Courts still keeping documents sealed

Fifteen months after the state Supreme Court demanded judges stop hiding lawsuits from the public, Clark County courts, judges and local attorneys have violated or misinterpreted new rules intended to keep court records open, court administrators said.

"We are still working through it," Clark County Civil Court Presiding Judge Elizabeth Gonzalez said of state Supreme Court rules, which limit judges' power to seal civil case records. "We are moving forward. We have issues we are trying to identify, but they are small bumps in the road compared to the level of sealing we had before."

A Review-Journal examination included 109 sealing-related court documents filed since the state Supreme Court rules took hold in January 2008.

It found court documents remained sealed after cases were closed; judges ordered information redacted from court records that was never erased; documents were not properly titled to alert the public that sealing was involved; judges have not always issued independent findings before sealing documents; and the court's computer database, specially programmed to corral all sealing-related records, missed nearly 20 percent.

The computer's oversights were discovered by a human backup system.

"As a trial court, we need to be proactive," said District Court Judge Timothy Williams, who also is on the Clark County Courts Executive Committee, which oversees courthouse operations.

"We need to have some safeguard in place for judges because a stipulation might fall through the cracks if a judge changes clerks."

Brent Adams, a Washoe County District Court judge, co-chaired a state Supreme Court advisory committee while it authored the document-sealing rules later adopted by the higher court.

Adams declined to comment on Clark County's compliance but did say the rules aren't difficult to follow.

"We are not trying to crack the secret formula for Coke. It's a simple, straightforward process used in many other jurisdictions," he said.

After the state Supreme Court approved the sealing procedures, Adams stepped down from the Commission on Preservation, Access and Sealing of Court Records, but the commission continues to study issues including compliance with the new rules.

Gonzalez and Steve Grierson, assistant court administrator, acknowledged the court computer was to blame for some problems and that judges made mistakes.

They also pointed a finger at local attorneys, saying they are responsible for titling documents as required by the rules and for redacting information when ordered by a judge.

"Part of our jobs as judges is to protect those who need to be protected (by sealing documents), but I have judges who are still not sure of the rules," Gonzalez said.

Adams, however, said the courthouse staff is responsible for the rules, not attorneys or their clients.

"The court administration or the chief judge has to be responsible for implementing sealing decisions," Adams said. "It is not the responsibility of the lawyers. It is not the responsibility of the press. It's the responsibility of the courts to comply with the new rules."

Both the statewide rules, and Clark County Courts' ongoing review of documents sealed, were prompted by Review-Journal stories in 2007 which showed some District Court judges believed they had unbridled discretion to seal lawsuits. They did seal many without explanation.

Sealed cases involved public and community services -- such as public utilities, hospitals, banks, child care centers, private schools and churches -- and wealthy or influential figures including physicians, real estate developers, politicians, casinos, lawyers, and judges or their relatives.

Previously, nearly all information about 298 sealed lawsuits dating back to 1990 was hidden from the public. Clark County District Courts last year refiled those hidden cases under the new rules, and far more information is available even though they remain sealed.

Lucy Dalglish, executive director of the Virginia-based Reporters Committee for Freedom of the Press, said the new rules were enacted immediately by the Nevada Supreme Court because judges' practice of sealing entire cases was "illegal."

The new rules are vital to assure that court records remain open to the public, Dalglish said.

"Secret justice is just a bad idea. The only way we know we are being treated fairly by the ultimate arbiter of democracy is if we are able to see what they are doing," Dalglish said. "The only way we can see that we are all being treated fairly is if we have access to those records and those proceedings."

The new rules allow litigants, the press or the public to request that a judge fully unseal those old cases, but there hasn't been any appetite to do so, according to court administrators.

While reviewing about half of the 109 sealing-related court documents provided by the court, the Review-Journal found that, after documents were filed under seal as permitted by the rules, they remained sealed indefinitely in violation of the rules.

With several documents filed under seal, a judge closed a case without ever ruling on whether the documents should be unsealed.

"That shouldn't be happening, and we are exploring why it is happening," Gonzalez said.

