And Furthermore…the Appeals Court’s Record-Sealing Breached a State Rule

Tuesday, July 17, 2001

Page 9

PERSPECTIVES (Column)

And Furthermore…the Appeals Court’s Record-Sealing Breached a State Rule

By ROGER M. GRACE

The Court of Appeal’s recent antic in not only sealing the entire record in a case but also its own opinion entailed breaches of procedures set forth by the California Supreme Court in NBC Subsidiary (KNBC-TV), Inc. v. Superior Court (1999) 20 Cal.4th 1178. I went into that in a pair of columns last week. Scrutinizing the justices’ action further, it also violated a new state rule of court which was promulgated to carry out the dictates of NBC Subsidiary.

Today’s offering will discuss that rule, as well as providing some new information on the mysterious, off-limits case.

The sealing took place in Agency for the Performing Arts v. The Walt Disney Company, B138373. That file number really doesn’t matter, I suppose, since the entire file is hidden from public view.

In response to an “unsealing” request from this newspaper, Div. Seven of this district’s Court of Appeal has solicited comments from the lawyers in the case, due Thursday. The request will then be acted upon by Justice Fred Woods, author of the secret opinion, Acting Presiding Justice Earl Johnson Jr., and Acting Justice Paul Boland (a Superior Court judge serving on assignment).

The sealing of an entire opinion is, so far as I know, unprecedented in California. Such an action is supported by no authority and is, in fact, contrary to NBC Subsidiary’s command that a court seal only so much matter as is essential to withhold from the public.

Also hidden are the trial court record and the briefs filed in the Court of Appeal.

Woods told me last week that the record “was sealed, as I recall, coming up from the Superior Court.” His recollection is only partially accurate. Portions of the file had been sealed—not the entire file. A member of the METNEWS staff went to the Superior Court Clerk’s Office Friday and fetched for me a copy of the complaint and the judgment in the case. I’ve learned that the protective order issued by Los Angeles Superior Court Judge Dzintra Janavs relates solely to documents stamped “Confidential” by a party or papers referencing such documents.

The complaint and the judgment necessarily are part of the record on appeal. These documents—and I gather others—are available for viewing in the Superior Court Clerk’s Office at 111 N. Hill Street, yet are sealed in the Court of Appeal Clerk’s Office at 300 S. Spring Street.

It happens that the parties, in filing their appendices, did not segregate documents that were subject to the Superior Court’s protective order and those that weren’t, I’m told. Nonetheless, records are sealed by the court, not the parties. It is the court’s duty, under NBC Subsidiary, to permit public access to court documents absent an overriding need for secrecy.

The locked drawer containing the Court of Appeal’s file also includes the clerk’s transcripts of trial-court proceedings held in open court, I’ve learned.

The sealing in the Court of Appeal of documents publicly available in the Superior Court is in violation of the new rule governing the sealing of appellate court records, as is the sealing of transcripts of public proceedings conducted below.

Effective Jan. 1, Rule 12.5 was added to the California Rules of Court. It provides, in pertinent part:

(a) [Applicability]

(1) This rule applies to sealed records and to records proposed to be sealed on appeal….

(2) This rule does not apply to records that are required to be kept confidential by law.

(b) [Definitions]

(1) “Record.” Unless the context indicates otherwise, “record” as used in this rule means all or a portion of any document, paper, exhibit, transcript, or other thing filed or lodged with the court.

….

(1) A record ordered sealed by the trial court that is a part of the record before the reviewing court must be filed under seal in the reviewing court and must remain sealed unless the reviewing court orders otherwise.

(2) The reviewing court may examine a sealed record.

(3) If all or any portion of the record before the reviewing court was sealed by the trial court, a party must include in the record the following:

(A) The sealing order;

(B) The motion to seal the record; and

(d) [Motions to unseal]

(1) A party or member of the public may file a motion to unseal a record filed under seal. If necessary to preserve confidentiality, the motion, any opposition, and any supporting documents must be filed in both a public redacted version and a sealed complete version.

(2) If the reviewing court on its own motion proposes to order the unsealing of a record filed under seal, the court must give notice of the proposed unsealing to the parties. A party may file opposition to the proposed unsealing within 10 days after the court’s notice is filed or within the time the court orders.

(e) [Records not sealed by the trial court]

(1) A record that was filed or lodged publicly in the trial court and was not ordered sealed by that court must not be filed under seal in the reviewing court.

(2) A record that was not previously filed in the trial court must not be filed under seal without a reviewing court order.

(A) The court must not permit a record to be filed under seal based solely upon the agreement or stipulation of the parties.

(B) A party requesting that a record be filed under seal must file a motion for a reviewing court order to file the record under seal.

….

Rule 243.1, applicable to trial courts, requires these findings, mandated by NBC Subsidiary:

(d) [Express findings required to seal records] The court may order that a record be filed under seal only if it expressly finds that:

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

(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) [Scope of the order]

(1) An order sealing the record must (i) specifically set forth the factual findings that support the order, and (ii) direct the sealing of only those documents and pages—or, if reasonably practicable, portions of those documents and pages—that contain the material that needs to be placed under seal. All other portions of each documents or page must be included in the public file.

….

•In sealing documents (such as the complaint and the judgment) which the Superior Court had not sealed, Div. Seven violated Rule 12.5(e)(1) which provides: “A record that was filed…in the trial court and was not ordered sealed by that court must not be filed under seal in the reviewing court.”

