SP00-3 Sealed Records Procedures Appellate and Trial Court Rules Standards for sealing. Proposal applies to civil and criminal proceedings

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1 Title Sealed Records Procedures Appellate and Trial Court Rules (adopt Cal. Rules of Court, rules.,.,.,., and.; amend rule ; repeal rules and ) Summary The proposed rules would establish standards and procedures for handling requests for sealing cases and documents in the trial and appellate courts. The rules would be effective January, 00. Source Joint Working Group on Sealed Records of the Appellate, Civil and Small Claims, and Criminal Law Advisory Committees Staff Committee Counsel: Patrick O Donnell () - patrick.o donnell@jud.ca.gov Ben McClinton () - ben.mcclinton@jud.ca.gov Joshua Weinstein () - joshua.weinstein@jud.ca.gov Discussion The Supreme Court has requested that the Judicial Council propose rules to guide the resolution of motions to file sealed documents. The courts are frequently presented with requests and stipulations to file documents under seal. The sealing of records poses difficult First Amendment issues concerning the right of public access to court proceedings and documents. (See generally NBC Subsidiary (KNBC- TV), Inc. v. Superior Court () 0 Cal.th ; see also id. at 0 0, fn..) A number of appellate decisions have indicated a need for guidance to the courts. For example, Champion v. Superior Court () 0 Cal. App.d laments the absence of guidance for courts on the issue of sealing records: [C]ustoms and practices vary greatly and little written guidance exists. (Id. At.) Standards for sealing. The NBC Subsidiary case established standards for the appellate and trial courts to follow. The court must expressly find that (i) there exists an overriding interest supporting closure and/or sealing; (ii) there is a substantial probability that the interest will be prejudiced absent closure and/or sealing; (iii) the proposed closure and/or sealing is narrowly tailored to serve the overriding interest; and (iv) there is no less restrictive means of achieving the overriding interest. (NBC Subsidiary (KNBC-TV), Inc., supra, 0 Cal.th at.) Proposal applies to civil and criminal proceedings. The proposed rules would apply to civil and criminal cases and to appeals and original proceedings, i.e., to any record that requires a court order to

2 be placed under seal. Trial court proposal. The proposed rules indicate that the sealing of cases or documents is disfavored (rule.(b)) and require specific findings before an order sealing records may be made (rule.(d)). An overriding interest must be demonstrated that overcomes the right of public access to court records (rule.(c)). The required demonstration and findings correspond to the requirements in NBC Subsidiary. The proposed rules distinguish between records requested to be placed under seal and those made confidential by statute or rule (rule.(a)()). The proposed rules cover only the former type of records, i.e., those requested to be sealed by court order. The rules do not allow a record to be filed under seal by stipulation, nor do they allow a sealing order to be based solely on an agreement or a stipulation of the parties (rule.(a)). To assist the court in the document-by-document review that is required before a record is sealed (rule.(e)()), the proposal allows a court to order references in cases involving voluminous documents, at the expense of the party seeking to seal the records (rule.(e)()). New rules. and. (to replace repealed rules and ). Two current rules of court would be repealed, and their contents would be relocated to the new rules on sealed records in the trial courts. Rule (Request for secrecy of filing) requires that a request that a complaint in an attachment proceeding not be made public include a declaration containing certain statements. This rule would be relocated and renumbered as rule.. The title of the rule would be changed to Request for delayed public disclosure, which more accurately describes the nature of the request and the temporary relief available under Code of Civil Procedure section.00. Rule (Confidential in-camera proceedings) would be repealed. This rule s first paragraph would become new rule.. The rest of the rule would be relocated to more appropriate locations in the new rules on sealed records.

3 The overall result of these changes should be to clarify the scope and contents of rules and, and to move them to more logical and accessible locations in the rules. Note: Applicability to discovery materials. The proposed rules do not expressly address discovery materials that are neither used at trial nor submitted as a basis for adjudication (not a filed record). The First Amendment generally does not compel public access to such documents. (See NBC Subsidiary (KNBC-TV), Inc., supra, 0 Cal.th at 0 0, fn. ). Additional rules to cover discovery materials, stipulated protective orders, and related matters. ***Public suggestions regarding discovery provisions are welcome. Appellate court proposal. Records not sealed by the trial court would not be filed under seal in the reviewing court (rule.(b)). On its own or a party s motion, a reviewing court would be allowed to order previously sealed records unsealed after a noticed hearing (rule.(d) and (e)). Note: Comment is invited on the proposal in rule.(d) to allow a reviewing court to unseal a record sealed by the trial court on its own motion after a noticed hearing. Although no duty is imposed, the proposal allows a court to protect the public s interest in having access to court records and proceedings without a formal application by a party or another interested person under proposed rule.(e). A motion procedure is proposed for sealing a record not previously filed in the trial court (for example, in original proceedings) upon a showing of an overriding interest (rule.(f)). The court may not allow a record to be sealed by stipulation (rule.(f)()). Under proposed rule (e), the sealed records procedures in rule. would apply to original proceedings in the appellate courts. Note: Use of must instead of shall in the new appellate rules. Following the convention adopted as part of the project to rewrite all the rules on appeal, these proposed rules employ the less ambiguous must to indicate a required action and may to indicate a permitted action or discretion. Must not means

