Standards for sealing civil cases tougher


CARSON CITY -- Civil court records will remain open to the public unless a compelling privacy or safety argument can be made for sealing them, the Nevada Supreme Court decided Monday.

All seven members of the state's highest court voted for the new rules, ordering them to take effect today rather than the customary 60 days.

"This is such an important issue that the Supreme Court believes it should go into effect immediately," said Justice James Hardesty, co-chairman of the commission.

"This year the Nevada Supreme Court has undertaken a number of important initiatives designed to improve the state's judicial system," said Chief Justice William Maupin. "This particular initiative underscores the court's belief in open government and our commitment to preserve the public nature of the business of the judicial branch, including its records."

The rules are the result of several months of hearings and a review of similar policies in other states by the Commission on Access, Preservation and Sealing of Court Records.

The panel, whose members were appointed by the high court in April, is made up of judges, attorneys, media representatives and other interested parties.

While the justices adopted almost all of the commission recommendations, they revised the wording of a few of them to clarify issues and address concerns voiced after the commission issued its report.

Justices set a time limit for individuals to ask the courts to unseal documents or files. Under the new rules, any person, a litigant or nonlitigant, can challenge an order sealing documents and ask that the documents be unsealed.

Those motions or petitions can be filed any time within five years of a case being closed or an appeal being resolved, according to the new rules. The justices had considered a four-year time limit.

Hardesty said the rule applies to all current and future court records. Anyone seeking to open a currently sealed file may do so, providing the case falls within the five-year time frame.

Both the Legislature and the courts looked into the issue of sealed records in civil cases last year.

The legislative inquiry, which did not result in producing any changes, 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.

A.D. Hopkins, special projects editor for the Review-Journal and a member of the commission, generally praised the adoption of the new rules.

"The new rules should go far to regulate the practice of some judges who asserted absolute authority to seal cases without explanation to the public that pays for the court system," he said. "I'm a little worried that the remedies outlined to unseal a case may be too expensive for ordinary citizens to undertake, and question the wisdom of a five-year limit on motions to unseal, but at least remedies are provided."

Barry Smith, executive director of the Nevada Press Association and a member of the commission, called the new rules "a significant statement for open government in Nevada."

"While the number of cases being sealed was relatively small, the Review-Journal's series showed that some judges were willing to close court files for little or no reason," he said. "All the public could do was wonder what was being hidden, and why.

"The new rules still allow judges to seal files, but they have to do so for the right reasons, and they have to make a public record of their decision," Smith said. "That's what open government is about: accountability."

Until now, some judges in Nevada generally claimed wide discretion when it came to sealing civil cases or portions of documents in them. The new rules limit that discretion and require that a judge specify in writing why sealing a record or redacting a portion of it is justified. In the written findings, judges must identify "compelling privacy or safety interests that outweigh the public interest in access to the court record."

The purpose of the new rules is to provide a uniform procedure for the sealing and redacting of court records in civil cases. The new rules apply to all court records in civil actions.

An agreement of the parties in a civil lawsuit alone does not constitute a sufficient basis for the court to seal or redact court records, the new rules state.

The Supreme Court specifically prohibited records from being sealed to conceal a public hazard.

It also prohibited so-called "super sealing" -- the practice of sealing an entire file.

Under the new rules, records can be sealed if permitted by state or federal law or to protect such information as trade secrets, personal identifiers such as Social Security numbers, medical or mental health records, or tax and financial records.

But 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; the order to seal and written findings supporting the order to seal; and the identity of the party who filed the motion to seal.

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

The new rules have similarities 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.

His bill passed the Assembly but was rejected by the Senate Judiciary Committee because of the separate review authorized by the Supreme Court.

Clark County's District Court authorities acknowledged in August that they did not know how many lawsuits have been sealed from public view, why they were sealed, how many were sealed inappropriately, or who sealed many of them.

Contact reporter Sean Whaley at swhaley@reviewjournal.com or (775) 687-3900.

 

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