I’m Not Judging You: Handling Public Records Requests Related to the Courts

The Washington Public Records Act (PRA) has the laudable goal of ensuring transparency and access to the public records of state and local agencies. However, Washington courts have long interpreted the PRA as not applying to court records. Cases such as City of Federal Way v. Koenig (2009), which reaffirmed the 1986 case Nast v. Michels, discuss the difference between records created by the court and other records created by state and local agencies.

Despite this, requests for public records related to a local court may make their way to a city or county that has a relationship with that court. How should a non-court agency respond?

Access to Court Records

Despite the PRA not applying to the courts, the Washington Supreme Court has opted to make certain court records available under court general rules (GR).

Records that relate to in-court proceedings (case files, dockets, calendars, exhibits, etc.) are governed by GR 31 for most types of cases. Access to family law and guardianship case records is governed by GR 22.

Administrative court records, meaning those records created or maintained by a court or judicial agency that relate to the management, supervision, or administration of the court or judicial agency, are governed by GR 31.1. Under GR 31.1(m), each court must adopt procedures for accepting and responding to requests for administrative records and must designate a public records officer (PRO) to handle such requests.

In addition, GR 31.1 contains some unique provisions that substantially differ from those of the PRA, including the following:

• Attorney fees, costs, civil penalties, and fines cannot be awarded for a failure to disclose an administrative record.
• A court or judicial agency may require a deposit in the amount of the total estimated cost of providing copies for a request.
• GR 31.1 incorporates all of the exemptions to the PRA by reference and provides a number of unique exemptions for certain judicial records.
• A court or judicial agency may charge a fee of up to $30 per hour for the research and preparation services required to fulfill a request taking longer than one hour (the fee may be charged from the second hour onward).

Chamber records, i.e., any writings created by a judicial officer or their staff, are not subject to public access at all, see GR 31.1(m).

MRSC has long advised that when a city or county receives a records request for court records, they direct the requestor to the designated court PRO who can provide the necessary access. But this guidance comes with a big caveat — cities and counties often have their own records related to the administration of the local courts.

Access to Local Records About the Courts

There are close financial relationships between a county and its district courts. There are even closer relationships between a city and its municipal courts.

Where a city contracts with the county or another city for court services there will be additional and often duplicate records that might be responsive to a public records request. A city or county might have a great many records related to its courts, such as budget records, payroll, and emails between court employees and non-court city or county employees. Consider, also, all the records related to property management and premises security when courts share space in city hall or judicial centers. In all these cases, the PRA will apply to the city or county records related to the courts.

So, what is the safest way to proceed should your agency receive such a request for records “related to the management, supervision, or administration” of the local court? While reasonable minds may disagree, we believe a local agency should provide responsive records it has control over.

Treat the request as any other

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.

Set up a separate, secured drive

If the court and city or county is sharing information technology (IT) infrastructure, 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.

Refer requestors to the court

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 (perhaps on a shared email server), 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 they ask the relevant court for the records as well because that court, which possesses those records, will be able to disclose them in accordance with the relevant court rules.

Consider the administrative burden

A non-court agency should really think about whether it wants to take it upon itself to forward a records request to a court. Such a policy would create a new administrative burden for the agency that it would not otherwise be obligated to carry out under the PRA. (Specifically, the Washington Supreme Court has, in Limstrom v. Ladenburg, noted that an agency does not have a duty to go outside its own records and resources to try to identify or locate requested records that it does not use.)

I’m Not Judging You, But Others May

As with most aspects of complying with the PRA, cities and counties can minimize their potential risk of litigation by adopting (and following!) clear policies and procedures that set out how they will handle requests that may involve court and other judicial records. Providing an explanation to the public in advance, such as posting the court records contact information along with your own records request contact information, may help requestors direct their questions to the correct agency in the first place.