 IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON
                                                 No. 71393-1-1                 S2      ~:\Sr..
                     Respondent,
                                                  DIVISION ONE
             v.
                                                  UNPUBLISHED OPINION
BREE ANN SMITH BRAZILLE,

                     Appellant.                   FILED: March 9, 2015



      Trickey, J. — To prevail on a motion to seal a court record, and thereby

overcome the constitutional presumption of openness, a defendant has the burden

of establishing a "serious and imminent" threat to an important interest. Here, Bree
Ann Smith Brazille sought to seal competency evaluations conducted by Western
State Hospital. She argues that the records could be used against her in a
hypothetical family law proceeding in the future. But she failed to prove that the
records posed an imminent threat against her asserted privacy interest.
Accordingly, we affirm the trial court's decision to not seal the records.
                                       FACTS

       On April 28, 2013, Brazille was arrested after an officer observed her
leaving the driver's seat of a stolen Honda Prelude in a Safeway parking lot. On
May 1, 2013, the State charged Brazille with one count of possession of a stolen
vehicle.

       On August 12, 2013, defense counsel and the State agreed that the trial
court should sign an order to evaluate Brazille's competency to stand trial. The
trial court signed the order. Western State Hospital (WSH) evaluated Brazille, and
determined that she was not competent to stand trial. On September 9, 2013, the
No. 71393-1-1/2


trial court found Brazille incompetent to stand trial and ordered that she be

committed to WSH for 45 days to restore competency.

       Brazille moved to seal the WSH competency report. The report contains

Brazille's description of her personal history, discussions of alcohol use, drug use,

and descriptions of symptoms and behavior suggesting mental health issues. At

the hearing on the motion, Brazille argued that sealing was necessary because

she had a minor child, the father had custody of the child, and Brazille feared that

in the event there were a custody issue in the future, the WSH report could be

used against her in family law proceedings. Applying the Ishikawa1 factors, the
trial court ruled that, although Brazille's asserted privacy interest could be

significant, it was "extremely hypothetical" and, thus, did not present a "serious,
imminent threat to the right that Ms. Brazille has in the privacy of this information

and/or her parenting rights."2 The trial court also ruled that the public's right to
open access to the courts outweighed "the hypothetical interest/threat to

[Brazille's] interest."3 The trial court denied Brazille's motion.
       In a November 6, 2013 report, WSH concluded that Brazille was fully

competent. On December 10, 2013, Brazille pleaded guilty to an amended
information charging her with a single misdemeanor count of vehicle prowling in

the second degree.

       On December 11, 2013, Brazille moved to seal the November 6 WSH

report, arguing again that the report could be used against her in a custody


1 Seattle Times Co. v. Ishikawa, 97 Wn.2d 30, 640 P.2d 716 (1982).
2 Report of Proceedings (RP) at 20-21.
3RPat21.
No. 71393-1-1/3


proceeding. The State objected to the sealing of the report, contending that

Brazille's claimed interest was not sufficiently unique or compelling to warrant a

sealing of the record. The trial court continued the matter to allow the presiding

judge additional time to read the pleadings and the competency report. The trial
court subsequently denied the motion, finding that that Ishikawa factors did not

justify sealing or redaction ofthe competency reports. Brazille was sentenced on
December 13, 2013.

       Brazille appeals the trial court's denial of her motions to seal the

competency reports.

                                   ANALYSIS

       We review a trial court's decision whether to seal a court record for abuse

of discretion. Hundtofte v. Encarnacion, 181 Wn.2d 1, 6, 330 P.3d 168 (2014).

       Article I, section 10 ofthe Washington Constitution requires that justice be
administered openly. Wash. Const, art. I, § 10. "Any exception to this 'vital
constitutional safeguard' is appropriate only in the most unusual of circumstances."
Hundtofte, 181 Wn.2d at 7 (quoting In re Pet, of D.F.F., 172 Wn.2d 37, 41, 256

P.3d 357 (2011)).

       "[Cjompetency evaluations are presumptively open once they become court
records." State v. Chen, 178 Wn.2d 350, 357, 309 P.3d 410 (2013). The party

moving to seal court records carries the burden of proving the need to do so.
Hundtofte, 181 Wn.2dat7.

       GR 15 provides that a trial court may seal court records if it enters written
findings that the sealing "is justified by identified compelling privacy or safety
No. 71393-1-1/4


concerns that outweigh the public interest in access to the court record." GR

15(c)(2) (emphasis omitted). Because GR 15 is not by itself sufficient, a court must

consider a motion to seal a court record using GR 15 and the five-step framework

for evaluating a closure outlined in Seattle Times Co. v. Ishikawa. 97 Wn.2d 30,

37-39, 640 P.2d 716 (1982). Hundtofte. 181 Wn.2d at 7.

       Under the first prong of the Ishikawa framework, the defendant must make

some showing of the need to seal. Ishikawa, 97 Wn.2d at 37. A defendant who

seeks sealing to protect an important interest other than his or her right to a fair

trial, he or she must show a "serious and imminent threat to some other important

interest." Ishikawa, 97 Wn.2d at 37. Brazille failed to meet this requirement. She

provided no proof indicating that there was an actual custody issue at the time of
the hearing or in the near future. In a declaration she filed with the trial court dated

December 11, 2013, she claimed to "believe that there is an active family law

case."4 She also stated that the final hearing concerning custody of her child

occurred in January 2013, and thatshe wished to "fight custody."5 But no evidence
was furnished to the trial court that affirmatively demonstrated that such a court

proceeding was pending, that the family law court had made a final determination
on custody, or that Brazille had any basis to challenge the court's determination.
Accordingly, Brazille's purported interest was not "serious and imminent."

Ishikawa, 97 Wn.2d at 37.




4 Clerk's Papers (CP) at 91.
5CPat91.
No. 71393-1-1/5


      Nevertheless, Brazille contends that sealing was proper under RCW

10.77.210. RCW 10.77.210(1) provides, in relevant part:

      [A]ll records and reports made pursuant to this chapter, shall be
      made available only upon request, to the committed person, to his or
      her attorney, to his or her personal physician, to the supervising
      community corrections officer, to the prosecuting attorney, to the
      court, to the protection and advocacy agency, or other expert or
      professional persons who, upon proper showing, demonstrates a
      need for access to such records.

      The Supreme Court in Chen held thatthis provision does not overcome the
constitutional presumption of openness, and that closure is only appropriate after
balancing the Ishikawa factors. 178 Wn.2d at 355-56. Here, the trial court correctly
ruled that the Ishikawa factors did not weigh in favor of sealing. RCW 10.77.210

does not alter this determination.

       Affirmed.




                                                    lA'cAe^ ; -J
WE CONCUR:




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