New guidelines ease access to court records

• The Tennessee Supreme Court adopted a new rule spelling out mandatory procedures for sealing court records.

Jan. 14, 2005 — A new rule adopted by the Tennessee Supreme Court last week will make it harder for parties to shroud civil case records in secrecy, even in certain cases that are settled out of court.

The high court’s action comes two months after a trial judge sealed virtually all records related to 29 settled lawsuits filed in connection with a 2003 Nashville nursing-home fire that killed 16 residents.

The new Rule 1A of the Tennessee Rules of Civil Procedure, which faces legislative approval, says courts records are presumed open and may be sealed only in limited circumstances. Under the new rule, the person seeking to block access to court records must show “a specific, serious and substantial interest” that clearly outweighs both the presumption of openness, and any likely adverse impact that sealing will have on public health or safety. In addition, there must be no less restrictive method besides sealing that will “adequately and effectively protect” the interest asserted.

The rule applies to most civil court-filed documents, as well as to non-filed settlement agreements if they restrict the disclosure of information on matters that likely harm the general public health or safety, public office administration or government operation.

“Prior to the adoption of this rule, there were no written guidelines for judges to use in deciding whether or not to seal, or close, certain court records,” Chief Justice Frank F. Drowota III said in a statement.

Other provisions of Rule 1A require parties seeking a sealing order to notify the public of the hearing on their motion, and require the court to make findings on the record before sealing a record. The order on the motion to seal will be open to the public. The rule also describes the procedure for the media and others who wish to intervene in a motion to seal.

The proposed rule has been submitted to the state legislature, in recess until Jan. 31, according to Connie Clark, director of Tennessee’s Administrative Office of the Courts. The rule likely won’t be acted upon until March, she said, and if passed, would take effect July 1.

Open records advocates hailed the rule change, which the court itself characterized as “significant.”

“This is a giant step in the right direction to making affairs of state courts more public,” Tennessee Coalition for Open Government Executive Director Frank Gibson told The Jackson Sun.

Although the rule change occurs “coincidentally close in time” to the November sealing of the records in the nursing home lawsuits, that highly publicized case “had nothing to do with it,” Clark said. She said the high court’s advisory rules commission recommended rule changes to the court last summer, after studying public access issues for months.

The (Nashville) Tennessean has said it is considering legal action to restore public access to court records in the nursing home case. The new change in policy could help unseal those records, according to a lawyer for the nursing-home plaintiffs.

“Under the new rule, it would be hard for me to imagine that the . . . court records [in that case] would be sealed,” attorney Blair Dunham told The Sun.

According to the Tennessee advisory committee’s comments, Rule 1A is modeled after Texas Rule of Civil Procedure 76a. It “represents a response to an increasing demand for public access to matters that are related to court proceedings and the need to provide courts with a uniform procedure for addressing such issues.”

— KK

© 2005 The Reporters Committee for Freedom of the Press

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