that apply to a requester apply as well to a person who is a subject of a record.

(g) Court and Judicial Agency Rules. Each court may from time to time make and

amend local rules governing access to administrative records not inconsistent with this rule.

Each judicial agency may from time to time make and amend agency rules governing access to

its administrative records not inconsistent with this rule.

(h) Charging of Fees.

(1) A fee may not be charged to view administrative records, except the requester may be

charged for research required to locate, obtain, or prepare the records at the rate set forth in

section (h)(4).

(2) A fee may be charged for the photocopying or scanning of administrative records. If

another court rule or statute specifies the amount of the fee for a particular type of record, that

rule or statute shall control. Otherwise, the amount of the fee may not exceed the amount that is

authorized in the Public Records Act, chapter 42.56 RCW.

(3) The court or judicial agency may require a deposit in an amount not to exceed the

estimated cost of providing copies for a request. If a court or judicial agency makes a request

available on a partial or installment basis, the court or judicial agency may charge for each part

of the request as it is provided. If an installment of a records request is not claimed or reviewed

within 30 days, the court or judicial agency is not obligated to fulfill the balance of the request.

(4) A fee not to exceed $30 per hour may be charged for research and preparation services

required to fulfill a request taking longer than one hour. The fee shall be assessed from the

second hour onward.

COMMENT: The authority to charge for research services is

discretionary, allowing courts to balance the competing interests between

recovering the costs of their response and ensuring the open administration

of justice. The fee should not exceed the actual costs of response.

(5) A court or judicial agency may require prepayment of fees.

APPLICATION OF RULE FOR ADMINISTRATIVE RECORDS

This rule applies to all administrative records, regardless of the physical form of the record,

the method of recording the record, or the method of storage of the record.

(i) Definitions.

(1) “Access” means the ability to view or obtain a copy of an administrative record.

(2) “Administrative record” means a public record created by or maintained by a court or

judicial agency and related to the management, supervision, or administration of the court or

judicial agency.

COMMENT: The term “administrative record” does not

include any of the following: (1) “court records” as defined in GR

31; (2) chambers records as set forth later in this rule; or (3) an

attorney’s client files that would otherwise be covered by the

attorney-client privilege or the attorney work product privilege.

(3) “Court record” is defined in GR 31.

(4) “Judge” means a judicial officer as defined in the Code of Judicial Conduct (CJC)

Application of the Code of Judicial Conduct subsection I(A).

(5) “Public” includes an individual; partnership; joint venture; public or private

corporation; association; federal, state, or local governmental entity or agency, however

constituted; or any other organization or group of persons, however organized.

(6) “Public record” includes any writing, except chambers records and court records,

containing information relating to the conduct of government or the performance of any

governmental or proprietary function prepared, owned, used, or retained by any court or

judicial agency regardless of physical form or characteristics. “Public record” also

includes metadata for electronic administrative records.

COMMENT: See O’Neill v. City of Shoreline, 170 Wn.2d 138,

240 P.3d 1149 (2010) (defining “metadata”).

(7) “Writing” means handwriting, typewriting, printing, photostating, photographing,

and every other means of recording any form of communication or representation

including, but not limited to, letters, words, pictures, sounds, or symbols, or combination

thereof, and all papers, maps, magnetic or paper tapes, photographic films and prints,

motion picture, film and video recordings, magnetic or punched cards, discs, drums,

diskettes, sound recordings, and other documents including existing data compilations from

which information may be obtained or translated.

COMMENT: E-mails and telephone records are included in

this broad definition of “writing.”

(j) Administrative Records--General Right of Access. Court and judicial agency

administrative records are open to public access unless access is exempted or prohibited

under this rule, other court rules, federal statutes, state statutes, court orders, or case law.

To the extent that records access would be exempt or prohibited if the Public Records Act

applied to the judiciary’s administrative records, access is also exempt or prohibited under

this rule. To the extent that an ambiguity exists as to whether records access would be

exempt or prohibited under this rule or other enumerated sources, responders and

reviewing authorities shall be guided by the Public Records Act, chapter 42.56 RCW, in

making interpretations under this rule. In addition, to the extent required to prevent a

significant risk to individual privacy or safety interests, a court or judicial agency shall

delete identifying details in a manner consistent with this rule when it makes available or

publishes any public record; however, in each instance, the justification for the deletion

shall be provided fully in writing.

