A Practical View on Records Requests for Judicial Records

In my previous Records Requests for Judicial Records blog post, I recommended the following:

If a city or county receives a request for certain judicial records, I think that the request should be forwarded to the PRO designated by the court to handle such requests. That PRO should then respond in accordance with the procedures adopted by the relevant court.

While this approach is legally correct, I think that, practically speaking, it will be a rare occurrence that an agency receives a records request specifically for judicial records as contemplated by the court rules governing access to judicial records (e.g., GR 31.1).

So, today I want to address this issue from a practical standpoint: I think it’s much more likely that a requestor will make a records request for certain records, which may include judicial records, without specifically limiting the request just to the responsive judicial records.

I recently discussed this issue with Jon Walker, the Marysville City Attorney, and he offered the following scenario that I think illustrates this issue very well:

A city receives a request for records “related to the management, supervision, or administration of the municipal court,” which under GR 31.1(i)(2) is essentially the definition of a judicial administrative record. However, the requestor did not specifically limit their request to just the responsive judicial records.

So what’s the safest way to proceed should your agency receive such a request for records, some of which appear to be judicial records? Jon thinks—and I agree—that it would be best to handle the request as a request made pursuant to the Public Records Act (PRA), instead of a request for judicial records, for the following reasons:

The city almost certainly possesses records subject to the PRA that would be responsive to such a request. For example, records related to the municipal court budget, payroll records, and emails from a court employee to a non-court city employee all could be considered to be responsive to such a request. If the city failed to disclose any of those records, then, absent an exemption to disclosure, the city would be subject to penalties and attorney fees under the PRA.

While reasonable minds may differ, here are some additional considerations Jon raised that I think agencies across the state may find helpful as they deal with this issue:

• Just because a records request sounds like it’s solely for “judicial records,” the safest course of action is to treat the request as a request for public records. Responding to public records requests presents an enormous potential liability for agencies, and trying to use GR 31.1 as a “shortcut”—simply referring the requestor to the court’s PRO—could cost an agency thousands of dollars.
• One strategy for identifying actual “judicial records” is to set up a drive within an agency’s server that can be accessed only by an agency’s judicial officers and staff. The drive could then be used to store judicial records, as defined by court rules, when such records are created by judicial officers and staff. So long as those records are not shared with non-court agency employees, they should remain judicial records not subject to the PRA.
• If an agency, in response to a records request, conducts a search of its records pursuant to the PRA and finds only judicial records that are responsive to the request, then the agency should inform the requestor that it does not possess any responsive records under the PRA since judicial records are, pursuant to the Washington Supreme Court’s decision in City of Federal Way v. Koenig, not “public records” within the meaning of the PRA. However, in order to provide the “fullest assistance” in such circumstances, the agency should suggest to the requestor that he or she ask the relevant court for the records as well because that court will also have those records and will be able to disclose them in accordance with the relevant court rules.
• An agency should really think about whether it wants to take it upon itself to forward a records request to the court. Such a policy would create a new administrative burden for the agency that it would not otherwise be obligated to carry under the PRA. (Specifically, the Washington Supreme Court has, in Limstrom v. Ladenburg, held that an agency does not have a duty to go outside its own records and resources to try to identify or locate requested records.)

Have a question or comment about this information? Let me know below or contact me directly at rsepler@mrsc.org.