Hundtofte v. Encarnación

¶[1 Ignacio Encarnación and Norma Karla Farias were sued for unlawful detainer even though they had a valid lease and did nothing to warrant eviction. The case settled. They moved to amend the Superior Court Management Information System (SCOMIS) indices to replace their full names with their initials in order to hide the fact that they were defendants to the unlawful detainer action. Encarnación and Farias argued that even though the unlawful detainer action was meritless, they could not obtain sufficient rental housing after prospective landlords learned that they had an unlawful detainer action filed against them. The superior court granted their motion and ordered that the indices be changed to show only their initials. The King County Superior Court Office of Judicial Administration (the clerk)¹ objected and appealed the order. The Court of Appeals reversed. Although we sympathize with Encarnación and Farias, and other renters in similar situations, we affirm the Court of Appeals. The public’s interest in the open administration of justice prohibits the redaction of the indices in this case.

Owens, J.

FACTS

¶2 Encarnación and Farias moved into their Burien, Washington, apartment in December 2007. They renewed their lease twice, most recently in July 2009. That lease was for one year. One month later, Aaron Hundtofte and Kent Alexander purchased the apartment building and asked Encarnación and Farias to sign a new month-to-month lease. Encarnación and Farias refused, citing the lease for one year that they signed in July 2009. Hundtofte and Alexander sued Encarnación and Farias for unlawful detainer. Encarnación and Farias refused to leave and continued to tender rent. On November 12, 2009, the parties settled the dispute. Encarnación and Farias agreed to move out before December. In exchange, Hundtofte and Alexander agreed to return rental payments for the months of September, October, and November and to pay court costs and attorney fees. Hundtofte and Alexander also agreed to provide a favorable reference for them in the future.

¶3 Because of the unlawful detainer action, Encarnación and Farias found it difficult to find a new apartment. They eventually found a property that they liked and paid $80 for a background check as a part of their application, but the property manager turned them away, citing company policy to reject any applicant with an unlawful detainer record, regardless of the outcome. The favorable reference made no difference to the prospective landlord. Eventually, Encarnación and Farias found housing for at least six months at a home in Pierce County. But they worry that this home may be subject to foreclosure in the near future, and they wish to find housing closer to their old apartment in Burien. They fear that prospective landlords will be able to discover the previous unlawful detainer action by performing a background check that includes a search of court records.

¶4 Encarnación and Farias filed a motion to have their names redacted and replaced with their initials in the SCOMIS indices. The clerk opposed the motion, arguing that altering the indices was tantamount to destroying the records. The clerk argued that under GR 15(h)(1), a court may not order that a court record be destroyed unless authorized by statute.

¶5 The superior court granted the motion. The court found that landlords commonly deny housing to prospective tenants who have been named in unlawful detainers. The court found that this posed a serious and imminent threat to Encarnación and Farias’ compelling interest in obtaining future rental housing. The court concluded that Encarnación and Farias “were not culpable and did nothing improper” to warrant the unlawful detainer action and that their privacy interest outweighed the public’s interest in access to the court records. Clerk’s Papers (CP) at 730. The court limited the redaction to seven years because the Fair Credit Reporting Act, chapter 19.182 RCW, prevents consumer reporting agencies — like tenant screening firms— from reporting unlawful detainer actions that are more than seven years old. See RCW 19.182.040(l)(b).

¶6 The clerk appealed, and the Court of Appeals reversed, finding that the public’s interest in the open administration of justice was too great in this case to allow for redaction. Hundtofte v. Encarnación, 169 Wn. App. 498, 521-22, 280 P.3d 513 (2012). Encarnación and Farias petitioned this court, and we granted review. Hundtofte v. Encarnación, 176 Wn.2d 1019, 297 P.3d 707 (2013).

ISSUE

¶7 Did the trial court err when it ordered that the SCOMIS indices be redacted to obscure the fact that the petitioners were defendants in an unlawful detainer action?

ANALYSIS

I. The SCOMIS Indices Are a Court Record

f 8 As a threshold matter, we note that the SCOMIS indices are a court record. GR 31 defines a “court record” as including “[a]ny index, calendar, docket, register of actions, official record of the proceedings ... and any information in a case management system created or prepared by the court that is related to a judicial proceeding.” GR 31(c)(4)(ii). GR 15 governs the destruction, sealing, and redaction of court records, and it “applies to all court records, regardless of the physical form of the court record, the method of recording the court record, or the method of storage of the court record.” GR 15(a). The SCOMIS indices are court records because they are both an “index” and “information in a case management system created or prepared by the court that is related to a judicial proceeding.” GR 31(c)(4)(ii). A motion to redact the indices must be evaluated under GR 15. GR 15(c). The superior court properly treated the motion to redact the indices as a motion to redact a court record.

