Sealing Court Records-Preserving Privacy or Preventing Public Access?

Generally speaking, the public has access to all court records except those restricted by federal law, state law, court rule, or court order. If a court record includes personal information about an individual (whether a party to the case, witness, informant, minor, or juror) that is protected by legislative or judicial rule, that information is to be redacted, or that part of the record is to be sealed. Examples of restricted private data, (known as “personal identifiers”) include: full social security numbers, financial or health records, identification of minors or certain crime victims, adoption and probate records, and paternity results. Preventing public access to this type of private and sensitive information seems perfectly legitimate. But what about all remaining court records that do not disclose any protected personal data? When should those records be allowed to be sealed, and by whom?

The process of sealing, expunging, redacting, or destroying all or part of a case record varies from state to state. Before examining the procedures, let’s consider the public policy goals of allowing record sealing.   The intention behind sealing records, particularly  a criminal record, is to allow the individual to reintegrate into society after fulfilling the conditions of his or her punishment. If incented by the possibility of a sealed record upon completion of sentence or alternative treatment, the offender may be more amenable to rehabilitation, including educational and job training opportunities offered during incarceration. Additionally, with  the reclassification of certain types of offenses (i.e., controlled substance possession or use), some criminal records from the past may not reflect contemporary standards of proportionality suitable to the crime. Shouldn’t an individual under those circumstances have the right to request his or her records be sealed, if not to advance the greater social benefit of reintegration into society and the workforce?

But wait, what about the public’s right to know?  Shouldn’t a prospective employer, financial lender, or landlord be able to access the criminal history of  an applicant?  Interestingly, the trend appears to be moving in the direction of supporting the right to seal records, as noted in  a recent article:

Legislators in several states are attempting to decide what’s more important-the public’s right to know or a convicted criminal’s right to a second chance? Advocates across the country are urging passage of protections they hope would give ex-offenders a better shot at a new life by erasing their criminal pasts.  And while these efforts have failed before, a handful of bills expanding the type of records sealed recently gained traction in New York, New Mexico, and Illinois. The bills are facing strong opposition from media advocates, businesses that rely on criminal background checks before hiring employees and law enforcement agencies holding the records. 

Andrea Pagagianis,  Reporters Committee for Freedom of the Press,  News Media & the Law, Spring 2012

Regardless of how these legislative  battles are ultimately resolved, the demand for unsealed record access is not likely to diminish.  The advances in technology and the courts’ collection of digitized records have made it very easy for interested individuals and information resellers to assemble criminal history records and perform background checks.   In this electronic age, evidence of a past criminal history will become harder to conceal, and the consequences may last a virtual lifetime.

As previously noted, each state has its own procedures for sealing records.  Each state may also limit the degree and finality of record removal, from redacting portions of a single document to complete record sealing or destruction (typically referred to as expungement).  In this article, I’d like to focus on criminal record sealing for adults; civil and juvenile proceedings can be quite different, and may also render very different consequences for the individual seeking record concealment or removal.

To determine your state’s current policy on adult criminal record sealing, review the statutory and judicial guidelines governing eligibility and standing. You may want to seek legal counsel, as navigating this process may be quite daunting for the lay person.  On CourtReference,  search your state and county for links to local court rules and procedures to seal records.  See, for example, the link to Florida’s  Hernando County Circuit Court process for sealing and expunging records  there.

 There are, however,  some broad common elements in all record sealing  proceedings, regardless of jurisdiction:

1) The person seeking to seal a criminal record must request a hearing in the court where the case was originally filed, and present a compelling privacy concern that cannot be protected by any means other than restricting public access to the record.  Reasonable notice of the hearing is generally required for all parties to the original criminal case, including the victim and law enforcement agencies involved.

2) The offender must have completed all terms of his or her sentence, including restitution if ordered, and cannot have committed any new offense or crime for a specified period of time since the completion of the sentence.   The offender cannot have any criminal charges pending in any state or federal court.

3) The original conviction must be based on an act within the range of offenses currently eligible for sealing under the presiding court’s rules.  Typically, crimes involving violence,  lethal weapons, sexual assaults, harm to minors or the public are excluded from consideration.

4) The offender cannot seek to seal multiple records simultaneously, even if arising from a single criminal event.

5) Only the presiding judge at the hearing has the authority and discretion to seal all or part of a criminal record under review.

The discretion of the judge in not limitless, however; a sealing decision may be subject to review.  There are strict protections in place to prevent a judge from sealing a record if any less onerous means0f protecting the privacy or safety of the offender are available. Agreement by all parties to seal a record does not trump the public’s right to access a criminal record.  Further, merely adverse consequences for the offender (employability, deportation, etc.) do not meet the burden of a compelling privacy claim.  And, records that have been sealed can also be subject to a request for unsealing, thereby restoring or opening the original documents to public access.  Many state court administrative offices provide information about procedures and forms for record sealing. For example, in Colorado, the state judicial branch offers instructions and forms for sealing arrest and criminal records.  Maryland offers expungement forms and brochures  to remove records from public access in English, Spanish, and Korean.  To expunge records from courts, police and motor vehicle files in Oregon, use these forms provided by the Oregon State Patrol.

Finally, it should be noted that sealing a court record does not necessarily preclude court personnel, law enforcement, or other government agencies from accessing a sealed record.  There may be an overriding public safety issue deemed necessary to allow access from any court in which a record is sealed.  In the post-911 era, elevated security concerns have exponentially increased the demand for background checks, not only from law enforcement agencies, but from prospective employers, media professionals, and the rest of us asserting our fundamental “right to know.”




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