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 No. 71393-1-1 DIVISION ONE UNPUBLISHED OPINION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 ofopenness, a defendant has the burden 

### ofestablishing a "serious and imminent" threattoanimportantinterest. Here, Bree Ann Smith Brazille soughtto seal competency evaluations conducted byWestern 

### 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 sealthe records.
FACTS 

### On April 28, 2013, Brazille was arrested after an officer observed her 

### leaving the driver's seatofa stolen Honda Prelude in aSafeway parking lot. On May 1, 2013, the State charged Brazille with one count ofpossession ofastolen
vehicle. 

### On August 12, 2013, defense counsel and the State agreed that the trial court should sign anorder to evaluate Brazille's competency to stand trial. The 

### trial courtsigned theorder. Western State Hospital (WSH) evaluated Brazille, and determined thatshe was not competentto standtrial. On September9, 2013, theNo. 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 ofher 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 ofthe child, and Brazille feared that in the event there were a custody issue in the future, the WSH report could be 

### used against herin 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 ofthis 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 Thetrial 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 herwith a single misdemeanor count ofvehicle 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). 2Report ofProceedings (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 courtcontinued the matter to allow the presiding 

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

### justify sealing orredaction ofthecompetency reports. Brazille wassentenced 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 10oftheWashington Constitution requires thatjustice be 

### administered openly. Wash. Const, art. I, § 10. "Any exception to this 'vital 

### constitutional safeguard' is appropriateonlyinthemostunusual ofcircumstances." Hundtofte, 181 Wn.2d at 7 (quoting In re Pet, ofD.F.F., 172 Wn.2d 37, 41, 256 P.3d 357 (2011)). 

### "[Cjompetencyevaluations arepresumptivelyopen oncetheybecomecourt 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 atrial court may seal court records ifit enters written 

### findings that the sealing "is justified by identified compelling privacy or safetyNo. 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 itselfsufficient, 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. Adefendant 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 proofindicating that there was an actualcustody issue at the time of the hearing orin the nearfuture. In adeclaration she filed with thetrial courtdated 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 inJanuary2013, andthatshewished to"fightcustody."5 Butno evidence
was furnished to the trial court that affirmatively demonstrated that such a court 

### proceeding waspending, thatthefamily law court had made afinal determination oncustody, or thatBrazille 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.

4Clerk'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 notovercome the 

### constitutional presumption ofopenness, and that closure is only appropriate after 

### balancingthe Ishikawafactors. 178Wn.2d at355-56. Here, thetrialcourtcorrectly ruled that the Ishikawa factors did notweigh in favor of sealing. RCW 10.77.210 does not alter this determination. Affirmed. 

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WE CONCUR: 

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