It used to be that parties could simply agree on their own to keep court records away from public view. But times have changed, and there’s a growing concern that information that should arguably have been publicly available was sealed from view. So now parties need to file a motion or an application for an order sealing the record, and the court may or may not grant it.
A recent federal case illustrates the complicated balancing the court must do when asked to seal a record. As reported in the Daily Report, the court decided there is “a particularly strong public interest” not to seal a bullied teen’s psychiatric records in his parents’ suit against the school district for the teen’s suicide. The judge agreed to seal the teen’s non-psychiatric medical records, but found that, by alleging that the school district’s failure to act led to their son’s suicide, the parents “put [his] psychiatric and school records at issue.”
Under California law, Cal Rules of Ct 2.550 and 2.551 provide a standard and procedures for courts to use when a request is made to seal a record. The standard is based on NBC Subsidiary (KNBC-TV), Inc. v Superior Court (1999) 20 C4th 1178, 86 CR2d 778. These rules apply to civil and criminal cases. They recognize the First Amendment right of access to documents used at trial or as a basis of adjudication.
The law presumes that court records are to be open, but sealing may be appropriate when the court expressly finds all of the following:
- There’s an overriding interest that overcomes the right of public access to the record;
- That interest supports sealing the record;
- There’s a substantial probability that the overriding interest will be prejudiced if the record isn’t sealed;
- The proposed sealing is narrowly tailored; and
- There’s no less restrictive means to achieve the overriding interest.
Note that these rules don’t apply to records that courts must keep confidential by law, such as fee waiver applications (Cal Rules of Ct 3.54) and search warrant affidavits sealed under People v Hobbs (1994) 7 C4th 948, 30 CR2d 651.
The sealed records rules also don’t apply to discovery proceedings, motions, and materials that aren’t used at trial or submitted to the court as a basis for adjudication. See NBC Subsidiary (KNBC-TV), Inc. v Superior Court (1999) 20 C4th 1178, 1208 n25, 86 CR2d 778; Advisory Committee Comment to Cal Rules of Ct 2.550 (2004).
For more on sealing records generally and the process of requesting that a record be sealed, turn to CEB’s California Civil Procedure Before Trial, chap 12. If you’re dealing with an appeal and the trial court had sealed the record, check out Appeals and Writs in Criminal Cases, chap 8 and California Civil Writ Practice, chap 20.
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