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Office of the Attorney General

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Bob Ferguson

AGO 1978 No. 25 -
Attorney General Slade Gorton


Records pertaining to a deferred criminal prosecution under chapter 10.05 RCW, following their removal from the court file in accordance with RCW 10.05.120, are not then required by that law either to be sealed or destroyed; however, limited concealment in a given case may be required either by the provisions of some other law (such as the state public disclosure law) or, conceivably, by court order.

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                                                                 August 17, 1978

Honorable Christopher T. Bayley
Prosecuting Attorney
King County
516 Third Avenue
Seattle, Washington 98104

                                                                                                                 Cite as:  AGO 1978 No. 25

Dear Sir:

            By letter previously acknowledged, you have requested our opinion on a question which we paraphrase as follows:

            Are records pertaining to a deferred criminal prosecution under chapter 10.05 RCW, following their removal from the court file in accordance with RCW 10.05.120, then required by that law either to be sealed or destroyed?

            We answer your question in the negative for the reasons set forth in our analysis.


            Chapter 244, Laws of 1975, 1st Ex. Sess., now codified as chapter 10.05 RCW, permits a court of limited jurisdiction (e.g., a district justice court) to defer prosecution of a person charged with a misdemeanor or gross misdemeanor under certain conditions, including the defendant's agreement to follow a treatment plan for related alcohol, drug or mental problems.  Upon the court's approval of the plan and the defendant's agreement to comply with it, an appropriate docket entry is to be recorded and a copy of the treatment plan is to be

             [[Orig. Op. Page 2]]

            ". . . attached to the docket, which shall then be removed from the regular court dockets and filed in a special court deferred prosecution file. . . ."  (RCW 10.05.060)

            RCW 10.05.090 provides that, upon a defendant's breach of his or her treatment plan (and the entry of appropriate findings relative thereto), the court may order that the defendant be removed from deferred prosecution and, in that event ". . . the defendant's docket shall be returned to the regular court files and the defendant shall be arraigned on the original charge."  RCW 10.05.100 states that if such a defendant is convicted of a subsequent, similar offense, the court in which the defendant is under deferred prosecution shall ". . . remove the defendant's docket from the deferred prosecution file and require the defendant to enter a plea to the original charge."

            Concisely, it is quite possible (and hopefully, probable) that the defendant will neither breach his or her treatment plan nor be convicted of a subsequent similar offense‑-at least while still involved in that plan.  With these possibilities in mind, the legislature in RCW 10.05.120 further proscribed as follows:

            "Two years from the date of the court's approval of deferred prosecution for an individual defendant, those dockets that remain in the special court deferred prosecution file relating to such defendant shall be dismissed and the recordsremoved." (Emphasis supplied)

            Your question, in essence, is whether this provision requires either the sealing or the destruction of the subject records in connection with or following their "removal" in accordance therewith.  Our answer, for the reasons hereinafter stated, must be in the negative on the basis of the law as it now stands.

            (a) Destruction:

            The operative word in RCW 10.05.120, supra, is "removed."  That word is not, however, specially defined.  Therefore, it must be deemed to have been intended by the legislature to be given its common, ordinary meaning or, in other words, its general dictionary definition.  Garrison v. State Nursing Bd., 87 Wn.2d 195, 196, 550 P.2d 7 (1976).  Webster's New World Dictionary (College Ed. 1966), defines "remove" as meaning,inter alia,

             [[Orig. Op. Page 3]]

            ". . . to move [something] from where it is; lift, push, or carry away, or from one place to another . . . to wipe out; get rid of; eliminate:  as,remove the causes of war . . . to take, extract, separate or withdrawn [from] . . ."  (Emphasis supplied)

            Although one aspect of this dictionary definition of the word "remove" arguably would support an interpretation that deferred prosecution records are to be destroyed, more compelling considerations support an interpretation based upon the first of these stated meanings, i.e., that the records merely are to be moved to another place.

            To begin with, in enacting a law the legislature is presumed to be familiar with its own prior enactments. Leonard v. Bothell, 87 Wn.2d 847, 853, 557 P.2d 1306 (1976).  In this case, such prior enactments include RCW 40.14.060 and 40.14.070, which prohibit the destruction of official public records except upon certain conditions.  Under RCW 40.14.010, this prohibition is applicable to ". . . all records or documents required by law to be filed with or kept by any agency of the state . . .," and the term "agency" is defined by WAC 414-08-010 to include any court.  Assuming, therefore, that deferred prosecution records are required by law to be filed with the court in order to be considered by it under chapter 10.05 RCW, such records are protected from destruction by RCW 40.14.060 and 40.14.070,supra.

            We acknowledge, in connection with the foregoing discussion of chapter 40.14 RCW, that another section, RCW 40.14.080, does suggest that the above‑described prohibition would not control over another statute ". . . authorizing the destruction of public records. . . ."  However, in our judgment the legislature cannot be deemed to have authorized such destruction when it merely provided for records to be "removed."

