California Privacy Rule Change

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11Dec2013

California Privacy Rule Change

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Courts of JusticeAt 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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