State Of Washington, Respondent V. Bree Ann Smith-brazille, Appellant

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON
Respondent,
v.
BREE ANN SMITH BRAZILLE,
Appellant.
No. 71393-1-1
DIVISION ONE
UNPUBLISHED OPINION
FILED: March 9, 2015
S2 	~:\Sr..
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.

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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 that this 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.
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WE CONCUR:
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