(k) Entities Subject to Rule.

(1) This rule applies to the Supreme Court, the Court of Appeals, the superior courts,

the district and municipal courts, and the following judicial agencies:

(i) All judicial organizations that are overseen by a court, including entities that are

designated as agencies, departments, committees, boards, commissions, task forces, and similar

groups;

(ii) The Superior Court Judges’ Association, the District and Municipal Court Judges’

Association, and similar associations of judicial officers and employees;

(iii) The Washington State Office of Civil Legal Aid and the Washington State Office of

Public Defense; and

(iv) All subgroups of the entities listed in this section (k)(1).

COMMENT: The elected court clerks and their staff are not included

in this rule because (1) they are covered by the Public Records Act and (2)

they do not generally maintain the judiciary’s administrative records that

are covered by this rule.

(2) This rule does not apply to the Washington State Bar Association. Public access to the

Bar Association’s records is governed by [a proposed General Rule 12.4, pending before the

Supreme Court].

(3) A judicial officer is not a court or judicial agency.

COMMENT: This provision protects judges and court

commissioners from having to respond personally to public records

requests. Records requests would instead go to the court’s public

records officer.

(4) An attorney or entity appointed by a court or judicial agency to provide legal

representation to a litigant in a judicial or administrative proceeding does not become a judicial

agency by virtue of that appointment.

(5) A person or entity entrusted by a judicial officer, court, or judicial agency with the

storage and maintenance of its public records, whether part of a judicial agency or a third party,

is not a judicial agency. Such person or agency may not respond to a request for access to

administrative records, absent express written authority from the court or judicial agency or

separate authority in court rule to grant access to the documents.

COMMENT: Judicial e-mails and other documents sometimes reside

on IT servers; some are in off-site physical storage facilities. This

provision prohibits an entity that operates the IT server from disclosing

judicial records. The entity is merely a bailee, holding the records on

behalf of a court or judicial agency, rather than an owner of the records

having independent authority to release them. Similarly, if a court or

judicial agency puts its paper records in storage with another entity, the

other entity cannot disclose the records. In either instance, it is the court

or judicial agency that needs to make the decision as to releasing the

records. The records request needs to be addressed by the court’s

or judicial agency’s public records officer, not by the person or

entity having control over the IT server or the storage area. On the

other hand, if a court or judicial agency archives its records with the

state archivist, relinquishing by contract its own authority as to

disposition of the records, the archivist would have separate

authority to disclose the records.

Because of this rule’s broad definition of “public record,” this

paragraph (6) would apply to electronic records, such as e-mails

(and their metadata) and telephone records, among a wide range of

other records.

(l) Exemptions. In addition to exemptions referred to in section (j), the following

categories of administrative records are exempt from public access:

(1) Requests for judicial ethics opinions;

(2) Minutes of meetings held exclusively among judges, along with any staff;

COMMENT: Meeting minutes do not always contain

information that needs to be withheld from public access. Courts

have discretion whether to release meeting minutes, because an

exemption from this rule merely means that a document is not

required to be disclosed. Disclosure would be appropriate if the

document does not contain information of a confidential, sensitive,

or protected nature. Courts and judicial agencies are encouraged to

carefully consider whether some, or all, of their meeting minutes

should be open to public access. Adopting a local rule on this issue

would assist the public in knowing which types of minutes are

accessible and which are not.

(3) Preliminary drafts, notes, recommendations, and intra-agency memorandums in

which opinions are expressed or policies formulated or recommended are exempt under

this rule, except that a specific record is not exempt when publicly cited by a court or

agency in connection with any court or agency action. This exemption applies to a record

only while a final decision is pending on the issue that is being addressed in that record;

once the final decision has been made, the record is no longer covered by this exemption.

For purposes of documents related to budget negotiations with a budgetary authority, the

“final decision” is the decision by the budgetary authority to adopt the budget for that year

or biennium.

(4) Evaluations and recommendations concerning candidates seeking appointment or

employment within a court or judicial agency;

COMMENT: Paragraph (4) is intended to encompass

documents such as those of the Supreme Court’s Capital Counsel

Committee, which evaluates attorneys for potential inclusion on a

list of attorneys who are specially qualified to represent clients in

capital cases.

