Please see below for more information on the sealing case of State v. KRW, published in February 2009.
Sealing Adult Records:
Sealing your records is an extremely important step in clearing your record. To seal a record means that the government agency that holds the record will no longer allow the public to view the record. For example, if a court record is sealed by a judge (which is the most common type of sealing), then no one other than a judge or a judge's clerk will be able to view the physical record or the vast majority of the electronic record.
Many lawyers fail to seal their clients' records when they are cleaning records. Most attorneys only vacate convictions. This strategy is problematic mainly because of the internet. In the "good old days", when the Washington State Patrol was the state's only recorder of criminal histories, vacating a conviction was satisfactory in most circumstances. In today's internet world, many employers and other interested parties run criminal records checks on internet search engines such as backgroundferret and intelius. These web sites interface with Washington's court records computer, run by the Administrative Office of the Courts. This system is commonly known as JIS, which stands for the Judicial Information System. JIS consists mainly of two systems: DISCIS (District Court Information System) and SCOMIS (Superior Court Management and Information System). Since the mid 1990's, everything that happens in a criminal court case has been recorded on a JIS computerized docket. This docketing system includes substantial information for convictions, charges, acquittals, dismissals, mental health treatment, and drug abuse treatment and screening. So, when someone runs an internet background search for $10-$20, they have access to this docket, which contains a treasure of personal information. The database service that we use, which is only available to attorneys, allows us to search your records for about a dollar.
Even if a conviction is vacated, the docket will still be available on these internet search engines. This is why it is so important to seal your record in addition to vacating it. Sealing your record may prevent employers and others from running an internet background check on you and finding out everything about your case.
Record sealing in Washington is governed by General Rule 15.
The Court of Appeals just issued the KRW decision. Our office handled and won the KRW case at the trial court. After we won, the prosecution appealed the order to the Court of Appeals. Eventually, the Court of Appeals ruled that GR 15 would be unconstitutional unless the Court added 5 factors to the rule (called the Ishikawa factors). Basically, the Court of Appeals said that a defendant trying to seal records must comply with GR 15 and also show that
- There is a serious and imminent threat to an important interest;
- Anyone present in court must be given a chance to object to the sealing;
- There is not any way to protect the interest named in (1) that is less severe than sealing;
- The public's interest in the file is outweighed by the defendant's need for sealing; and
- The period of time the order shall be in effect.
Since the KRW decision, we have successfully convinced many judges (one in the King County Superior Court and the other in the Snohomish County Superior Court) to seal records. While we believe that the KRW decision can make it more difficult to have a file sealed, it clearly is still something that judges are willing to do. Most of our clients satisfy the first factor (a serious and imminent threat) because they have concerns that they will be fired or denied a job opportunity due to their convictions, or that they have been or will be denied housing because of their convictions. Almost all judges agree that lost employment and lost housing satisfy the imminent threat requirement. Generally, no one objects to the sealing except perhaps the prosecution. Most courts have found that there is no way to accomplish protect the defendant's interest other than sealing, so the third factor is usually met. Finally, most judges agree that the public's interest in the file seriously diminishes once time has passed and a defendant is eligible to have their record vacated. So, we are very confident that we will continue to have great success when asking courts to seal records.
The Supreme Court of Washington has decided not to review the KRW decision, so the decision is now good law in Washington.
The full text of the KRW decision can be found here.