Cowles Pub. Co. v. Murphy

• Decision Date: 17 December 1981
• Docket Number: No. 47445-1,47445-1
• Citation: 637 P.2d 966,96 Wn.2d 584
• Parties: , 7 Media L. Rep. 2400 COWLES PUBLISHING COMPANY, Respondent, v. James MURPHY, Presiding Judge, District Court, John J. Madden, Charles Dorn, John Schultheis, Kathryn Ann Mautz, Daniel T. Maggs, and Richard E. Wrenn, District Court Judges, Spokane County, Appellants.
• Court: Washington Supreme Court

Page 584

96 Wn.2d 584

637 P.2d 966, 7 Media L. Rep. 2400

COWLES PUBLISHING COMPANY, Respondent, v. James MURPHY, Presiding Judge, District Court, John J Madden, Charles Dorn, John Schultheis, Kathryn Ann Mautz Daniel T. Maggs, and Richard E. Wrenn, District Court Judges, Spokane County, Appellants.

No. 47445-1.

Supreme Court of Washington, En Banc.

Dec. 17, 1981.

Donald C. Brockett, Pros. Atty., Spokane, for appellants.

Witherspoon, Kelley, Davenport & Toole, Duane M. Swinton, Spokane, for respondent.

BRACHTENBACH, Chief Justice.

This case, one of first impression in Washington, concerns public access to affidavits of probable cause, search warrants issued thereon and returns and inventories resulting from execution of search warrants.

The publisher of the Spokane Daily Chronicle newspaper sought a writ of mandamus against Spokane District Court Judges. The writ of mandamus would require that the judges file, as a matter of public record for public inspection, all search warrants, affidavits of probable cause and inventory lists pertaining thereto. The trial court issued a writ of mandamus which will be described later. We affirm.

This matter arose when a reporter sought access to a specific affidavit of probable cause and the papers relating thereto. The executed search warrant did not result in the filing of a criminal action. The issuing judge denied the request.

The stipulated facts reveal that (1) the affidavits, search warrants and inventory lists (records) are maintained by the individual judges in their offices; (2) such records are not docketed or filed with the district court administrator; (3) no procedures have been established by the district court to review such records after the warrant is returned to ascertain whether confidentiality is required; and (4) all defendant judges, except one, would not review such records on an individual basis to determine if public access would be allowed.

The publisher does not claim that the press has any special right of access, but asserts its claim as "co-extensive with that of the public."

The writ issued by the trial court provided:

The above-named defendant judges are hereby directed to file, as a matter of public record, for public inspection with the District Court Administrator all search warrants, affidavits of probable cause, and inventory lists that have been returned to them as required by Rule 2.10(d) of the Justice Court Criminal Rules and that are retained by them in their office files .... Said judges may hold public hearings, upon request of the Spokane County Prosecuting Attorney, for the purpose of determining, consistent with the Conclusions of Law entered in this action, whether certain portions of these records may not be disclosed to the public.

At the outset we emphasize that this case involves a fully executed and returned search warrant. Access to the records prior to the execution of the warrant is not before us.

I

Respondent publisher presents two rationales for public access to these records. First, because public officials (prosecutors, district court judges and county sheriffs) handle these documents they are "public records". Second, the federal and state constitutions and the statutory and common law provide a right of access to these records. For the reasons discussed below we limit our holding to a finding that the common law allows public access to these records.

A. Public Records

We find respondent's argument that these records are inherently within the public domain unpersuasive for several reasons. First, we reject the notion that documents are public or private simply because the person who handles them is or is not a public servant (or government employee). A judge's notes in conference are not public simply because the individual is an elected official. Nor are the entire records of a county sheriff or prosecutor subject to inspection if such inspection would jeopardize law enforcement. See generally In re Braughton, 520 F.2d 765, 766 (9th Cir. 1975); In re McNerthney, 95 Wash.2d 38, 621 P.2d 731 (1980) (deputy prosecutor reprimanded for revealing existence of warrant to subject of search prior to execution of warrant).

Similarly, we reject the idea that just because these officials collectively act upon a document it becomes public. A judge, sheriff and prosecutor might each handle a juvenile's record, but that record still does not become "public". See In re Lewis, 51 Wash.2d 193, 316 P.2d 907 (1957).

Moreover, we find the public/private distinction simply begs the question. In theory, every document either prepared or handled by someone in a governmental capacity is within the public domain. If the term public record is to mean anything it must be more than who handles it. Instead, the issue of access to records should be determined by the role the documents play in our system of government and the legal process. That approach raises several criteria for public access: (1) Does some substantive legal provision grant the right of access? (2) Will public access be beneficial to the legal system? (3) Would access jeopardize any other interest?

A substantive right of access may be granted by (1) statute, (2) federal or state constitutions, or (3) the common law.

Respondent argues that the rationale behind this state's Open Records Act, RCW 42.17.250, et seq., supports a right of access to these records. The judges, however, urge us to interpret RCW 42.17.250, et seq., and the exemptions therein. In Cohen v. Everett City Council, 85 Wash.2d 385, 390, 535 P.2d 801 (1975), we declined to determine whether the judicial branch was a "state agency" within the statute. We again reserve the question since it is not necessary under our rationale. Since we find that under the common law we have the inherent authority to control access to records such as these, we decline respondent's invitation to apply the rationale of RCW 42.17 or constitutional law in resolving this issue.

B. Common Law

The common law right of access to judicial records is well recognized in this country. Nixon v. Warner Communications, Inc., 435 U.S. 589, 98 S.Ct. 1306, 55 L.Ed.2d 570 (1978). Although few courts have discussed the boundaries of this right, those courts which have considered the problem recognize that the decision as to access is one best left to the discretion of the trial court. Nixon at 599, 98 S.Ct. at 1312. That discretion should be exercised in light of the relevant facts and circumstances of each case. Nixon v. Warner Communications, supra.

The common law presumption of openness of judicial records is subject to certain limitations, however. Courts have the inherent authority to control their records and proceedings. Nixon v. Warner Communications, supra; Matter of Sealed Affidavits to Search Warrants, 600 F.2d 1256 (9th Cir. 1979). We need not and do not attempt to determine the possible resolution of the extent of that inherent...