II. Standard of Review

¶9 An order to redact a court record is treated as an order to seal. GR 15(b)(4). We review a trial court’s decision to seal a court record for abuse of discretion. Rufer v. Abbott Labs., 154 Wn.2d 530, 540, 114 P.3d 1182 (2005). A trial court abuses its discretion when its “ ‘decision is manifestly unreasonable, or is exercised on untenable grounds, or for untenable reasons.’ ” State v. Rohrich, 149 Wn.2d 647, 654, 71 P.3d 638 (2003) (quoting State v. Blackwell, 120 Wn.2d 822, 830, 845 P.2d 1017 (1993)). “A decision is based ‘on untenable grounds’ or made ‘for untenable reasons’ if it rests on facts unsupported in the record or was reached by applying the wrong legal standard.” Id. (quoting State v. Rundquist, 79 Wn. App. 786, 793, 905 P.2d 922 (1995)).

III. The Open Administration of Justice Is a Vital Constitutional Safeguard, and This Court Will Not Allow Closure Except in the Most Unusual of Circumstances

¶10 Article I, section 10 of our constitution states that “[jlustice in all cases shall be administered openly, and without unnecessary delay.” Const, art. I, § 10. The openness of our courts “is of utmost public importance” and helps “foster the public’s understanding and trust in our judicial system.” Dreiling v. Jain, 151 Wn.2d 900, 903, 93 P.3d 861 (2004). Thus, we must start with the presumption of openness when determining whether a court record may be sealed from the public. Rufer, 154 Wn.2d at 540. Any exception to this “vital constitutional safeguard” is appropriate only in the most unusual of circumstances. In re Det. of D.F.F., 172 Wn.2d 37, 41, 256 P.3d 357 (2011) (plurality opinion). The party moving to override the presumption of openness and seal court records usually has the burden of proving the need to do so. Rufer, 154 Wn.2d at 540.

fll Under the General Rules, a court record may be sealed if a court “enters written findings that the specific sealing or redaction is justified by identified compelling privacy or safety concerns that outweigh the public interest in access to the court record.” GR 15(c)(2). “Agreement of the parties alone does not constitute a sufficient basis for the sealing or redaction of court records.” Id. But GR 15 is not, by itself, sufficient — the rule must be harmonized with article I, section 10 of our constitution. State v. Waldon, 148 Wn. App. 952, 966-67, 202 P.3d 325 (2009). Thus, a court must analyze a motion to redact using both GR 15 and the five-step framework for evaluating a closure outlined in Seattle Times Co. v. Ishikawa, 97 Wn.2d 30, 37-39, 640 P.2d 716 (1982). Waldon, 148 Wn. App. at 967.

¶12 First, the party seeking to seal court records “must make some showing of the need therefor.” Ishikawa, 97 Wn.2d at 37. The party “should state the interests or rights which give rise to that need as specifically as possible without endangering those interests.” Id. If the sealing is meant to protect a right other than the right to a fair trial, the proponent must show a “ ‘serious and imminent threat to some other important interest.’ ” Id.

f 13 Second, “ ‘[a]nyone present when the closure [and/or sealing] motion is made must be given an opportunity to object.’ ” Id. at 38 (second alteration in original) (quoting Federated Publ’ns, Inc. v. Kurtz, 94 Wn.2d 51, 62, 615 P.2d 440 (1980)). Third, the court and the parties must “analyze whether the requested method for curtailing access would be both the least restrictive means available and effective in protecting the interests threatened.” Id. Fourth, “ ‘[t]he court must weigh the competing interests of the [party seeking the redaction] and the public’,” and it must consider alternative methods to protect the interest. Id. (quoting Kurtz, 94 Wn.2d at 64). It must articulate its consideration in specific findings and conclusions. Id. Finally, the order must be no broader than necessary to protect the interest. Id. at 39. “If the order involves sealing of records, it shall apply for a specific time period with a burden on the proponent to come before the court at a time specified to justify continued sealing.” Id. A court must use the Ishikawa steps and evaluate a motion to seal or redact court records on a case-by-case basis. Rufer, 154 Wn.2d at 549-50.

IV. The Trial Court Erred When It Ordered Redaction in This Case

¶14 In this case, the trial court abused its discretion because it applied an improper legal standard and because its findings are not supported in the record. The interest at stake — when properly articulated — is not as compelling as the one evaluated by the trial court, and Encarnación and Farias have not shown a serious and imminent threat to their interest. The court erred in concluding that their interest outweighed the public’s interest in the open administration of justice. Keeping court records open is a vital constitutional safeguard. While we do not overlook the hardships that the petitioners and other renters in similar circumstances face, we must fulfill our independent obligation to protect the open administration of justice.

