High court asked to review policy on sealed cases

CARSON CITY -- A proposal requiring civil court records to be open for inspection unless a legitimate case can be made for sealing the documents from public view was approved by a panel Monday and sent to the Nevada Supreme Court for its review.

The final draft of the rule, assembled using proposals from other states and with advice from Nevada attorneys, judges, media representatives and other interested parties, is expected to provide a consistent statewide guide for courts to use when considering requests to seal records.

Currently there is no uniform policy on how to handle such requests.

The draft rule, which now will be given a hearing by the Supreme Court before its final adoption, is the culmination of months of work by the Nevada Supreme Court's Commission on Preservation, Access and Sealing of Court Records.

The premise of the rule presumes that civil court records are open unless a compelling case can be made why they should be hidden from public view. It also would prohibit the sealing of entire cases, a practice called "super sealing."

Washoe County District Judge Brent Adams, a co-chairman of the commission, said the vote was a major step forward in clarifying an important issue for the state courts.

"The commission today gave the Supreme Court a strong, concrete rule that retains public access to legal records and also protects privacy interests in appropriate cases," he said. "And it ends, hopefully forever, the practice of judges in secret sealing entire files."

Assembly Judiciary Committee Chairman Bernie Anderson, D-Sparks, a member of the commission, said the proposal appears to address the concerns raised earlier this year in the Legislature.

Ultimately lawmakers decided to defer to the court to draw up a rule rather than enact legislation sought by Anderson.

Anderson sought legislation dealing with the issue after reading a series of Review-Journal articles in February that found 115 civil cases had been sealed by Clark County judges since 2000.

Anderson said he will wait to see how the draft rule works to resolve public access concerns before taking up the issue again in the Legislature.

Barry Smith, executive director of the Nevada Press Association and a member of the commission, welcomed the vote to send the rule to the Supreme Court.

"For the first time, Nevada's judges will have clear rules for when they can seal civil court records," he said. "There must be compelling reasons, and those reasons will be in writing for anyone to see. It will be a statement of the openness of the state's court system, while at the same time recognizing there are some instances when a person's privacy should be respected."

The draft rule as approved by the commission would allow anyone, whether a party to a 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.

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

Some reasons that could justify sealing all or a portion of a court record under the proposed policy include 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 such 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, a practice that has occurred in Clark County District Court.

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 proposed policy does not encompass all court records, such as those dealing with juvenile matters or domestic relations, which are covered by state law.