(5) Personal identifying information, including individuals’ home contact information,

Social Security numbers, date of birth, driver’s license numbers, and identification/security

photographs;

(6) Documents related to an attorney’s request for a trial or appellate court defense

expert, investigator, or other services, any report or findings submitted to the attorney or

court or judicial agency by the expert, investigator, or other service provider, and the

invoicing of the expert, investigator or other service provider during the pendency of the case in

any court. Payment records are not exempt, provided that they do not include medical records,

attorney work product, information protected by attorney-client privilege, information sealed by

a court, or otherwise exempt information;

(7) Documents, records, files, investigative notes and reports, including the complaint and

the identity of the complainant, associated with a court’s or judicial agency's internal

investigation of a complaint against the court or judicial agency or its contractors during the

course of the investigation. The outcome of the court’s or judicial agency’s investigation is not

exempt;

(8) [Reserved.];

(9) Family court mediation files;

(10) Juvenile court probation social files;

(11) Those portions of records containing specific and unique vulnerability assessments or

specific and unique emergency and escape response plans, the disclosure of which would have a

substantial likelihood of threatening the security of a judicial facility or any individual’s safety;

and

(12) The following records of the Certified Professional Guardian Board:

(i) Investigative records compiled by the Board as a result of an investigation conducted by

the Board as part of the application process, while a disciplinary investigation is in process under

the Board’s rules and regulations, or as a result of any other investigation conducted by the

Board while an investigation is in process. Investigative records related to a grievance become

open to public inspection once the investigation is completed.

(ii) Deliberative records compiled by the Board or a panel or committee of the Board as

part of a disciplinary process.

(iii) A grievance shall be open to public access, along with any response to the grievance

submitted by the professional guardian or agency, once the investigation into the grievance has

been completed or once a decision has been made that no investigation will be conducted. The

name of the professional guardian or agency shall not be redacted from the grievance.

CHAMBERS RECORDS

(m) Chambers Records. Chambers records are not administrative records and are not

subject to disclosure.

COMMENT: Access to chambers records could necessitate a

judicial officer having to review all records to protect against disclosing

case sensitive information or other information that would intrude on the

independence of judicial decision-making. This would effectively make the

judicial officer a de facto public records officer and could greatly

interfere with judicial functions.

(1) “Chambers record” means any writing that is created by or maintained by any judicial

officer or chambers staff, and is maintained under chambers control, whether directly related to

an official judicial proceeding, the management of the court, or other chambers activities.

“Chambers staff” means a judicial officer’s law clerk, a judicial officer’s administrative staff,

and any other staff when providing support directly to the judicial officer at chambers.

COMMENT: Some judicial employees, particularly in small

jurisdictions, split their time between performing chambers duties and

performing other court duties. An employee may be “chambers staff” as

to certain functions, but not as to others. Whether certain records are

subject to disclosure may depend on whether the employee was acting in a

chambers staff function or an administrative staff function with respect to

that record.

Records may remain under chambers control even though they are

stored elsewhere. For example, records relating to chambers activities

that are stored on a judge’s personally owned or workplace-assigned

computer, laptop computer, cell phone, and similar electronic devices

would still be chambers records. As a further example, records that are

stored for a judicial chambers on external servers would still be under

chambers control to the same extent as if the records were stored directly

within the chambers. However, records that are otherwise subject to

disclosure should not be allowed to be moved into chambers control as a

means of avoiding disclosure.

(2) Court records and administrative records do not become chambers records merely

because they are in the possession or custody of a judicial officer or chambers staff.

COMMENT: Chambers records do not change in character by virtue of being

accessible to another chambers. For example, a data base that is shared by multiple

judges and their chambers staff is a “chambers record” for purposes of this rule, as

long as the data base is only being used by judges and their chambers staff.

IMPLEMENTATION AND EFFECTIVE DATE

(n) Best Practices. Best practice guidelines adopted by the Supreme Court may be relied

upon in acting upon public requests for documents.

(o) Effective Date of Rule.

(1) This rule will go into effect on a future date to be determined by the Supreme Court

based upon a recommendation from the Board for Judicial Administration. The rule will apply

to records that are created on or after that date.

COMMENT: A delayed effective date is being used to allow time for

development of best practices, training, and implementation. The effective

date will be added to the rule once it has been determined.

(2) Public access to records that are created before that date are to be analyzed according to

other court rules, applicable statutes, and the common law balancing test. The Public Records

Act, chapter 42.56 RCW, does not apply to judicial records, but it may be used for nonbinding

guidance.