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Judicial Conference Recommends New Policy for Sealing Records

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By Robyn Hagan Cain on September 14, 2011 4:06 PM

The Judicial Conference of the United States announced a new national policy this week encouraging federal courts to limit the instances in which they seal entire civil case files.

The policy states that “an entire civil case file should only be sealed when … sealing … is required by statute or rule or justified by a showing of extraordinary circumstances and the absence of narrower feasible and effective alternatives, (such as sealing discrete documents or redacting information), so that sealing an entire case file is a last resort.”

Whether a judicial record should be sealed currently depends on the judgment and discretion of the presiding judge. Appellate review of sealing decisions are conducted through interlocutory appeal or mandamus. In the past, local rules concerning sealing were crafted to help clerks clean out their vaults. For paper records, storage of sealed files was often a substantial burden, but that is less of a concern in the PACER-dominated electronic age.

According to Sealing Court Records and Proceedings: A Pocket Guide, there is a 5-point procedural checklist that judges should follow when sealing records:

  • Absent authorization by statute or rule, permission to seal must be given by a judicial officer.
  • Motions to seal should be publicly docketed.
  • Members of the news media and the public must be afforded an opportunity to be heard on motions to seal.
  • There should be a public record of permissions to seal.
  • Sealing should be no more extensive than necessary.

Under the new Judicial Conference policy, any order sealing an entire civil case should contain findings justifying the sealing, and the seal should be lifted when the reason for sealing has ended. The Conference also endorsed modifying the Judiciary's Case Management/Electronic Case Files system to include a mechanism "that would remind judges to review cases under seal annually."

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