            In support of this last-stated conclusion, we think it significant that in other instances the legislature has clearly indicated that it knows how to specify the destruction of a record when that is what is desired.  For example, RCW 13.04.274 expressly provides, in subsection (1), for certain records pertaining to juvenile offenders which are improperly possessed by an agency to be "destroyed."  Similarly, subsection (6) of the same statute sets out a procedure by which a person who has been the subject of any information alleging a juvenile offense may obtain an order for the "destruction" of all records pertaining to his/her case.1/   Clearly, if the legislature had similarly  [[Orig. Op. Page 4]] intended to provide for the destruction of deferred prosecution records, it could have said so.

            Two other preexisting statutes are also worth noting.  We have reference to RCW 40.16.010 and 40.16.020 which, respectively, (a) make it a crime to wilfully and unlawfully remove, alter, mutilate, destroy, conceal or obliterate a record, paper, document or other thing filed or deposited in a public office and (b) make it a criminal act for an officer, inter alia, to mutilate, destroy, or conceal any record or paper pertaining to his office.  While these provisions obviously do not include otherwise lawful conduct, it may be presumed that the legislature was familiar with them and would clearly have indicated an intention to require destruction if such destruction otherwise could result in criminal liability.  See,Matsen v. Kaiser, 74 Wn.2d 231, 232-33, 443 P.2d 843 (1968).

            (b) Sealing:

            Much of what we have already said concerning the lack of a requirement in RCW 10.05.120 for the destruction of records relative to deferred prosecutions also relates to the question of whether such records are required by that statute to be sealed.  Once again, the issue is simply whether the word "removed" means that the deferred prosecution records are to be sealed or otherwise kept from public inspection.

            Just as the legislature did not say "destroyed" in RCW 10.05.120, it likewise did not say, "sealed."  Similarly, none of the dictionary definitions of "removed" which we have earlier noted include the concept of concealment.  And just as the legislature in some cases has provided expressly for the destruction of certain records, it likewise has expressly provided in other statutes for the sealing of records.  For example, RCW 26.32.150 states that all records of any proceeding under the laws governing adoptions shall be "sealed" except as therein provided.  Also, subsection (2) of RCW 13.04.274, supra, sets up a procedure for the "sealing" of certain juvenile justice or care records, and, according to subsection (4) of that statute, upon entry of an appropriate court order ". . . the proceedings in the case shall be treated as if they never occurred . . ." and such records shall be regarded as "confidential."  In contrast, the language chosen (and not chosen) by the legislature in its enactment of RCW 10.05.120,supra, does not evidence a comparable legislative intent to provide for the sealing of deferred prosecution records.

             [[Orig. Op. Page 5]]

            (c)Conclusion and Consideration of Possible Impact of Other Laws:

            For the foregoing reasons, therefore, we answer your question in the negative on both counts.  In short, all that RCW 10.05.120, supra, does is to require the removal of the records from the particular file referred to therein‑-and it in no way governs what then is to be done with those records.

            Having so concluded, however, we would add a brief postscript for your further consideration.  While RCW 10.05.120 itself does not require either destruction or sealing of the subject records, there exists the possibility that some other law, or even an appropriate court order in a given case, might qualifiedly require the latter.2/   As you know, for example, both the state public disclosure law (chapter 42.17 RCW) and the newly-enacted criminal records privacy act (chapter 10.97 RCW), as well as various related federal statutes and regulations, have a significant impact upon access to certain public records.  The applicability of any such laws largely depends upon two basic factors; namely, (a) what agency of government has actual custody of the particular records and (b) what kinds of information are contained in those records.  Also, certain constitutional or other overriding principles may come into play,3/ possibly causing the courts themselves to order nondisclosure of particular information on a case‑by-case basis.4/

            [[Orig. Op. Page 6]]

            What this means, in our opinion, is that while there is no legal requirement under chapter 10.05 RCW that all records pertaining to a deferred criminal prosecution be sealed from public view following their removal from the court's file, specific information contained in certain of these records could well be deemed, in a given case, to be exempt from unrestricted public inspection.  However our purpose, at this time, is simply to bring these potential complications to your attention.  Beyond that, we do not think it appropriate to attempt to proceed further into what could prove to be a maze of potentially applicable state and federal constitutional, statutory, regulatory, and judicial doctrines solely on the basis of the general and abstract question which you have here placed before us. We trust that you will understand and will nevertheless find the foregoing to be of some assistance.

Very truly yours,

Attorney General

Assistant Attorney General

                                                         ***   FOOTNOTES   ***

1/See also, RCW 13.04.230, repealed effective July 1, 1978, which likewise specified the destruction of certain juvenile records.

2/Insofar as destruction is concerned, we are of the opinion (based upon our research of other possibly applicable laws) that there presently exists no legally enforceable requirement, from any source, that the records here in question be destroyed following their removal from a court's special deferred prosecution file.  In fact, in view of the restrictions upon unauthorized destruction of public records which exist in such statutes as RCW 40.14.060 and 40.16.010 and 40.16.020, we would think this approach to be virtually out of the question.

3/See e.g.,Cohen v. Everett City Council, 85 Wn.2d 385, 535 P.2d 801 (1975);Eddy v. Moore, 5 Wn.App. 334, 487 P.2d 211 (1971);Monroe v. Tielsch, 84 Wn.2d 217, 525 P.2d 250 (1974).

4/See generally, Annotations at 71 A.L.R.3d 753 (1976), 46 A.L.R.3d 900 (1972), 175 A.L.R. 1260 (1948).