Personal Injury, Probate, Employment, & Complex Litigation


Sealing Court Records

In the news we often hear about how the court records are sealed or have been unsealed, but before I became an attorney, I didn’t really know what that meant.

Generally speaking, the public has a right to know of the activities that are ongoing with the government. One of the most common interaction through the judicial branch at a courthouse. If a court reporter is present in the courtroom, everything said in that courtroom is on the record and available for the public to obtain. Additionally, any documents citizens file with the court are also publicly available.

Sealing court records is the act of making certain information found in the records unavailable to the public, whether it is a complete ban of release of documents, or the release of only redacted information. While it is often discussed it is actually rarely used.

The process of sealing documents is difficult and rarely granted. California Rule of Court 2.550 outlines the process.

Essentially, in order for sealing to be proper the judge must explicitly find:

  1. That the private interest of the individual seeking to seal the records are overwhelming greater than the public interest in having access to the records;
  2. The private interest supports sealing the record;
  3. A substantial probability exists that the private interest will be harmed if the record is not sealed;
  4. The proposed sealing is narrowly tailored; and
  5. No less restrictive means exist to achieve the private interest.

It is easier to explain the elements using a real-world example. Recently, Brad Pitt filed a motion for his custody battle with Angelina Jolie be sealed. He lost his motion. However, in the motion he was not arguing on his behalf, but instead on the behalf of his children.

While it is unclear what private interest Brad put forward, the argument I would make is that the private interest at stake is the likely embarrassment and emotional harm Brad’s children would sustain having their parents activities and fighting remain in public as it will be publicized all across the world, and no matter where the children go, they will have to deal with their private family life being exposed to everyone they see. This is a powerful interest as the kids had no part in becoming famous and are truly an innocent party.

On the other hand, the likely public interest is just that, the intense public interest of all aspect of Brad and Angelina’s divorce. Therefore, the public interest is even greater than it would normally be for most private citizens.

While this is a judgment call for the finder of fact, I believe that the private interest laid out overwhelmingly outweighs the public interest in these facts, as there is no societal gain from knowing about Brad and Angelina’s personal lives, only the satisfaction of their curiosity. However, it is possible that a judge would feel differently (and apparently one did).

If a judge found that the private interest does overwhelming outweigh the public interest then it is like that the private interest supports sealing the record (as the children would be confronted with their personal family lives made public), and it is likely that sealing the record would prevent the children from having to confront the statements that are sworn to be true under oath. Additionally, there is no less restrictive alternative available to protect that private interest.

Therefore, the last element to satisfy is whether the proposed sealing is narrowly tailored. This is entirely about how good of a job did the attorney do in drafting the proposed order. If it is overbroad then the court can’t grant the motion, if it doesn’t encompass enough public information, then it is an exercise in futility as the information you don’t want to be made public will be made public anyway.