Justices review rules for sealing civil court cases

CARSON CITY -- The Nevada Supreme Court was urged Monday to adopt a new policy that civil court case records are open to the public unless a compelling privacy argument can be made to seal them from view.

There was no public comment at a hearing before the court on the proposed policy, which was developed by a commission of judges, attorneys, media representatives and others over the course of eight months.

Washoe County District Judge Brent Adams, a co-chairman of the commission, told the court the policy will provide clear guidelines to judges on the limited circumstances when court information should be withheld from public scrutiny.

"I think the rule is sound," he said.

No one testified for or against the proposed rule at the court's public hearing. Written comment will be taken by the court through Dec. 21 before the court acts.

Justice James Hardesty, a co-chairman of the panel called the Commission on Access, Preservation and Sealing of Court Records, said efforts were made to accommodate the concerns of business, attorneys and others raised at several hearings on the policy as it was being formulated.

Chief Justice Bill Maupin called the proposed rule "an important experiment in open government."

If adopted, the rule would 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 as approved by the commission also 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.

And 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 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."

Some reasons that could justify sealing all or a portion of a court record under the proposed policy include that the record contains information deemed confidential by state or federal law or that sealing the record is necessary to protect 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.