Commission discussing open civil case records

CARSON CITY -- Civil court records would remain open unless a "compelling" case can be made why they should be hidden from public view, under a proposed policy.

The draft policy, scheduled to be discussed today by the Nevada Supreme Court's Commission on Preservation, Access and Sealing of Court Records, also would allow anyone, whether a party to the case or not, to request a court record be unsealed.

Anyone objecting to the unsealing would have to make a case to a judge on why the information should be kept confidential.

Before a record could be sealed, a judge would have to make a written finding justifying it, based on a balancing test of whether closing off access to court information "is justified by identified compelling privacy or safety interests that outweigh the public interest in access to the court record."

The draft policy says that agreement of the parties involved in a lawsuit is not sufficient in itself to seal a court record.

Barry Smith, executive director of the Nevada Press Association and a member of the court records commission, said the proposed policy is a positive development that will uniformly apply reasonable rules for accessing court records.

"The rules as drafted set a standard for openness for court records without putting a burden on the court system," he said. "Judges still want to be able to protect trade secrets, to keep people from being exposed to identity theft, to seal confidential tax records and the like.

"Under these rules, though, it won't be enough to simply ask a judge to seal a court record," Smith said. "The judge will have to spell out compelling reasons for sealing, and those reasons will always be part of the public file. And it will be possible to come back and ask the judge to unseal a court record."

State Supreme Court Justice James Hardesty, co-chairman of the commission, said he expects a thorough discussion of the proposed policy today, with a final version being forwarded to the court for its review and action.

"I think this draft rule is a big step forward for the state and the judicial system's handling these records," he said.

Hardesty said the policy will allow judges to address the sealed records question on a case-by-case basis using a consistent set of guidelines to weigh whether a record should be closed versus "the preferred default position that government and court records remain open."

It takes some of the best elements of policies from other states, including Washington and Indiana. But it also includes unique Nevada elements, such as the weighing process to be used in a request to seal a record, he said.

The issue of sealed records was taken up by the Nevada Supreme Court at the same time the 2007 Legislature was looking into the matter.

The commission's proposal is similar to legislation proposed by Assemblyman Bernie Anderson, D-Sparks, which sought to prohibit closed records unless the release of information posed a danger to the public.

Anderson's bill was rejected by the state Senate Judiciary Committee because of the review under way by the state Supreme Court.

Anderson's legislation was prompted by a series of Review-Journal articles in February that found 115 civil cases had been sealed by Clark County judges since 2000.

Some reasons that could justify sealing a court record under the proposed policy are information deemed confidential by state or federal law, and protection of trade secrets.

The policy also allows for sealing if it involves the confidential terms of a settlement agreement of the parties.

But the policy still allows for court records to be released with any confidential information deleted, or "redacted," from the record.

The draft policy also makes clear that under no circumstances can an entire court file in a civil action be sealed.

Even if a court record is sealed, there must be some identifying information about the case that is maintained on court indexes for public review, including a case number, docket code or number; the date of the initial filing; the names of parties, counsel of record and assigned judge; the notation "case sealed"; the case type and cause of action which may be obtained from the civil cover sheet; and the order to seal and written findings supporting the order to seal.

The commission reviewing the issue of sealed records already voted in June to stop the practice of sealing court records to the point where their existence is not officially documented, referred to as "super-sealing."

Exceptions would be made in situations where the law allows, such as when indictments are sealed because the suspects have not yet been taken into custody.

But commission members said carte blanche secrecy has no place in a legal system where open courts are intended to serve the public interest.

One concern about the policy's impact on trade secrets was submitted by Ray Bacon, executive director of the Nevada Manufacturers Association.

"We live in a world where major parts of the world ignore intellectual property rights," Bacon said.

Without further protections, products, processes and procedures belonging to a company could possibly be accessed in court records and give competitors a huge economic gain, Bacon said.

"We believe the information should be protected if recommended and by agreement of the mutual parties involved," he said.

Hardesty said the commission will look at other issues to consider before it disbands, including a discussion of criminal court records as well as domestic and juvenile matters.