In Bennett v. Smith Bunday, the Washington Supreme Court rules that article I, section 10 of the Washington Constitution requires that only material relevant to a decision actually made by a court is presumptively public. In the absence of a court decision, records do not become part of the administration of justice and may remain sealed for good cause under a stipulated protective order.

Stemming from a marriage dissolution, Rondi Bennett and her father, Gerald Horrobin, sued the accounting firm Smith Bunday Berman Britton, alleging that the firm aided Rondi’s husband in embezzling and hiding money from jointly owned businesses. As part of discovery, Smith Bunday provided confidential nonparty tax records under a stipulated protective order, and the documents were marked “confidential.”

Although the case settled, a response filed in the court by Rondi and Gerald contained or made reference to “confidential” documents in violation of the stipulated protective order, apparently by accident. The parties agreed that Rondi and Gerald would refile redacted and sealed versions. However, Rondi and Gerald’s expert witness moved to intervene, asserted his right as a member of the public to open access to court records, and opposed the refilling because “everything was about to go underground.”

Under article I, section 10 of the Washington Constitution, court records that become part of the administration of justice are presumptively public and may be sealed from the public only upon a showing of some compelling need for secrecy. However, the public does not have an interest in documents when the court does not actually make a decision or when the documents are not relevant to the merits of a motion before the court.

Here, the “confidential” documents filed with the court were not part of the administration of justice because the parties settled prior to court disposition. The trial court had no occasion to use the information as part of its decision making process. As the Court further noted, “The supporting material cannot be relevant to a nonexistent decision.” Therefore, the “confidential” documents were not presumptively public under article I, section 10.