4 is required not to or is disallowed. May not means is not permitted to or is disallowed from. (See Garner, Bryan A., A Dictionary of Modern Legal Usage (d ed., Oxford University Press) Words of Authority, pp..) NOTE: Proposals invited on handling confidential records. These proposals do not attempt to address issues that arise concerning treatment of confidential records those made confidential by statute or rule and thus not requiring a court order. Those issues may be the subjects of later rule proposals. The Appellate, Civil and Small Claims, and Criminal Law Advisory Committees invite your proposals for handling such confidential information and records. Attachment Deadline for comments: August, 000

5 PROPOSED RULES Sealed Records Procedures in the Appellate and Trial Courts Rules.,.,.,., and. would be added to the California Rules of Court; rules and would be repealed; and rule would be amended effective January, 00, to read: 0 0 APPELLATE COURT RULES Rule.. Sealed records (a) [Applicability and definition of record ] () This rule applies to sealed records and to records proposed to be sealed in the reviewing court and in original proceedings under rule. This rule does not apply to records that are required to be kept confidential by statute or other rule. () Unless the context indicates otherwise, record as used in this rule means all or a portion of any document, paper, exhibit, transcript, or other thing filed or lodged with the court. (b) [Records not sealed by the trial court] A record that was filed or lodged publicly in the trial court and was not ordered sealed by that court may not be filed under seal in the reviewing court. (c) [Records sealed by the trial court] () A record ordered sealed by the trial court that is a part of the case record on appeal or of the record supporting a writ petition must be filed under seal in the reviewing court and must remain sealed unless the reviewing court orders otherwise. () The reviewing court may examine a sealed record. () If all or any portion of the case record on appeal or of the record supporting a writ petition was sealed by the trial court, a party must include in the notice of designation of the case record or in the record supporting the writ petition the following:

6 0 0 0 (i) The sealing order; (ii) The motion to seal the record; and (iii) All documents that were filed in the trial court in support of or in opposition to the motion to seal. (d) [Court s own motion to unseal] The reviewing court may on its own motion order the unsealing of a sealed or conditionally sealed record if the court serves notice of the proposed unsealing to the parties. A party may file opposition to the proposed unsealing within days after the court s notice is filed, or within the time the court orders. (e) [Party s motion to unseal] A party or member of the public may move to unseal a sealed record. If necessary to preserve confidentiality, the motion, any opposition, and any supporting documents may be filed in both a public redacted version and a sealed complete version. (f) [Motion to seal a record not previously filed in the trial court] () A record not previously filed in the trial court must not be filed under seal without a court order. The court must not permit a record to be filed under seal based solely upon the agreement or stipulation of the parties. () A party requesting that a record be filed under seal must file a motion for an order sealing the record. () The court may seal a record only if it makes the findings required by rule.. () The party requesting that a record be filed under seal must lodge it with the court under (h) when the motion is made, unless good cause exists for not lodging it. Pending determination of the motion, the lodged record will be conditionally under seal. () If necessary to prevent disclosure, the motion, any opposition, and any supporting documents may be filed in a public redacted version, and a full version may be lodged conditionally under seal. () If the court does not grant the motion to seal, the clerk must return the lodged record to the submitting party and may not place it in the case file. (g) [References to nonpublic material in public records]

