In a substantial narrowing of the public's ability to review court files, the Washington Supreme Court recently held there is no constitutional right of access to any case record unless and until the record becomes "relevant to a decision actually made by the court." Bennett v. Smith Bunday Berman Brittson, PS, -- Wn.  --, 291 P.3d 886 (Jan. 10, 2013). Whereas the court's previous decisions required a heightened justification to seal any document filed "in anticipation of" a court ruling, Bennett permits sealing on a much lesser showing, at least until the court actually considers the records in rendering a decision.

As a result of Bennett, state court filings might remain sealed for lengthy periods with little judicial scrutiny, and the public may be effectively unable to access pre-decisional documents in settled cases. The Supreme Court has been asked to reconsider or clarify its ruling.  A coalition of media organizations have also urged the Court to reconsider.  The entities signing on the amicus brief are Allied Daily Newspapers of Washington, The Daily Herald Co., Evening Telegram Co. d/b/a Morgan Murphy Media, Fisher Broadcasting–Seattle TV L.L.C. d/b/a KOMO-4, Hearst Corporation, King Broadcasting Co., KIRO-TV, KUOW Puget Sound Public Radio, The McClatchy Company, Pioneer News Group Co., Seattle Times Company, Washington Newspaper Publishers Association, Washington State Association of Broadcasters (collectively, the "News Media Amici"), and Washington Coalition for Open Government ("WCOG").

The question in Bennett was whether documents filed with a court in support of a motion that is never decided (because the case settled before a decision was reached) implicates the state constitution's guaranty that "[j]ustice in all cases shall be administered openly." Records subject to this constitutional provision may be kept out of the public court file only upon a specific showing of a compelling need for secrecy, applying the well-established, five-factor Ishikawa test. In contrast, records exchanged between the parties in discovery may be kept confidential on broader grounds.

Past Washington decisions drew a bright line between unfiled discovery—which could be subject to a protective order on a mere showing of good cause—and documents filed with the court in connection with any motion, whether dispositive or not. Under Seattle Times Co. v. Ishikawa, 97 Wn.2d 30 (1982) and more recent cases, sealing of filed documents is permitted only for a compelling reason, and only if the sealing is no broader than necessary to serve that purpose.

In Bennett, a party filed under seal confidential material produced in discovery, including third-party tax records, in connection with a summary judgment motion. Before the court could consider the motion, the parties resolved their dispute. A witness in the case later moved to unseal the documents. The trial court rejected the motion to unseal. A divided Supreme Court affirmed, finding that under the circumstances no Ishikawa analysis was required.

A total of five justices held that where a court does not rely on filed documents to make a decision, the documents never become part of the "administration of justice" and thus are not subject to Ishikawa's heightened constitutional standard.

Justice Chambers' lead opinion, joined by three other justices, holds that documents filed with a court but not "relevant" to any decision can be sealed for good cause, because "information that does not become part of the judicial process is not governed by the open courts provision in our constitution." The court ruled that court records are not subject to Ishikawa unless they become part of the court's decision-making process in connection with a decision or other "conduct" by the court.

Despite holding that the records before the court were not subject to Ishikawa, however, the lead opinion goes on to discuss how the Ishikawa factors should be applied to sealing or unsealing documents previously sealed for good cause. This portion of the opinion adds new requirements to the sealing analysis not previously recognized under Ishikawa or its progeny. Most notably, the opinion states that trial courts should consider affirmatively notifying any third party who may have an interest in the document's confidentiality that unsealing is being considered, to give that party an opportunity to advocate for continued secrecy.

In a concurring opinion, Justice Madsen agreed with the first part of the lead opinion—that is, the holding that documents not relied on in a court decision can be sealed on a showing of good cause. But Justice Madsen found the second portion of the opinion "unnecessary and confusing," noting that it appears to require litigants and the trial court to apply the constitutional open courts standard to every document produced in discovery, before any constitutional question of access even arises. In Justice Madsen's view, this "dicta should be eliminated from the lead opinion," or at least "disregarded as unnecessary to the court's decision." (Even though the concurrence disavows a large portion of the lead opinion, Justice James Johnson joined both opinions.)

Justice Stephens, joined by three others, dissented. In the four dissenters' view, the lead opinion "significantly erodes the constitutional guaranty of openness" and creates an "unworkable rule." Under the court's prior decisions, the dissent notes, "It is the filing that triggers the analysis of whether records should be opened." Basing the sealing standard on whether the record is "relevant" to a court decision makes no sense, according to the dissent, because a motion may be pending for months before a decision is reached. If a member of the press or public moves to unseal court records, the court will have to decide that motion before it knows whether the documents in question will in fact be "relevant" to a judicial decision. The question of relevance, the dissent notes, is already factored into the Ishikawa analysis. 

Bennett introduces tremendous uncertainty into previously well-settled judicial sealing issues. It replaces a clear trigger for application of Ishikawa (filing of documents with the court) with an ill-defined "relevance" standard that apparently prevents the public from reviewing court records until after the court has made a ruling based on them. The lead opinion complicates the Ishikawa analysis by adding a potentially burdensome "third-party notice" procedure and other new considerations to motions to unseal—although five (or possibly six) justices declare that this portion of the opinion non-binding. Perhaps most significantly, the decision undermines Washington's longstanding commitment to a transparent judicial system, permitting litigants to more easily seal far more court records, for far longer, than previously allowed.