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Sunday, March 05, 2006

Sealing Court Records

Please note that this is petit trial information and not grand jury information which is sealed under different statutes. Also this is Washington state and the article is limited to one county. Under our system of government, each state has its own rules of procedure, statutes, and court of last resort decisions. I am posting this primarily to allow you to see the type of work that is involved with good investigative journalism.

Mike Fancher
Our battle against secrecy in county's legal system

Imagine trying to find a needle in a haystack if you don't even know where the haystack is.

That challenge faced Ken Armstrong and Justin Mayo as they undertook today's Seattle Times special report, "Your Courts, Their Secrets." It is groundbreaking work that has already resulted in important changes within the King County Superior Court system. Investigative reporter Armstrong conceived the story about two years ago because he routinely heard reporters complain they couldn't get access to crucial information in court files that had been sealed. "It was a constant source of frustration for reporters here," he said.

But no one in the court system could say how many cases involved sealed records. There was no system to determine which cases had been sealed, much less to assess whether they had been sealed appropriately.

Mayo, an expert in computer-assisted reporting, developed a method of searching court databases for indicators of sealed files. The state Administrative Office of the Courts helped run computer searches of electronic court dockets for civil lawsuits, not including other types of cases such as divorces, adoptions and probate.

"It was kind of a catchall, but the state courts were great. They were very cooperative," Mayo said.

Many hours of overnight computer runs produced 10,337 cases going back to 1990. Think of those as the haystack.

Next came looking for needles, which was tedious and meticulous work. Armstrong spent months probing computer records and shelved paper files at the King County Superior Court.

The clerk's office had sealed almost 300 cases by mistake, errors the office has since corrected. Beyond that, it was clear that judges in the county have improperly sealed court files, often not even indicating why.

Our investigation found 420 civil cases since 1990 that were sealed entirely. "I never anticipated finding hundreds of cases that had been sealed completely," Armstrong said. "To seal an entire case is really an extraordinary action."

"It was completely unexpected," added James Neff, Times investigations editor.

In addition to the 420 cases where the whole file was sealed, the reporters also discovered more than a thousand that were sealed in part.

After finding the sealed cases, Armstrong and Mayo pulled the judges' sealing orders to determine whether the cases had been sealed properly. Then, with the help of Steve Miletich, a third reporter assigned to the project, they researched hundreds of cases, starting with little more than the names of the parties involved.

No one questions that there are legitimate reasons to sometimes seal parts of a judicial record, but the standard should be high. The Washington Constitution says, "Justice in all cases shall be administered openly, and without unnecessary delay."

The Washington Supreme Court has said since the 1980s that records should be sealed rarely, and only when a compelling reason exists.

In Dreiling v. Jain, a 9-0 landmark decision in 2004, the Supreme Court reaffirmed that principle while ordering records opened in a civil case. Justice Tom Chambers wrote the opinion, saying: "The open operation of our courts is of utmost public importance. Justice must be conducted openly to foster the public's understanding and trust in our judicial system and to give judges the check of public scrutiny. Secrecy fosters mistrust."

Neff puts it this way: "Judges shouldn't be able to erase history."

The high standard required by the Constitution and Supreme Court has frequently been ignored in King County Superior Court. As a result of our investigation, court leaders already are taking steps to rectify the problem. They even attempted to facilitate opening the cases that were sealed entirely, but other judges rejected that plan. Their resistance means The Times must formally pursue the records in court, one case at a time, which we will do.

"The court could have taken it upon itself to fix a mistake," Armstrong said. "Instead, they put the burden on us. Ironically, they cited the same rules they ignored in sealing all of these files in the first place."

We'll be in court tomorrow to start a long-term effort to shed light on these cases, fighting legal secrecy and protecting your right to know. We expect our efforts will lead to important stories throughout the year involving schools, hospitals, government agencies, medical malpractice and other areas of legitimate public interest.

"If things are going wrong in any of those areas, the public would like to know," Armstrong said. "The only way we can know is by opening them and reading the files.

"It's not a private dispute when it's being handled in a public courtroom," he added. "The court leadership wants more openness. Whether that is shared universally among the judges, we'll see."

Inside The Times appears in the Sunday Seattle Times.
Copyright © 2006 The Seattle Times Company