7 0 0 () A record filed publicly in the reviewing court may not disclose material contained in a record that is sealed, conditionally under seal, or subject to a pending motion to seal. () If it is necessary that a motion to seal or unseal a record disclose confidential material, the motion and any supporting papers must be prepared in both a redacted version labeled redacted and a separate full version labeled confidential. (i) In the redacted version, redaction must be limited to those specific portions whose disclosure would undermine the confidentiality of the material under seal or to be placed under seal. (ii) The confidential version must be filed under seal, if the reviewing court has ordered the material to be sealed, or lodged conditionally under seal, if it has not. (h) [Lodging records requested to be placed under seal] () The party requesting that a record be placed under seal must put it in a manila envelope or other appropriate container, seal the envelope or container, and lodge it with the court. () The envelope or container lodged with the court must display prominently the notation, CONDITIONALLY UNDER SEAL. () The party submitting the lodged record must affix to the envelope or container a cover sheet that: (i) Contains all the information required on a caption page under rule ; and (ii) States that the enclosed record is subject to a motion to be placed under seal. () Upon receipt of a record lodged under this rule, the clerk must stamp the affixed cover sheet as lodged [or received (?)] and may not file the record unless the court so orders.

8 0 0 0 Rule. Original proceedings (a) (d) *** (e) [Sealed records] Rule. (Sealed records) applies if a party seeks to lodge or file a record under seal or to unseal a record. (e) (f) *** (f) (g) *** (g) (h) *** (h) (i) *** TRIAL COURT RULES Rule.. Sealed records (a) [Applicability and definition of record ] () Rules.. apply to records sealed or proposed to be sealed by court order. These rules do not apply to records that are required to be kept confidential by statute or other rule. () Unless the context indicates otherwise, record as used in rules.. means all or a portion of any document, paper, exhibit, transcript, or other thing filed or lodged with the court. (b) [Sealing of records disfavored] The public has an interest in access to court records. Unless confidentiality is required by statute or rule, court records are presumed to be open. Orders sealing cases or records filed in an action or a proceeding are disfavored. (c) [Overriding interest necessary to seal records] The court may seal court records only if the court determines that there is an overriding interest that overcomes the right of public access to court records and that all the requirements of (d) are satisfied. Overriding interests that under appropriate circumstances may support the sealing of records include, without limitation, protecting an individual s right to a fair trial, protecting minor victims of sex crimes from further trauma or embarrassment, ensuring the anonymity of juvenile offenders in juvenile court, protecting the privacy interests of

9 0 0 prospective jurors during voir dire, protecting witnesses from embarrassment or intimidation so extreme that it would traumatize them or render them unable to testify, protecting information within the attorney-client privilege, protecting attorney work product, protecting trade secrets, protecting binding contractual obligations not to disclose information, safeguarding national security, and preserving confidential investigative information. (d) [Specific findings required to seal records] The court may order that a record be filed under seal only if it specifically finds that: () An overriding interest supports sealing the record; () There is a substantial probability that the overriding interest will be prejudiced if the record is not sealed; () The proposed sealing is narrowly tailored to serve the overriding interest; and () There is no less restrictive means of achieving the overriding interest. (e) [Scope of order] () An order sealing the record shall (i) be based on a document-bydocument review, (ii) expressly state the findings that support the order, and (iii) direct the sealing of only those documents and pages or, if reasonably practicable, portions of those documents and pages that contain the material that needs to be placed under seal. All other portions of each document or page shall be included in the public file. () If the records that a party is requesting be placed under seal are voluminous, the court may appoint a referee, at the expense of that party, to review the records. Rule.. Procedure for filing records under seal (a) [Court approval required] A record shall not be filed under seal without a court order. The court shall not permit a record to be filed under seal based solely upon the agreement or stipulation of the parties.

10 0 0 (b) [Motion to seal a record] () A party requesting that a record be filed under seal shall file a noticed motion for an order sealing the record. The motion shall be accompanied by a memorandum of points and authorities and a declaration containing facts sufficient to justify the sealing. () The party requesting that a record be filed under seal shall lodge it with the court under (d) when the motion is made, unless good cause exists for not lodging it. Pending the determination of the motion, the lodged record will be conditionally under seal. () If necessary to prevent disclosure, the motion, any opposition, and any supporting documents may be filed in a public redacted version, and a full version may be lodged conditionally under seal. () If the court does not grant the motion to seal, the clerk shall return the lodged record to the submitting party and shall not place it in the case file. (c) [References to nonpublic material in public records] () A record filed publicly in the court shall not disclose material contained in a record that is sealed, conditionally under seal, or subject to a pending motion to seal. () If it is necessary that a motion to seal or unseal a record disclose confidential material, the motion and any supporting papers shall be prepared in both a redacted version labeled redacted and a separate full version labeled confidential. (i) In the redacted version, redaction shall be limited to those specific portions whose disclosure would undermine the confidentiality of the material under seal or to be placed under seal. (ii) The confidential version shall be filed under seal, if the reviewing court has ordered the material to be sealed, or lodged conditionally under seal, if it has not.

