Seattle Times Co. v. Eberharter , 105 Wash. 2d 144 ( 1986 )

Andersen, J.

(concurring in the result) — This case deals with the right of access to public records. The news media is not here seeking favored treatment because the rights of the media in this regard are coextensive with the rights of the public.³ Thus, it must be understood that when the rights of the news media are infringed upon in this regard, so, too, are the rights of the public infringed upon.

The whole matter of access to public records once seemed so simple. Almost two decades ago, the concept was clearly and succinctly expressed as follows:

1. Free access to public records is of paramount importance if the public is to be fully informed, and the bench, bar and press have an equal interest in and responsibility to see that this access is maintained.

2. Except where confidentiality is specifically provided for in statutes, all records which must be maintained by law are clearly open to the public.

These words are from the Bench-Bar-Press Statement of Principles and Guidelines of 1966, adopted by the then Bench-Bar-Press Committee of Washington. Not a radical organization, to be sure, this committee's membership consisted of representatives of the following:

Washington State Supreme Court

The Federal Judiciary in Washington

Superior Court Judges' Association

Washington State Magistrates' Association

Washington State Bar Association

Allied Daily Newspapers of Washington

Washington Newspaper Publishers Association

Washington State Association of Broadcasters

The Associated Press

United Press-International

University of Washington School of Communications

Washington State Prosecuting Attorneys' Association

Washington Association of Sheriffs and Chiefs of Police

Washington State Board of Prison Terms and Paroles

Today, unfortunately, court orders sealing public records appear to be proliferating.⁴ So far as press freedoms are concerned, this is a disturbing trend.

It is a basic premise of our democratic form of government that while every well informed, rational adult has the capacity to form his or her own opinion, no one individual has the time or resources to gather all of the information needed in order to form intelligent opinions regarding political, social and economic affairs.⁵ Thus, in contemporary society, the news media's most important contribution may well be its news gathering function.⁶ That being so, press freedoms connected with the gathering of information should be expanded, not contracted.

The majority's broadening of the holding in Cowles Pub'g Co. v. Murphy, 96 Wn.2d 584, 637 P.2d 966 (1981) to now require the judge who orders a record sealed to also file the order, transcript and written findings of fact and conclusions of law immediately after the decision to seal is made, is a significant step in the right direction. Had such a procedure been followed in the present case, the Seattle Times reporters would doubtless not have experienced the runaround in the county superior court clerk's office that apparently occurred. Although the majority predicates its ruling on a common law standard, rather than a constitutional one, the resultant protection of press freedoms is not greatly dissimilar.⁷

I would go further, however, and expand the Cowles "presumption of openness of judicial records" principle to specifically declare that this presumption is a very strong presumption and thus entitled to significant weight in the decisionmaking process.⁸ I would hold, as has the Sixth Circuit, that only the most compelling reasons can justify the nondisclosure of judicial records.⁹

As to the case before us, however, it is hard for me to envision a more compelling reason for protecting informants than here where the informants are prostitutes and the person they are trying to assist the police to find is at large, and an alleged serial killer of perhaps two dozen or more young women engaged in prostitution or otherwise involved in the prostitution scene. Thus, under either the common law test, or the "balancing of interests" constitutional test advocated by the Seattle Times, I agree that the Superior Court's order was appropriate insofar as it protected the identities of the two informants.

It is clear from the record before us that the interest of the Seattle Times is not in obtaining and publishing the informants' names, but in taking a stand against what it considers to be the infringement of its rights and the public's rights of access to public records. As has been eloquently expressed:

An informed public depends on accurate and effective reporting by the news media. No individual can obtain for himself the information needed for the intelligent discharge of his political responsibilities. For most citizens the prospect of personal familiarity with newsworthy events is hopelessly unrealistic. In seeking out the news the press therefore acts as an agent of the public at large. It is the means by which the people receive that free flow of information and ideas essential to intelligent self-government. By enabling the public to assert meaningful control over the political process, the press performs a crucial function in effecting the societal purpose of the First Amendment.[¹⁰]

Utter and Brachtenbach, JJ., concur with Andersen, J.

3 See Pell v. Procunier, 417 U.S. 817, 833-34, 41 L. Ed. 2d 495, 94 S. Ct. 2800 (1974); Red Lion Broadcasting Co. v. FCC, 395 U.S. 367, 390, 23 L. Ed. 2d 371, 89 S. Ct. 1794 (1969).

4 See generally CR 26(a); Developments Under the Freedom of Information Act — 1982, 1983 Duke L.J. 390; Developments Under the Freedom of Information Act — 1983, 1984 Duke L.J. 347.

5 See Red Lion Broadcasting Co. v. FCC, supra.

6 See Fritz v. Gorton, 83 Wn.2d 275, 296-97, 517 P.2d 911, appeal dismissed, 417 U.S. 902, 41 L. Ed. 2d 208, 94 S. Ct. 2596 (1974).

7 Cf. Federated Publications, Inc. v. Kurtz, 94 Wn.2d 51, 62-63, 615 P.2d 440 (1980); Seattle Times Co. v. Ishikawa, 97 Wn.2d 30, 37-39, 640 P.2d 716 (1982).

8 See In re National Broadcasting Co. (United States v. Myers), 635 F.2d 945, 952 (2d Cir. 1980); United States v. Criden, 648 F.2d 814, 823 (3d Cir. 1981); In re National Broadcasting Co. (United States v. Jenrette), 653 F.2d 609, 613 (D.C. Cir. 1981); Wilson v. American Motors Corp., 759 F.2d 1568, 1570-71 (11th Cir. 1985); In re Knoxville News-Sentinel Co., 723 F.2d 470, 476 (6th Cir. 1983); United States v. Edwards, 672 F.2d 1289, 1294 (7th Cir. 1982); United States v. Torres, 602 F. Supp. 1458, 1464-65 (N.D. Ill.), cert. denied, —U.S.—, 85 L. Ed. 2d 150, 105 S. Ct. 1853 (1985); United States v. Mouzin, 559 F. Supp. 463, 465-66 (C.D. Cal. 1983); In re WFMJ Broadcasting Co., 566 F. Supp. 1036, 1040-41 (N.D. Ohio 1983); United States v. Dean, 527 F. Supp. 413, 415 (S.D. Ga. 1981), modified on other grounds, 666 F.2d 174 (5th Cir. 1982).

9 In re Knoxville News-Sentinel Co., 723 F.2d at 476.

10 Saxbe v. Washington Post Co., 417 U.S. 843, 863, 41 L. Ed. 2d 514, 94 S. Ct. 2811 (1974) (Powell, J., dissenting).