•In sealing reporters’ transcripts of public proceedings, the appeals court breached Rule 12.5(e)(2). These are records “not previously filed in the trial court” which may be filed in the appellate court only after an examination and the making of findings under Rule 243.1(d)-(e). It is unimaginable that if the appellate court did independently review such transcripts it could find a basis for confidentiality. How could there be an “overriding interest” in sealing a transcript of what was said in a public session of a court, with anyone at liberty to wander in and listen to the proceeding? The United States Supreme Court observed in 1975 in Cox Broadcasting Corp. v. Cohn, 420 U.S. 469, that “the interests in privacy fade when the information involved already appears on the public record.” Likewise, the interests in privacy fade when the information involved already has been divulged in public proceedings. As the First District Court of Appeal said in Sipple v. Chronicle Publishing Co. (1984) 154 Cal.App.3d 1040, “the cases explain that there can be no privacy with respect to a matter which is already public…or which has previously become part of the ‘public domain.’ ”

•The court’s sealing of the appellate briefs also defied Rule 12.5(e)(2). That rule relates to “records” not sealed by the trial court. Obviously, the appellate briefs were not sealed by the trial court…the question being whether they are “records.” Ordinarily, there’s a contradistinction between the “record” and “briefs.” Indeed, Part II of the Rules on Appeal deals with “Record on Appeal” while Part III relates to “Briefs”—and according to a common understanding of terms, the “record” relates to papers filed in the trial court while the “briefs” are filed in the appellate court after the record is complete. However, for purpose of Rule 12.5, “record” is defined in para. (b) as including any “document” or “paper” filed in the Court of Appeal. Moreover, subd. (e)(2) says: “A record that was not previously filed in the trial court must not be filed under seal without a reviewing court order.” There cannot be a “record…not previously filed in the trial court” if “record” is defined in terms of documents or papers that were filed in the trial court. Accordingly, the “record,” for purposes of Rule 12.5, does include the appellate briefs. That means that under Rule 12.5(e)(2)(C), briefs may not be sealed absent an application of the NBC Subsidiary/Rule 243.1 standards. If the briefs in Disney are examined under those standards, it is inconceivable that the briefs will remain totally concealed from the press and public, though publicly filed versions might contain portions blotted out.

A further question arises as to whether the sealing of the opinion was governed by Rule 12.5. I doubt it. While the opinion was a “document” and was “filed,” I question whether a sealing of an appellate court’s opinion was contemplated by the rule.

The rule defines the record in terms of something “filed” or “lodged.” A court never lodges anything with itself—only a party does that. The rule does not allude to any sua sponte actions, and speaks only in terms of what parties may or must do. It appears to relate only to records filed by parties.

The sealing an opinion by a state court in California is so irregular—indeed, weird—that it cannot be assumed, absent language indicating to the contrary, that this prospect is within the contemplation of the rule.

Whether this is an accurate assessment or not, the sealing of an opinion indisputably is subject to the requirements of NBC Subsidiary—and that case requires that an order for secrecy be narrowly tailored to satisfy an overriding need. By no stretch of the imagination could an order for secrecy as to every single sentence in an opinion—including recitations of matters of public record, undisputed facts, and legal propositions—be said to conform to that standard.

What about the matter that was sealed in the trial court? Under Rule 12.5(c)(1), that portion of the record must be filed under seal. A reviewing court “may” look at those papers (Rule 12.5(c)(2)) and “on its own motion” may unseal them after receiving input from the parties (Rule 12.5(d)(2)).

There’s nothing in the rule rendering a review of the sealed records mandatory.

Nonetheless, where—as in Disney—it is apparent from the face of the sealing order that improper procedures were followed in the trial court which in all probability resulted in secrecy being attached to documents to which the public should have been allowed access, the justices surely are remiss if they do not undertake an examination of those records.

The order required the parties to file under seal anything containing or alluding to a document proclaimed by a party to be “Confidential.” That violated Los Angeles Superior Court Rule 7.19 which requires a “document-by-document” review to determine if “[s]ecrecy is in the public interest.” That rule “is essentially an antisecrecy provision,” as Acting Justice (now Justice) Robert Mallano observed in Stadish v. Superior Court (1999) 71 Cal.App.4th 1130. The fact that it has been bypassed with frequency does not excuse any specific breach of it.

Even if Rule 7.19 had not existed when Janavs made her 1998 order—and if the order had in fact been made completely in conformity with the rules—that order still could not validly be relied upon for maintaining the records under seal in the Court of Appeal in 2001. The order clashes with the dictates of the California Supreme Court’s 1999 decision in NBC Subsidiary, which is predicated on federal constitutional precepts.

It is the Court of Appeal which has control over the records residing in the Court of Appeal. As observed in Estate of Hearst (1977) 67 Cal.App.3d 777, “Clearly, a court has inherent power to control its own records….” If those records are being wrongfully withheld from the public, it is simply no answer to say that a Los Angeles Superior Court judge had sealed them.

It was a deputy clerk in the Court of Appeal who last week told me I could not see the file in Agency for the Performing Arts v. The Walt Disney Company—not Dzintra Janavs. That clerk is under the control of the Court of Appeal.

Rule 12.5 presumes the correctness of a sealing order made below. However, where the trial court order was not made pursuant to Rule 243.1, or in conformity with like procedures (such as those mandated by Local Rule 7.19), any such presumption cannot validly be made, and it is incumbent upon the appellate court to undertake an examination of the record to determine the appropriateness of the public access being denied.