¶15 The privacy interest at stake in this case is not so compelling as to warrant redaction. The petitioners and the trial court broadly articulated the privacy interest as the “need to obtain rental housing for [Encarnación and Farias] and their three young children.” CP at 729-30. But the interests and rights justifying redaction must be articulated “as specifically as possible.” Ishikawa, 97 Wn.2d at 37. Here, the petitioners found rental housing for their family, but they would prefer housing closer to Burien. Encarnación and Farias worry that their commute is too long and that their new property may face foreclosure. Because one property in Burien rejected them based on the court records, they fear that they will be unable to obtain future housing in their preferred location. Thus, the more specific articulation of their interest is the interest in finding future rental housing in a desired location. This is not as compelling an interest as the one articulated by the trial court. Without more, it is not enough to override the constitutional presumption of openness.

¶16 Because we articulate the proper interest at stake in this case, the dissent accuses us of “rebalancing] the facts from our ivory tower” and improperly applying the abuse of discretion standard of review. Dissent at 21. The dissent mischaracterizes our analysis for the sake of rhetoric. A trial court abuses its discretion when it applies an incorrect legal standard, and here the trial court did just that when it articulated the interest at stake. Rather than define the interest “as specifically as possible,” as Ishikawa commands, 97 Wn.2d at 37, the trial court chose to articulate the need for housing very broadly. This is not a rebalancing of the facts, but rather a faithful application of the proper legal standard.

¶17 Encarnación and Farias have also failed to show a serious and imminent threat to their interest. We agree that housing is a very important interest, and we agree with the trial court that landlords sometimes deny rental housing to prospective tenants who were named in unlawful detainers.² But Encarnación and Farias must still show a serious and imminent threat to their interest. Id. They have not made that showing for two reasons. First, there is no evidence of an imminent rejection based on the unlawful detainer action. Encarnación and Farias do not have any applications pending — they merely cite one past rejection based on the action and speculate about their future inability to find a suitable home. The threat of rejection is not imminent. Second, in future applications, Encarnación and Farias can explain that the unlawful detainer was wrongfully filed and can provide a favorable reference from their previous landlords. Again, the record shows only one failed attempt to secure housing. While one property turned them away without considering their defense or checking their reference, it does not follow that every property will. Importantly, they found housing elsewhere — apparently on their second attempt — thus, it is not impossible for them to obtain housing. Pure speculation about the future inability to obtain housing in a desired location is not a serious and imminent threat to a compelling interest.

¶18 Here too, the dissent mischaracterizes our review. As stated above, a trial court abuses its discretion if its conclusions are not supported in the record. The record in this case does not reflect a serious and imminent threat to Encarnación and Farias’ housing interest. Rather, it shows one attempt to secure rental housing at a preferred location. The trial court and the dissent mistakenly assume that this one rejection is indicative of the entire rental market in Washington, when there is no such evidence in the record. The record indicates only that at least one landlord has a blanket policy of not renting to tenants who have been named in unlawful detainer actions. The only other evidence Encarnación and Farias presented regarding their inability to secure housing were their own declarations regarding their general fears about being named in the SCOMIS records. CP at 43 (Decl. of Encarnación) (“I do not believe that anyone else will rent to us without [sic] the court record appearing as if we were evicted from our apartment.”), 95 (Decl. of Farias) (“We thought that no one else would rent to us when they saw the case that was filed against us.”). But the record also shows that Encarnación and Farias were able to find housing on their second attempt, despite the SCOMIS records. The trial court abused its discretion when it made the unsupported finding of a serious and imminent threat to their interest.

¶19 The trial court also erred when it found that the petitioners’ interest in this case outweighed the public’s interest in the open administration of justice. Our open courts jurisprudence has always stressed the importance of transparency and access to court records. That is why we generally place the burden on the party who moves to seal court records and why a court may order a sealing only in the most unusual of circumstances. Rufer, 154 Wn.2d at 540; D.F.F., 172 Wn.2d at 41. These are not the most unusual of circumstances. The parties settled their dispute, as do many other parties in unlawful detainer actions. Property owners in this state have an interest in being able to discover unlawful detainer actions that settle, and the public has a general interest in the open administration of justice. Altering the indices to obscure the fact that an action was filed will not help to “foster the public’s understanding and trust in our judicial system.” Dreiling, 151 Wn.2d at 903. We must ensure that justice is administered openly. The trial court erred when it found that the interest asserted in this case outweighed the public’s interest in openness.

CONCLUSION

¶20 The open administration of justice is a vital constitutional safeguard that may not be overridden to seal or redact court records except in the most unusual of circumstances. The circumstances of this case do not warrant redaction of the SCOMIS indices. The petitioners have not shown a serious and imminent threat to a compelling interest, and the interest at stake does not outweigh the public’s interest in the open administration of justice. We affirm the Court of Appeals.

C. Johnson and Wiggins, JJ., and J.M. Johnson, J. Pro Tem., concur.

1 In all other counties, this is known as the clerk’s office. For the sake of clarity, we refer to this office as “the clerk.”

2 Despite our conclusions in this case, we recognize the problems innocent renters face when they are named as defendants to unlawful detainer actions. We note that petitioners and amici could seek a statutory remedy for similarly situated renters.