In re the Marriage of R.E.
In re the Marriage of R.E.
Opinion of the Court
¶1 In 2002, parties to an acrimonious dissolution agreed to seal the court file in order to protect
¶2 R.E. also appeals denial of a protection order and imposition of sanctions. We remand for application of the correct standard of review on a motion for revision.
BACKGROUND
¶3 R.E. and S.E.
¶4 In 2002, after entry of the final decree, the parties agreed that the dissolution file should be sealed in its entirety. They submitted letters from two of J.E.’s mental health providers, each of whom recommended that court records pertaining to custody and visitation issues be sealed to protect J.E.’s privacy and well-being. The court sealed the entire file in a one paragraph order, without making findings.
¶5 In 2006, R.E. filed a motion to unseal the file. In opposition to the motion, S.E. relied upon the original recommendations from treatment providers, as well as a statement from J.E.’s current therapist:
I have been informed that these court files include records relating to psychiatric and mental health treatment [J.E.] has*398 received, prepared by his former treatment providers. I feel that it would be contrary to [J.E.]’s interest and disruptive to the therapeutic process to have prior or current mental health records and reports, or documents referencing those reports, accessible to the general public.[2]
After reviewing all eight volumes of the file, the court commissioner unsealed the file except for 39 documents, which he found should remain sealed to protect the privacy of both children:
Based on the recommendations of [the three treatment providers], the court finds it would be harmful to the mental health and current therapeutic treatment of [J.E.] to unseal the reports, statements, discovery and pleadings referring to or containing exhibits dealing with the aforementioned.
The court finds that it would be equally detrimental to [A.E.] for the unsealing of reports, statements, discovery and pleadings referring to or containing exhibits dealing with himself or his sibling.
The court finds that there are compelling privacy concerns for [J.E.] and [A.E.] that outweigh the public’s interest in this information.[3]
Additionally, the court ordered any future documents “concerning” either child to be filed under seal.
¶6 In separate proceedings, R.E. sought a domestic violence protection order. The court found no evidence of domestic violence, denied the order, and imposed Civil Rule (CR) 11 sanctions for bad faith and intransigence.
Order Sealing Court Records
¶7 The constitution, three cases, two court rules, and a statute inform the analysis here. Article I, section 10 of our state constitution guarantees the open administration of justice. To the extent documents in court files are intended to inform a judicial decision, they are presumed open.
¶8 In Rufer v. Abbott Laboratories
¶9 GR 15 is the court rule setting the procedure for sealing court files and “applies to all court records.” GR 15(a). In 2006, after the decisions in Rufer and Dreiling, GR 15 was substantially amended.
¶10 GR 15 also provides that “Sufficient privacy or safety concerns that may be weighed against the public interest include findings that . . . [t]he sealing ... is permitted by statute.”
Whenever the court before whom any matter arising under this chapter is pending, deems publication of any matter before the court contrary to public policy or injurious to the interests of children or to the public morals, the court may by order close the files or any part thereof in the matter and make such other orders to protect the privacy of the parties as is necessary.[13]
S.E. contends this statute gives the court discretion to seal all documents related to the children.
¶11 The statute must be read in harmony with the constitution and the court rules.
¶12 GR 22, the second relevant court rule, is specific to records in family law cases. Under GR 22, public access to records is to be facilitated “provided that such access will not present an unreasonable invasion of per
¶13 GR 22 simply states the competing interests to be weighed: privacy versus the public right to the open administration of justice. As with GR 15, records may be sealed only when an interest is sufficiently compelling to override the public’s right to the open administration of justice.
¶14 Essentially S.E. argues that we should adopt a different standard for sealing records in family law cases. Certainly these cases can present difficult privacy issues. Family law litigants have no choice of forum because their remedies can come only from the courts. Private information is unavoidably disclosed. Financial records, health records, counseling reports, evaluations by various professionals, the history of family dynamics — all manner of personal information is necessarily relevant to decisions about the marital estate and the minor children. All too often, rancor taints the parties’ judgment, and the file becomes an unwieldy repository of untested and unsavory allegations. Indeed, the file here is larger and more acrimonious than most. It is littered with accusations and counteraccusations and contains highly personal financial and health information.
