January 2013 Bar Bulletin
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January 2013 Bar Bulletin

Open Courts vs. Individual Privacy

By Rory O'Sullivan


It is more difficult to close a court hearing or seal a court record in Washington than in almost any other state. The open administration of justice is an important virtue of our society recognized by our state constitution; however, the openness of court proceedings should be weighed against the privacy rights of the individuals involved in those proceedings, a right also recognized by the state constitution.

The Washington Supreme Court should take the opportunity presented by the pending petition for review in Hundtofte v. Encarnacion to articulate an appropriate balance between the openness of the court system and the privacy right of the individuals involved.

One of the seminal cases on the standard for closing a hearing is Seattle Times Co. v. Ishikawa, decided in 1982. The state Supreme Court articulated a five-factor test for determining when a litigant can exclude the public from a hearing: 1) the proponent of closure must demonstrate the need for closure; 2) anyone present when the motion for closure is made must be given the opportunity to object; 3) the proposed method for curtailing access must be the least restrictive method; 4) the court must weigh the competing interests of the litigant requesting closure and the public; and 5) the order must be no broader in its application or duration than necessary to serve its purpose. These factors are known as the Ishikawa factors.

In 2004, in Dreiling v. Jain, the Supreme Court extended the use of the Ishikawa factors to determinations regarding whether documents filed in support of dispositive motions could be sealed. The reason for limiting closure hearings and the sealing of documents is the Court's belief in the public's right to understand why and how a case was decided or, put another way, the public's right to observe a court's administration of justice.

Last year, in Hundtofte v. Encarna­cion, the Court of Appeals (Division I) extended the Supreme Court's reasoning in Ishikawa beyond the question of whether a judge should close a hearing or seal potentially dispositive documents, to the question of whether a litigant could redact his name from the Superior Court Management Infor­ma­tion Systems (SCOMIS) online index.

Encarnacion was a tenant in a property that changed owners. The new owner attempted to evict Encarnacion even though he had 10 months remaining on his lease and had not breached any condition of his lease. After the eviction proceeding was filed, the new property owner realized his mistake and agreed to a settlement in which he paid Encarnacion three months' rent in exchange for Encarnacion moving out early. The owner also agreed to give Encarnacion a favorable rental reference.

Unfortunately for Encarnacion, the damage had already been done. Because Encarnacion was listed as the defendant in an unlawful detainer action, when Encarnacion tried to find a new place to live, he was screened out by many prospective landlords. To remedy the effect of the improper eviction filing, Encarnacion requested that the court redact his full name from the SCOMIS index and replace his name with his initials.

Encarnacion demonstrated to the trial court that the action had been filed improperly and that he was unable to obtain housing because of the eviction record. The trial court granted Encarnacion's request to redact his name from the SCOMIS index. Division I reversed, ruling that redaction, like closure of a court hearing or the sealing of a case file, could only occur under "exceptional circumstances."

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