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UPDATE (3/09)
Please see below for more information on the new sealing case
of State v. KRW.
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.
KRW
update:
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 (1) there is a serious and imminent threat to
an important interest; (2) anyone present in court must be given a
chance to object to the sealing; (3) there is not any way to protect
the interest named in (1) that is less severe than sealing; (4) the
public's interest in the file is outweighed by the defendant's need for
sealing; and (5) 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.
Steve
Rosen
Attorney at Law
800 5th Avenue, 40th Floor
Seattle, WA 98104
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