¶16 We turn to the specifics of the 2006 order, in which the court revisited and revised the original sealing order. The first issue is the standard for unsealing court records. GR 15(e)(3) now provides that “[a] sealed court record in a civil case shall be ordered unsealed only upon stipulation ... or upon motion and written notice to all parties and proof that identified compelling circumstances for continued sealing no longer exist.” S.E. argues that R. E. failed to satisfy the rule by showing the original reason for sealing the file no longer exists, and the court below should not have granted any part of her motion to unseal.
¶17 Applying the current rule to an order entered before its adoption presents several difficulties. The unsealing provision of the current rule clearly contemplates that the sealing order was entered in compliance with the current rule. But former GR 15 did not require findings, did not address redaction, and did not prohibit sealing based only
¶18 The 2002 sealing order reflects these differences. The order does not state its basis, though the court interlineated “agreed” in the caption.
¶19 And applying the current standard for unsealing in these circumstances would run afoul of Rufer: “[A]ny records that were filed with the court in anticipation of a court decision . . . should be sealed or continue to be sealed only when the court determines . . . that there is a compelling interest which overrides the public’s right to the open administration of justice.”
¶20 We conclude that when a party moves to unseal records that were sealed under the former rule and the original sealing order does not conform to the current rule, it is not appropriate to apply the current standard for unsealing. Rather, the proponent of unsealing should be permitted to show that under the standards of the new rule, the original order was unjustified or overbroad.
¶21 The commissioner who entered the 2006 sealing order took exactly this approach. He made a de novo review of the entire, voluminous file, found “it would be harmful to the mental health and current therapeutic treatment of
¶22 The remaining questions are whether the court sealed too much or too little. The chief basis for the sealing order was the elder child’s health and treatment. We agree that this is an overriding privacy interest. S.E. has pointed to no record related to J.E.’s health and treatment that was not sealed. Thus, the court did not seal too little.
¶23 However, despite its broad discretion in these matters, the court did seal too much. The order goes too far in four respects.
¶24 First, the findings state that it would be harmful to unseal reports, statements, discovery, exhibits and pleadings referring to J.E.’s “mental health and current therapeutic treatment.”
¶25 Second, the court found that unsealing documents related to either child “would be equally detrimental to [the younger child],”
¶26 Third, there is nothing in the record to suggest that redaction was considered. GR 15(c)(3) requires that records not be sealed in their entirety “when redaction will adequately resolve the issues before the court.” We recognize that redaction can present a considerable burden upon the court, particularly given a file of this size. But judges may require the parties to propose the redactions and may reject
¶27 Fourth, the order requires that all future documents referring to either child be filed under seal, without regard to whether the reference to the child is incidental or whether the document relates to the stated privacy concern.
¶28 S.E. defends these aspects of the order on grounds of the burden upon the court presented by any other approach. For example, as to future filings, he asserts that the main subject of all filings is the children, and the order allows the court to “avoid unnecessary work while ensuring the children’s privacy.”
¶29 In these aspects the order does not comply with GR 15. We therefore remand to the court commissioner for further review in light of the above discussion. If the findings did not fully reflect the court’s intent, the court may amend the findings on remand.
Protection Order
¶30 In a separate proceeding, a different commissioner denied R.E.’s motion for a protection order. She later filed a motion for revision, which was denied. She contends the judge improperly reviewed the commissioner’s order for substantial evidence and improperly imposed sanctions for intransigence.
¶31 S.E. contends that de novo review was not required because R.E. was acting pro se and was sworn before she made her argument. S.E. relies upon In re Mar
¶32 Here, the record strongly suggests the court applied a substantial evidence standard of review: “[T]his court finds that there was sufficient evidence for the [commissioner’s] ruling. . . . [T]here certainly was sufficient evidence for the commissioner’s ruling as well as for this court’s ruling also.”
¶33 As to the CR 11 sanctions, the record supports the court’s written finding of bad faith and intransigence. If the court makes the same ruling on remand, it may impose the same sanctions.
¶34 Affirmed in part and remanded. No attorney fees are awarded.
