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At its October 27th
meeting, the Judicial Council of California approved changes to the
California Rules of Court regarding the sealing of documents. The new
rules went into effect on January 1, 2001. The action incorporates into
the rules the state Supreme Court's decision in NBC Subsidiary (KNBC-TV), Inc. v. Superior Court (1999) 20 Cal4th 1178. In that case,
regarding media access to the lawsuit Sondra Locke had brought against
Clint Eastwood, the court ruled that the right of public access to trials
applied to both civil and criminal proceedings.
The main thrust of the rules changes is expressed in
Rule 243.1 (c), "Unless confidentiality is required by law, court
records are presumed to be open." Formerly, parties could stipulate or
agree to seal certain documents. With the new rules, this can only be done
by a court order.
The new rules do recognize certain exceptions. "Records
that are required to be kept confidential by law" including records of
the family conciliation court and in forma pauperis applications
are not made public by this rule. Neither are materials filed in
connection with discovery motions or proceedings. If discovery materials
are used at trial or in proceedings on matters not related to discovery,
such materials are open to public inspection. Discovery materials that are
not filed with the court and confidential out-of-court settlements are not
made public by this rule change, though the council is examining the
matter further and may change this in the future.
The rules also give directions for the judges to follow
in determining whether or not to seal a record. "The court may order
that a record be filed under seal only if it expressly finds that:
(1) There exists an overriding interest that overcomes
the right of public access to the record ;
(2) The overriding interest supports sealing the
record;
(3) A substantial probability exists that the
overriding interest will be prejudiced if the record is not sealed;
(4) The proposed sealing is narrowly tailored; and
(5) No less restrictive means exist to achieve the
overriding interest."
The courts order must "(i) specifically set forth the
factual findings that support the order, and (ii) direct the sealing of
only those documents and pages - or, if reasonably practicable, portions
of those documents and pages - that contain the material that needs to
be placed under seal. All other portions of each document or page must be
included in the public file."
The complete text of the new rules, including the
committee comments, is available from the Judicial Council at www.courtinfo.ca.gov/rules/amendments.htm.
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