CRIMINAL RULE 14: PROTOCOL FOR SEALING OF RECORDS-CRIMINAL DIVISION

A. COURT RECORDS PRESUMED TO BE OPEN
B. DEFINITIONS
C. SCOPE OF PROTOCOL
D. EXPRESS FACTUAL FINDINGS REQUIRED TO SEAL RECORDS
E. APPLICATION, FILING AND SERVICE REQUIREMENTS
F. NOTICE OF SEALING ORDER
G. UNSEALING OF RECORDS

In proceedings for requests for the sealing of Court records in the Criminal Division, California Rules of Court, Rules 2.550 and 2.551 et seq. shall apply.  All judicial officers have the responsibility and authority to decide sealing requests.  The Supervising Judge of the Criminal Division may designate the judges in each Criminal Courthouse to hear sealing requests in accordance with this protocol.

A. Court Records Presumed to be Open

Unless confidentiality is required by law, Court records are presumed to be open.  (California Rules of Court, Rule 2.550(c).)

B. Definitions

(1) “Record” means all or a portion of any document, paper, exhibit, transcript, or other thing filed or lodged with the court.  (California Rules of Court, Rule 2.550(b)(1).)

(2) A “sealed” record is a record that, by Court order, is not open to inspection by the public. (California Rule of Court 2.550(b)(2))

C. Scope of Protocol

(1)  These rules do not apply to records that are required to be kept confidential by law, (e.g., search warrant records which are sealed pursuant to People v. Hobbs (1994) 7 Cal.4th 948, 963. (California Rules of Court, Rule 2.550(a)(2).)

(2) No action taken under this protocol, including the sealing of any records, shall affect the criminal discovery process, including any protective orders or actions pursuant to Penal Code § 1054.7.

D. Express Factual Findings Required to Seal Records

Pursuant to California Rules of Court, Rule 2.550(d), the Court may order that a record be filed under seal only if it expressly finds facts that establish:

(1) There exists an overriding interest that overcomes the right of public access to the records;

(2) The overriding interest supports sealing the record;

(3) A substantial probability exists that the overriding interest will be prejudiced if the record is not sealed;

(4) The proposed sealing is narrowly tailored; and

(5) No less restrictive means exist to achieve the overriding interest.

E. Application, Filing and Service Requirements

(1)  A party seeking an order to seal a record shall comply with the requirements of California Rules of Court, Rule 2.551.

(2)  Except as provided in E(3), any motion or application to seal a record shall be filed with the Court at least four Court days prior to the time set for the hearing of the motion or application.  Records that are the subject of a motion or application to seal shall be provisionally sealed pending the determination of the motion to seal.  Such records may be considered by the Court for any purpose, including a finding of probable cause, pending the determination of the motion or application to seal.  The Clerk’s Office shall post the motion or application and any attachments (except for attachments containing information sought to be sealed), case name and docket number on the Court website no later than 5 p.m. of the second Court day after filing.

(3) If a sealing order is issued pursuant to an ex parte application, the Clerk’s Office shall post the motion or application and any attachments (except for attachments containing information sought to be sealed), case name and docket number on the Court website no later than 5 p.m. of the second Court day after filing.  If the Court issues a sealing order following an ex parte application, that order shall be deemed to be a provisional order and subject to a de novo court review upon the request of any interested person.

F.  Notice of Sealing Order

In every matter in which a record has been ordered sealed, the requesting party shall file in the Clerk’s Office a written notice of the sealing order prior to the date of arraignment, or if arraignment has already taken place, no later than 5 p.m. of the second Court day after the sealing order.

G. Unsealing of Records

(1)       In misdemeanor matters, if any record has been ordered sealed, the Court shall order that the record be unsealed at the time of arraignment unless a party to the proceedings requests that the record remain sealed and the Court makes express findings pursuant to Section D above to permit the continued sealing of the record.  Notice of any request that the record remain sealed shall be provided in accordance with Section E.  If notice is provided in accordance with Section E, a motion or application to seal may be heard at the Court’s next motion calendar.

(2)       In felony matters, if any record has been ordered sealed, the Court shall order that the record be unsealed no later than the completion of the preliminary examination unless a party to the proceedings requests that the record remain sealed and the Court makes express findings pursuant to Section D above.  Notice of any request that record remain sealed shall be provided in accordance with section E and shall be filed and served on all parties who have appeared in the proceedings at least three Court days prior to the first date scheduled for the preliminary examination.  The hearing on the request for the record to remain sealed will be heard at the conclusion of the preliminary examination. 

(3)       In all matters, any person may bring a motion or application pursuant to California Rules of Court, Rule 2.551(h) for the unsealing of any Court record previously sealed, and the Court may order the unsealing of any record previously sealed in accordance with that rule. 

(Eff. 1/01/15)

 

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