Many of the fundamental principles we hold dear are in tension with each other. Courts are often required to resolve such conflicts between competing values.
Our Constitution and long legal tradition require courts to administer justice openly, and without delay. While openness is a fundamental value in our state, this value is not absolute. Our Constitution and 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 an easy example of a procedure in our justice system that is not administered openly. Despite the public interest in the open administration of justice, jury deliberations are confidential to ensure the security and privacy of the jurors. This balancing act is indicative of the decisions that courts must make when implementing such policies.
The principles of open justice and respect for privacy are often in tension. Courts have navigated this tension, in part, by using our inherent power to seal court records or limit access when necessary to protect fundamental interests, such as the fairness of trials, the privacy of children and crime victims, the private personal details of individuals that could be exploited by third parties such as that found in family law cases, and trade secrets that could be misappropriated.
Over the last 20 years, our courts have been working to catch up to the digital age where information is shared with lightning speed and is accessible on every conceivable device. We celebrate these advancements because they in fact provide greater access to knowledge and information. This expansion of access is a laudable 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 that balance between individual privacy and open records. The fact is, our current laws do not permit open access to all information contained in a court record such as health records, certain mental evaluations and personal identifiers. As this open technology expands, access to sensitive court records requires a reexamination of that balance between privacy and open access.
The issue that has emerged as the subject of The Seattle Times editorial board’s recent editorial is about the records of children in our juvenile justice system and implicates two amended court rules. One involves maintaining our existing policy of not posting the records of these children on the internet. We are simply codifying in a court rule the Judicial Information System policy. It is important that the public know that the court file remains open and viewable at the courthouse where the file is maintained and our courtrooms where these matters are adjudicated are open to the public. Again, I point to the balancing that is required and the attempt to limit wide distribution of these records on the internet with the commitment to open 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 a chance, rehabilitate themselves. Having the records of their worst days broadly available on the internet makes rehabilitation harder. It can limit their access to jobs, housing, credit and education. These harms are significant and long lasting.
The second rule at issue is modification of a court rule that would require the use of initials for children in court documents. The initials correspond to birth dates and in many counties, a unique person identifier. The court rule does not modify any state statute or limit information, including the full name that is available to criminal justice agencies in databases used nationally. The contents of this criminal person database is not affected by this rule.
The two rules were proposed by the Office of Public Defense and the Minority and Justice Commission. These rules were adopted after being formally proposed and published for comment; and the ordinary and usual process used in our rule making. Many stakeholders provided feedback. Some opposed the rules. After consideration, this court adopted the rules.
Last week, the court voted to pause implementation of the new rules because several courts and justice system partners have expressed concerns about how implementation should occur.
Some object to the policy underlying the new rules and others simply say it will take more time to rewrite software used to track certain information in the courts. We have heard these concerns and have granted them time to consider next steps by delaying the effective date of the amendments until further order of the court. We referred the issue to our Supreme Court Rules Committee for a recommendation on how to proceed.
I remain in support of the policy behind the amendments to allow the chance for hope and rehabilitation while still holding children responsible for their actions.
As we allow more time for discussion, it is critical for all of us in the judicial 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 trust that our Rules Committee will carefully consider the issues raised and recommend a path forward.