Path to getting court to seal record not always clear

By Erik Baines

Statutes and the common law govern the court’s authority to seal (or sequester) its re­cord. See generally Shenandoah Pub. House, Inc. v. Fanning, 235 Va. 25 (1988). The common law has long-recognized a public right to access to court records. Id. This right has been codified. Id.; Virgin­ia Code § 17.1-208 (“Except as oth­erwise provided by law,” records maintained by the circuit court clerk “shall be open to inspection by any person and the clerk shall, when requested, furnish copies thereof…”); see also Daily Press, Inc. v. Commonwealth, 285 Va. 447 (2013) (right of access codified in Code § 17.1-208 is coextensive with constitutional right of access in a criminal case).

In order to overcome the rebuttable presumption of openness, the movant “must bear the burden of establishing an interest so compelling that it cannot be pro­tected reasonably by some measure other than a protective order.” Shenandoah, 235 Va. at 259. This presumption is “subject to statutory exceptions…” Id. at 258. In all cases, the movant must show more than “the desire of litigants” or “risks of dam­age to professional reputation, emotional damage, or financial harm, stated in the abstract…” Id. at 259.

Several civil statutes specifically permit a court to seal its record: Virginia Code § 20-124 (divorce cases); § 8.01-576.10 (dis­pute resolutions); § 8.01-581.22 (mediation proceedings and resulting settlements). In a divorce, “[u]pon motion of a party to any suit under this chapter, the court may order the record thereof or any agreement of the parties, filed therein, to be sealed and with­held from public inspection and thereafter the same shall only be opened to the par­ties, their respective attorneys, and to such other persons as the judge of such court at his discretion decides have a proper interest therein.”

Code § 20-124. At first blush, the statute seems broad enough to allow the court the broad discretion to seal the record in a divorce suit. However, the Court of Appeals held that, with the exception of confi­dential informa­tion such as social security numbers, a litigant must still rebut the pre­sumption of open­ness. Shiembob v. Shiembob, 55 Va. App. 234, 244 and n. 2 (2009) (find­ing that father’s “concern for his professional rep­utation does not rebut the pre­sumption…”). Id. at 244. What facts justify sealing a court record is not clear. If it is to protect the “wel­fare of children,” then the pre­sumption is likely rebutted. Id. (citing In re Berg, 152 N.H. 658). Discovery materials submitted to the court (or lodged there in the first instance) are not “judicial records” sub­ject to the public’s right of access. In re Worrell Enterprises, Inc., 14 Va. App. 671, 682 (1992) (“Whether the documents are filed with or in the custody of the court is not dispositive as to whether they are ‘judicial records”’ subject to the public rights of access and stating that, since discovery documents had not been offered into evidence, they were not ju­dicial records).

Health records submitted into evi­dence may not be subject to sequestra­tion if such records are admitted into evidence or otherwise must be submit­ted to the court for its consideration. For example, in Libron v. Branch, 2009 Va. App. LEXIS 371, Record No. 0261- 09-02 (Va. Ct. App. August 18, 2009), the father made a motion to the Court of Appeals requesting that certain med­ical records of the child be sealed be­cause (1) Code § 32.1-127.1:03 (health records privacy) and (2) they would “damage and defame his character” if not placed under seal.

The court, however, held that Code § 32.1-127.1:03 does not apply to a mi­nor’s record and that the father failed to otherwise state a sufficient reason to seal the judicial records. See also Lotz v. Commonwealth, 277 Va. 345 (2009) (stating that the Code § 32.1-127.1:03 does not apply where the records are otherwise required to be disclosed by statute).

Settlement agreements submitted to the court for approval or for entry of an order are judicial records that may be subject to the public’s right of access. This includes such agreements reached in mediation despite the pro­tection provided in Code § 8.01-58.22. Perrault v. Free Lance-Star, 276 Va. 375 (2008). In Perrault, the trial court re­quired parties, petitioning the court for approval of a wrongful death set­tlement, to provide the financial terms of an agreement reached in mediation despite the prohibition contained in Code § 8.01-58.22. The wrongful death compromise statute, Code § 8.01-55, required a petition stating the settle­ment’s “terms and the reason therefor.”

The public had a right of access because “the settling parties were re­quired to obtain court approval of the mediated settlements…” Id. at 388.

Any agreements of the parties must be submitted to a court for entry of an order prior to becoming enforceable as a decree in a divorce suit. Code § 20- 109.1; see e.g. Shoosmith v. Scott, 217 Va. 789 (1977) (a contract approved by, but not incorporated into, a divorce de­cree may not be enforced by contempt).

As an agreement must be submitted to the court and the court “may” rati­fy its terms, such an agreement would, as in a wrongful death settlement, be subject to approval prior to becoming enforceable as an order. Therefore, a custody, visitation, child support, or spousal support agreement entered in relation to a divorce suit will be a public record unless a reason is given beyond the “desire of the litigants” or more than “risks of damage to professional reputation, emotional damage, or finan­cial harm, stated in the abstract…”

There is a paucity of Virginia appel­late case law as to what is sufficient evidence to justify sealing a court re­cord. Resort to case law of our sister states may be helpful. See Foley v. Commonwealth, 8 Va. App. 149, 161 (1989) (where a precise issues has not been considered by a Virginia court, the court will “look to our sister states for guidance”); see Shiembob, supra. (Citing sister state cases).

The Fairfax Circuit Court held that documents contained in a county em­ployee grievance dispute contained documents protected by the attor­ney-client privilege and attorney work product doctrine. Tianti v. Rohrer, 91 Va. Cir. 111 (2015). To the extent the documents contained the privileged in­formation, the documents were sealed. Id.

As to Juvenile and Domestic Rela­tions Court, “[a]ll juvenile case files shall be filed separately from adult files and records of the court and shall be open for inspection only to” the per­sons enumerated. Code § 16.1-305. JDR records in custody and visitation matters are regularly maintained in a juvenile case file.

On appeal, “[e]very circuit court shall keep a separate docket, index, and, for entry of its orders, a separate order book or file for cases on appeal… except… cases involving support pur­suant to § 20-61 or subdivisions A 3, F or L of § 16.1-241….” Code § 16.1-302. Notably, Code § 16.1-241.1 A 3 involves the disposition of a child “[w]hose cus­tody, visitation or support is a subject of controversy or requires determina­tion.” See also Code § 17.1-124 (regu­lar circuit court procedures regarding the order book control under this section where in conflict with Code § 16.1-302).

Depending on the locality, an order may be necessary to seal a custody, vis­itation, or child support matter that is appealed from JDR court to circuit court.

Erik D. Baines

has been an associate with Barnes & Diehl since 2014. He served as a law clerk for the Richmond Circuit Court for a year following his graduation from the Univer­sity of Richmond law school in 2012. He earned his undergraduate degree in 2002 from Virginia Military Institute, where he was First Standing Graduate in the History curriculum; he was selected as a member of the Marshall Table (Omicron Delta Kappa). Erik was named a Rising Star by Virginia Super Lawyers last year. He serves on the board of directors of Fishburne Military School Alumni Association. He has been an adjunct faculty member at Virginia Commonwealth University.

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