Code of Judicial Administration – Comment Period Closed October 7, 2022

Re: Rule 4-0202.02
As for the ambiguity in the current rule, the proposed amendment makes sense. It is better for everyone, and especially the appellate clerks, to know the status of the records and how to handle them.

My concern is that this proposal is not accompanied by a proposed amendment to the factors in the rule allowing the “unseal[ing]” of records alluded to in the description (“Records may be unsealed by court order.”). My presumption is that the reference about unsealing is to Rule 4-202.04(3)(A) where “a person with an interest in the record may file a petition to classify the record as private, protected, sealed, safeguarded, juvenile court legal, or juvenile court social; or to have information redacted from the record.” (If there is another source of authority for courts to unseal records, I apologize). The rule goes on to say that in considering whether to allow access to a record the court may consider any relevant factor including the interests described in Rule 4-202, which include

(1)(A) to obtain information concerning the conduct of the public’s business;

(1)(B) to educate the public about the workings of government and the decisions being made on the public’s behalf;

(1)(C) to contribute to informed debate;

(1)(D) to hold public officers and employees accountable;

(1)(E) to increase public confidence;

(1)(F) to give notice of important claims, rights and obligations; and

(1)(G) to provide material for independent research on improving government policy.

(2)(A) to protect personal privacy;

(2)(B) to protect personal and public safety;

(2)(C) to protect a property interest that would be lost or devalued if opened to public view;

(2)(D) to promote the rehabilitation of offenders, especially youthful offenders; and

(2)(E) to protect non-parties participating in the court process, such as victims, witnesses, and jurors.

In theory Rule 4-202.04 allows the parties in an appeal where portions of the record are sealed to file a petition to reclassify the records from sealed to some other classification (i.e. private) in order to allow the parties to access the records for the purposes of appeal. That makes sense. The problem is that in practice the rule doesn’t give much help in determining when an appellate court should come to a different conclusion about the correct classification for the record than the lower court did. But in many cases this scenario will arise where the original sealing, and the content of the sealed records themselves, will be the subject matter of the appeal. The appellate process, including the heavy burden of persuasion placed on appellants, is its own justification for reconsideration of the sealing order. In other words, if the purpose of the appeal is to challenge whether the records should have been sealed in the first place, access to the contents of the records and the ability to reference their contents in the briefing and argument to the appellate court should itself be specifically enumerated as a factor to be considered in the petition gain access. The appellate courts’ policy should be to favor disclosure of the records to the parties on appeal, with whatever safeguards are appropriate, in order to facilitate the adversarial appellate process. Otherwise only the judges will be allowed to access the sealed records “when the circumstances warrant” forcing the appellate court to take the burden of persuasion from the litigants who are denied access to the record.