Many of the fundamental principles that we hold dear are in tension with each other. Courts are often called upon to resolve such conflicts between competing values.
Our Constitution and our long legal tradition require the courts to dispense justice openly and without delay. While openness is a core value in our state, that value is not absolute. Our Constitution and our long legal tradition also enshrine privacy as a fundamental right. These legal traditions require a balancing act to ensure that both are implemented to the greatest extent possible.
Jury deliberation is a simple example of a procedure in our legal system that is not openly administered. Despite the public interest in transparency in the administration of justice, jury deliberations are confidential to ensure the safety and privacy of jurors. This balancing act is indicative of the decisions courts must make when implementing such policies.
The principles of open justice and respect for privacy are often in tension. The courts have overcome this tension, in part, by using our inherent power to seal court records or limit access when necessary to protect fundamental interests, such as trial fairness, children’s privacy and victims of crime, personal data of individuals that could be exploited by third parties such as those found in family law cases, and trade secrets that could be misappropriated.
Over the past 20 years, our courts have struggled to catch up with the digital age where information is shared at lightning speed and is accessible on every device imaginable. We celebrate these advancements because they actually provide greater access to knowledge and information. This expansion of access is a worthy goal that our courts have supported and many counties have succeeded in digitizing all records. Access to court records is an important value that promotes transparency and accountability. However, digitized records also challenge us to recalibrate this balance between individual privacy and open records. The fact is that our current laws do not allow free access to all information contained in a court file such as medical records, certain mental assessments and personal identifiers. As this open technology develops, access to sensitive court records requires a re-examination of this balance between privacy and open access.
The issue that emerged as the subject of the Seattle Times’ recent editorial board editorial concerns children’s records in our juvenile justice system and involves two changed court rules. One is to maintain our current policy of not posting these children’s records on the Internet. We simply codify in a court rule the policy of the court information system. It is important for the public to know that the court file remains open and searchable at the courthouse where the file is kept and that our courtrooms where these cases are tried are open to the public. Again, I emphasize the necessary balance and the attempt to limit the wide distribution of these records on the Internet with the commitment to open the courts.
A majority of states provide more protection for children than we do in Washington. We have learned that most children who do bad things can and will, if given the opportunity, rehabilitate. Having recordings of their worst days widely available on the internet makes rehabilitation more difficult. This can limit their access to employment, housing, credit and education. This damage is significant and lasting.
The second rule at issue is a change in a court rule that would require the use of initials for children in court documents. Initials correspond to dates of birth and in many counties, to a person’s unique identifier. The court’s rule does not change any state law or limit information, including the full name that is available to criminal justice agencies in databases used nationwide. The content of this database of criminal persons is not affected by this rule.
Both rules were proposed by the Office of Public Defense and the Minorities and Justice Commission. These rules were adopted after being formally proposed and published for comment; and the ordinary and customary process used in our rule-making. Many stakeholders provided comments. Some objected to the rules. After consideration, this court adopted the rules.
Last week, the court voted to suspend implementation of the new rules because several courts and justice system partners raised concerns about how implementation is expected to occur.
Some object to the policy behind the new rules and others simply say it will take longer to rewrite the software used to track certain information in court. We have heard these concerns and given them time to consider next steps by delaying the effective date of the amendments until further court order. We referred the matter to our Supreme Court Rules Committee for a recommendation on how to proceed.
I remain in favor of the policy underlying the amendments to provide a chance for hope and rehabilitation while holding children accountable for their actions.
As we allow more time for discussion, it is critical for all of us in the legal community to dispel any misinformation about the rule, the process, and the intentions of others. Sometimes we are asked to do difficult tasks, but difficult is not impossible. I hope our rules committee will carefully consider the issues raised and recommend a way forward.