11 0 0 (d) [Lodging records requested to be placed under seal] () The party requesting that a record be placed under seal shall put it in a manila envelope or other appropriate container, seal the envelope or container, and lodge it with the court. () The envelope or container lodged with the court shall display prominently the notation, CONDITIONALLY UNDER SEAL. () The party submitting the lodged record shall affix to the envelope or container a cover sheet that: (i) Contains all the information required on a caption page under rule 0; and (ii) States that the enclosed record is subject to a motion to be placed under seal. () Upon receipt of a record lodged under this rule, the clerk shall stamp the affixed cover sheet as lodged [or received (?)] and shall not file the record unless the court so orders. (e) [Order] () If the court grants an order sealing a record, the clerk shall substitute on the envelope or container for the notation required by (d)() a notation prominently stating, SEALED BY ORDER OF THE COURT ON (DATE), and shall replace the cover sheet required by (d)() with a fileendorsed copy of the court s order. () The order shall state whether in addition to records in the envelope or container the order itself, the register of actions, any other court records, or any other records relating to the case are to be sealed. () Sealed records shall not be open to inspection by any person except those expressly authorized by the court order. () A sealed record shall not be unsealed or destroyed except upon order of the court.

12 0 0 0 (f) [Custody of sealed records] Sealed records shall be securely filed and kept separately from the main file in the case. (g) [Custody of voluminous records] If the records to be placed under seal are voluminous and are in the possession of a public agency, the court may by written order direct the agency instead of the clerk to maintain custody of the original records in a secure fashion. If the records are requested by a reviewing court, the trial court shall order the public agency to deliver the records to the clerk for transmission to the reviewing court under these rules. (h) [Motion to unseal records] A party or member of the public, or the court on its own motion, may move to unseal a record. Notice of the motion to unseal shall be filed and served on the parties. The motion, opposition, reply, and supporting documents may be filed in a public redacted version and a sealed complete version if necessary to comply with (c). Rule.. Request for delayed public disclosure In an action in which the prejudgment attachment remedy under Code of Civil Procedure section.0 et seq. is sought, if the plaintiff requests at the time a complaint is filed that the records in the action or the fact of the filing of the action be made temporarily unavailable to the public under Code of Civil Procedure section.00, the plaintiff shall file a declaration stating one of the following: () This action is on a claim for money based on contract against a defendant who is not a natural person. The claim is not secured within the meaning of Code of Civil Procedure section.0(b). or () This action is on a claim for money based on contract against a defendant who is a natural person. The claim arises out of the defendant s conduct of a trade, business, or profession, and the money, property, or services were not used by the defendant primarily for personal, family, or household purposes. The claim is not secured within the meaning of Code of Civil Procedure section.0(b). Rule.. Confidential in-camera proceedings (a) [Minutes of proceedings] If a confidential in-camera proceeding is held in which a party is excluded from being represented, the clerk shall include in the minutes the nature of the hearing and only such references to writings or witnesses as will not disclose privileged information.

13 0 0 (b) [Sealed records] Records examined by the court in confidence, or copies of them, shall be filed with the clerk under seal and shall not be disclosed without court order. Rule. Request for secrecy of filing A plaintiff who requests that a file or the fact of filing not be made public under section.00 of the Code of Civil Procedure shall file a declaration under oath stating one of the following: () This action is on a claim for money based on contract against a defendant who is not a natural person. The claim is not secured within the meaning of Code of Civil Procedure section.0(b). () This action is on a claim for money based on contract against a defendant who is a natural person. The claim arises out of the defendant s conduct of a trade, business, or profession and the money, property, or services was not used by the defendant primarily for personal, family, or household purposes. The claim is not secured within the meaning of Code of Civil Procedure section.0(b). Rule. Confidential in-camera proceedings If a confidential in-camera proceeding is held from which a party is excluded from being represented, the clerk shall include in the minutes the nature of hearing and only such references to writings or witnesses as will not disclose privileged information. Writings examined by the court in confidence, or copies of them, shall be filed with the clerk under seal and shall not be disclosed without court order. Sealed envelopes containing confidential materials shall be securely filed and kept separately from the main file in the cause. If writings in the possession of a public agency are voluminous, the court may by written order direct the agency instead of the clerk to maintain custody of the original documents pending appellate review. If the writings are requested by an appellate court, the trial court shall order the public agency to deliver the records to the clerk for transmission to the appellate court under these rules.