The Supreme Court rules state that a document filed under seal "remains confidential for a reasonable period of time until the court rules on the motion."

However, in Clark County, when a case is settled out of court and a judge closes the case with the stroke of a pen, the computerized case-management system automatically cancels subsequent court dates, Gonzalez said.

As a result, the case falls off the courthouse radar and the sealed documents are never ruled on by the judge.

"Those shouldn't be left hanging out there. It should never go undecided," she said.

Gonzalez said the courthouse is replacing its outdated computer, and that she believes the new one can be programmed so it won't automatically cancel hearings.

The list of 109 sealing-related documents included various requests from attorneys to seal documents, and orders from judges to seal documents. However, the list did not include, under any of the case numbers reviewed by the newspaper, a request to seal and a corresponding order to seal or unseal a document.

Grierson acknowledged that a layman should be able to examine a case file to determine the chain of events after a document is filed under seal.

When asked why there wasn't a request and corresponding order, or vice versa, for each case, Grierson said, "I am not sure."

Gonzalez said requests to seal may be missing from the database because, in some cases, a judge sealed a document without a request from an attorney and that ruling may not have registered on the computer.

However, Adams said, the Supreme Court rules require that a motion be filed and that a judge rule on it.

"There must be a filed, written and noticed motion and there must be an order that sets out the justification for the sealing," he said.

Under the state Supreme Court rules, a judge may seal a document "provided the court makes and enters written findings that the specific sealing or redaction is justified by identified compelling privacy or safety interests."

However, in several cases -- involving clashing companies and confidential proprietary information -- the attorneys filed a list of documents they wanted sealed and cited the state Supreme Court rules that permit sealing in some circumstances; then a judge simply filled out an order stating "Hereby Ordered" before sealing the documents.

The orders do not appear to include an independent explanation from the judge, or even cite one of the eight circumstances, spelled out in the state Supreme Court rules, under which sealing may be permitted.

Gonzalez said many stipulation-and-protective orders, which keep confidential business records sealed, are approved during the discovery process of a trial, when the judge has a limited role and information is supposed to be shared privately between the dueling attorneys.

She also said it is routine for attorneys to write up orders based on a judge's ruling and for the judge to sign the order.

"We do rely on the attorneys to provide the orders to us. It is rare for us to issue an order that is written. If we did, we wouldn't have time to get anything else done," Gonzalez said.

Regarding judges fulfilling their duties under the rules, she said, "Motions are getting well scrutinized by our bench."

Adams said the state Supreme Court rules don't allow judges to take a passive role on sealing documents.

"The rules prohibit lawyers from whipping into the judge a stipulation-and-protective order and having the judge rubber-stamp it. That is not permitted," Adams said. "There must be a written motion, an independent judgment by the court, and a written order that sets out the specific reason why there is a compelling privacy interest (to seal a document). ... You can't have a 'Hereby Ordered' type of thing."

In a handful of cases, a litigant's personal information, such as a bank account number or Social Security number, was included in court documents in violation of a judge's order to redact the information.

After a judge orders data redacted from a document already filed with the court, it is the attorney's responsibility to refile the document with the redactions, Gonzalez said.

"We have noticed a lack of compliance by some attorneys with respect to the orders."

About 15 of the 109 sealing-related documents identified by the court had titles that did not include words such as "seal" or "redact" as required.

A motion to seal or redact a court record "must disclose, in its title and document, that sealing or redaction is being sought," according to the rules.

Gonzalez said attorneys failed to include the required words in the document titles, and Grierson said courthouse clerks are prohibited from revising the title of a document whether or not it complies with the state Supreme Court rules.

"If you look at the title in some instances, the rule is not being followed, but there are not that many. I would argue that over time they (attorneys) will get better," Grierson said.

Adams said the primary purpose of the new rules is to bring to light matters concerning sealed court records.

"The motion must state that sealing is being sought," he said.

"You can't disguise the motion to seal under some other title document."

Contact reporter Frank Geary at fgeary @reviewjournal.com or 702-383-0277.