We identify the parties by their initials or their relationship to the children in order to preserve the privacy interests at stake. The briefs were filed under seal and shall remain so.
2 Clerk’s Papers at 401.
3 Clerk’s Papers at 702.
Clerk’s Papers at 705. The court also sealed additional documents containing financial information. This part of the order is not challenged. See also General Rule (GR) 22(f) (governing sealed financial information).
Rufer v. Abbott Labs., 154 Wn.2d 530, 549, 114 P.3d 1182 (2005).
Dreiling v. Jain, 151 Wn.2d 900, 909, 93 P.3d 861 (2004).
154 Wn.2d 530, 114 P.3d 1182 (2005).
151 Wn.2d 900, 93 P.3d 861 (2004).
97 Wn.2d 30, 37, 640 P.2d 716 (1982); see also Dreiling, 151 Wn.2d at 913-15. On appeal, review of the applicable standard is de novo. When the proper standard has been applied, we review a decision to seal or unseal records for abuse of discretion. Rufer, 154 Wn.2d at 540. A court abuses its discretion if its decision is manifestly unreasonable or based on untenable grounds. State v. C.J., 148 Wn.2d 672, 686, 63 P.3d 765 (2003).
See 1 Washington Court Rules Annotated GR 15 editorial cmt. at 25 (West 2d ed. 2006).
GR 15(c)(2).
GR 15(c)(2)(A).
13 The statute has been cited but never interpreted. See, e.g., Monroe v. Tielsch, 84 Wn.2d 217, 230 n.6, 525 P.2d 250 (1974).
Christensen v. Ellsworth, 162 Wn.2d 365, 373, 173 P.3d 228 (2007) (“Statutory provisions and rules should be harmonized whenever possible.”)
GR 22(a).
GR 22(b)(4).
Br. of Resp’t at 39.
Rufer, 154 Wn.2d at 549; GR 15(c)(2)(F) (“[a]nother identified compelling circumstance exists that requires the sealing or redaction”).
We are aware of only one jurisdiction that seals family law records under a standard different from that for other civil cases. See N.Y. Dom. Rel. Law § 235(1) (only parties may take copies of documents or testimony in matrimonial cases, except by order of the court). The overwhelming majority of jurisdictions apply a single standard, even where the state’s constitution lacks our constitution’s guaranteed right of access to the public. See, e.g., In re Marriage of Burkle, 135 Cal. App. 4th 1045, 1060-61, 37 Cal. Rptr. 3d 805 (Cal. App. 2d Dist. 2006) (holding that right of access to court records in dissolution proceedings is no different from right in ordinary civil proceedings).
Alternatively, S.E. contends R. E. is bound by her agreement to seal the file in 2002. lb accept this argument, however, is to ignore the presumptive openness of court records.
Current GR 15(c)(2) provides that “[a]greement of the parties alone does not constitute a sufficient basis for the sealing or redaction of court records.”
The therapists’ recommendations to seal custody and visitation records were before the court, but the order stated only that, by agreement, the dissolution files “shall be sealed.” Clerk’s Papers at 345.
Rufer, 154 Wn.2d at 549 (emphasis added).
Clerk’s Papers at 702.
Clerk’s Papers at 702.
For example, documents 53, 73, and 77 are third party declarations of lay people describing the father’s and mother’s parenting skills.
Clerk’s Papers at 702.
Br. of Resp’t at 42.
To assist the court on remand, we observe that the following documents appear to be unrelated to J.E.’s health and treatment: subnumbers 52, 67, 68, 71, 74, 77, 80F, 80K, 97, 192, 208 and 213, and the following records were properly sealed: subnumbers 49, 50, 80D, 80L, 99, 102, and 148A.
130 Wn. App. 381, 122 P.3d 929 (2005).
120 Wn. App. 638, 86 P3d 801 (2004).
RCW 2.24.050; State v. Ramer, 151 Wn.2d 106, 113, 86 P.3d 132 (2004). We review the superior court’s ruling. Ramer, 151 Wn.2d at 113.
Report of Proceedings (Aug. 23, 2006) at 55.
Reference
- Full Case Name
- In the Matter of the Marriage of R.E., and S.E.
- Cited By
- 4 cases
- Status
- Published