Members of a state commission, whose aim is to increase public access to court records, today will consider a separate proposal that some say threatens access and derails all of the commission's work since April.
"One provision (of the proposal) completely guts all the work that the commission has done," said Las Vegas attorney Richard Myers, who serves on the state Supreme Court's 10-month-old Commission on the Preservation, Access and Sealing of Court Records. "Given the deliberations of our commission, I would think everybody would be of the same thinking. To the degree this (proposal) guts everything we have done, I am opposed to it."
The commission is scheduled to consider a 12-page set of policies proposed by a committee of judges and court administrators, known as the Administrative Committee of the State Judicial Council. The proposal, known as the Draft Model Policy for Public Access to Court Records, was drawn up behind closed doors over the past two years, and states that it is intended to increase accessibility to court records while protecting privacy rights and proprietary information.
However, members of the commission said Friday that sections of the Model Policy conflict with new rules proposed by the commission and enacted Dec. 31 by the state Supreme Court following a unanimous vote.
Those new rules state: courts can no longer seal an entire civil case file; court records can only be sealed from the public when a compelling interest is served, such as protecting trade secrets or information confidential by law; anyone can request that a judge unseal a case or court record previously sealed; before a court record can be sealed, a judge must determine on the record that a decision to seal a record "is justified by identifying compelling privacy or safety interests that outweigh the public interest in access to the court record."
The Model Policy, meanwhile, also includes statements about the importance of protecting public access to court records, but other provisions appear to give judges the authority to decide for themselves what records will be public.
For instance, one section states a judge can declare that certain court records, or entire case files, be kept confidential if "the disclosure would constitute a clearly unwarranted invasion of personal privacy" and "the public has no overriding necessity to obtain the information, materials and records."
Myers said that section alone undermines the new Supreme Court rules, and Supreme Court Justice James Hardesty, who co-chairs the Commission on the Preservation, Access and Sealing, said the provision is just one that may need to be revised.
Hardesty said the Supreme Court is not going to dilute the newly adopted rules, and that the commission can revise the Draft Model Policy to make certain it does not conflict with the new rules.
Hardesty said the job will be tedious and likely will require two or more meetings to complete. He said the commission members can do what they want with the Draft Policy, including recommending that the Supreme Court discard it entirely.
"The (Supreme) court is not going to modify the current rule that the commission spent so much time on," Hardesty said. "There is some reconciliation that needs to take place. ... There are a number of issues and I would hate to see the commission deal with this in one meeting."
Hardesty pointed out that "well intentioned people" have worked two years on the Draft Policy, that it contains valuable recommendations and that the bulk of them do not conflict with the new Supreme Court rules that deal particularly with civil court records.
The Draft Policy also addresses criminal, Family Court and other court matters that, in some circumstances, are already kept confidential by many courts.
Some of the records that would remain confidential under the proposal include Social Security numbers, driver's license numbers, phone numbers, unserved search warrants, pre-sentence investigations by the Department of Parole and Probation, mental health and medical records and information on genetic tests.
Kathy Hardcastle, chief judge for the Clark County District Court, who sits on both the Commission and the Judicial Council's Administrative Committee, said that the two sets of policies complement one another for the most part, but that there are "a couple minor things in conflict" between the two.
Hardcastle said the Draft Policy is needed so that courts across the state follow the same set of rules when balancing public access to court records against privacy considerations.
"It gives a uniform application across the state. It's not up to each individual clerk's office to decide what should and shouldn't be seen," Hardcastle said. "We have to look at our obligation in protecting personal information contained in court records and to give access to court records."
Contact reporter Frank Geary at email@example.com or (702) 383-0277.