The State Supreme Court heard argument on the case Hundtofte v. Encarnacion last month. A decision is due at any time. This decision is expected to have a significant effect on the ability of individuals to seal or redact court records in Washington State.

Encarnacion was sued by his landlord resulting in an unlawful detainer action. The case resolved out of court, and by all respects Encarnacion was not at fault. But the court record was revealed on subsequent background checks, and Encarnacion could not pass a screening test to lease a new apartment. A King County Superior Court judge agreed to redact his name from the SCOMIS (Superior Court Case Management System) website, which would prevent Encarnacion's name from being accessed by background check companies, and would still allow the court file to accessible to the public. The King County Clerk's Office intervened in the case, and filed an appeal.

This case pits the right of privacy of the individual against the right of the public to access public records. What makes this case unique is that the public's right of access to records really isn't the issue; the issue is whether a person has the ability to seek legal protection to prevent background check companies from disclosing court records where the sole purpose of disclosure is to make money.

Redaction of a name and sealing of a court file are different types of legal protection, but the same rules apply to both. A person must establish a compelling interest that justifies redaction or sealing that overrides the right to public access. Certainly, the right of access to court records creates a high burden to overcome, but the clerk's office and background check companies oppose almost every motion to redact or seal. However, to present a meritorious motion to redact or seal , a person must show real harm that derives from disclosure of the court record. Here, Encarnacion showed that not only was he not at fault for the creation of the court record, but it has subsequently been used to deny him access to housing.

At Robertson Law, we help people try to seal court records where a criminal charge has either been subject to a dismissal, or a conviction has been vacated; meaning the conviction no longer exists and the person can state for all persons they were never convicted of the crime.  These records are still disclosed on background checks performed by employers, and the effect is as devastating as that experienced by Encarnacion. We help clients seal these court records to prevent disclosure on background checks. Therefore, the outcome on Encarnacion is important to our clients' interests.

We will have to wait and see what the Court decision will be. We are hopeful the Court will see the real world harm that exists when background check companies have unbridled access to court records. More importantly, the hope is that the Court will rule that redaction and sealing are practical and fair legal protections that, under the right circumstances, can protect people from the devastating consequences of disclosure through profit driven background checks.