Proposed New Rules Concerning Privacy and Confidentiality of Court Records Invitation for Public Comment:
| Publication year | 2023 |
| Pages | 0212 |
Alabama law provides a statutory presumption that court records are public and accessible to all. See Ala. Code § 36-12-40 ("Every citizen has a right to inspect and take a copy of any public writing of this State, except as otherwise expressly provided by statute. ..."). Alabama also recognizes a common-law right of public access to judicial records. See Holland v. Eads, 615 So. 2d 1012, 1014 (Ala. 1993) ("it is clear that the courts of this country recognize a general right to inspect and copy public records and documents, including judicial records and documents."). Alabama's recognition of these rights of public access date back almost 150 years. See Brewer v. Watson, 61 Ala. 310, 311 (1878) ("[a]n inspection of the records of judicial proceedings kept in the courts of the country, is held to be the right of any citizen."). Holland v. Eads reiterates "[t]he public's right to inspect court records derives from the 'universal policy underlying the judicial systems of this country [that] secrecy in the exercise of judicial power ... is not tolerable or justifiable.'" Id. at 1014 quoting Jackson v. Mobley, 157 Ala. 408, 411-12, 47 So. 590, 592 (1908).
However, there are many recognized exceptions to the general rights of access. Some are statutory,1 others are by judicial decision2 and still others are by rules of procedure.3
Some court records involve factual scenarios such as personal identification information in medical records and photos showing abuses of minors in domestic disputes which at present have no protections against public access even though they obviously should not be available for public use or misuse.
The Alabama Supreme Court's Joint Task Force on Privacy and Confidentiality of Court Records
In recognition of the confusion and inconsistency created by Alabama's hodgepodge of statutes, appellate decisions and rules of procedure, the Chairs of the Supreme Court's Standing Committees on the Rules of Appellate Procedure (Ed Haden of Balch & Bingham in Birmingham) and the Rules of Civil Procedure (Maibeth Porter of Maynard Cooper Gale in Birmingham) created a Joint Task Force4 to study the issue and determine whether Alabama might benefit from a comprehensive set of rules which could bring clarity and consistency to these troubling issues. Under the leadership of Judge Scott Donaldson,5 the Joint Task Force for the past two and one-half years has examined Alabama's 102 (or so) pertinent statutes spread over 84 sections in 27 titles of our Code, our 35 (or so) reported Alabama appellate opinions and the 20 (or so) rules found within the present Rules of Civil Procedure, Rules of Juvenile Procedure, Rules of Judicial Proceedings and Rules of Appellate Procedure. Members of the Joint Task Force also have studied how each of the other 49 states have addressed privacy and confidentiality. We have also reviewed and considered voluminous materials from secondary sources such as Sedona Conferences and materials compiled by the National Civil Justice Institute, among others. Collectively, after review of literally thousands of pages of rules, opinions and secondary sources, we have created a proposed set of rules of court record privacy and confidentiality which we intend to submit to the Justices of the Alabama Supreme Court for review and consideration with the hope the Court will under the powers vested to it through the judicial article adopt this compilation of rules as Alabama law so that all judges, all lawyers and indeed all citizens will know what the rules are, where to find them, and how to go about determining what is and is not publicly accessible.
Request for Comment
The members of the Joint Task Force hope to present the Supreme Court with as comprehensive, thoughtful and correct a proposed list of rules as possible. Accordingly, we invite each reader to give us suggestions, additions, deletions, edits and comments which we on the Task Force collectively will study and determine what to do with. Please email any such input within the next 21 days to dgw@cunninghambounds.com.
Draft Rules of Court Record Privacy and Confidentiality
ARTICLE I. GENERAL PROVISIONS
Rule
101. Scope.
102. Purpose.
103. Definitions.
104. General access rule.
ARTICLE II. EXCLUSIONS AND CONFIDENTIAL INFORMATION
Rule
201. Court records excluded from public access.
202. Confidential information.
ARTICLE III. PROCEDURES
Rule
301. Procedure to seal or otherwise restrict public access to records.
302. Procedure to petition for access to sealed or otherwise restricted records.
303. Procedure to redact information.
ARTICLE IV. FEES
Rule
401. Court fees.
Rule 101. Scope.
This rule applies to all court records in all Alabama Appellate, Circuit, District, Juvenile, Small Claims, Municipal and Probate Courts, regardless of the physical form of the court record, the method of recording the information in the court record or the method of storage of the information in the court record
Rule 102. Purpose.
The purpose of this rule is to provide a comprehensive policy on access to court records. The rule provides for access in a manner that:
(1) Maximizes accessibility to court records,
(2) Supports the role of the judiciary,
(3) Promotes governmental accountability,
(4) Contributes to public safety,
(5) Minimizes risk of injury to individuals,
(6) Protects individual privacy rights and interests,
(7) Protects proprietary business information,
(8) Minimizes reluctance to use the court to resolve disputes,
(9) Makes most effective use of court and clerk of court staff, and
(10) Does not unduly burden judicial officials or court personnel.
The rule is intended to provide guidance to 1) litigants, 2) those seeking access to court records, and 3) judges, court and clerk of court personnel responding to requests for access.
Task Force's Notes
The Alabama Rules of Court Record Privacy and Confidentiality honor and reflect settled Alabama law that every citizen has a right to inspect and take a copy of any public writing of this State, except as otherwise expressly provided by statute. See Ala. Code § 36-12-40. These Rules also honor and reflect the Alabama Supreme Court's unanimous holding in Holland v. Eads, 614 So.2d 1012 (Ala. 1993). that there also is a common-law right of public access to judicial records, except in limited and specifically enumerated exceptions. Holland's observations, which are precedential and binding, require a careful treading when considering the scope of what is or is not accessible as a public record in Alabama's Courts.
Holland v. Eads states:
"The United States Supreme Court has recognized a common law right of public access to judicial records. Nixon v. Warner Communications, Inc., 435 U.S. 589, 98 S.Ct. 1306, 55 L.Ed.2d 570 (1978). " 'It is clear that the courts of this country recognize a general right to inspect and copy public records and documents, including judicial records and documents.' " United States v. Criden, 648 F.2d 814, 819 (3d Cir.1981), quoting Nixon, supra, 435 U.S. at 597, 98 S.Ct. at 1312. In fact, this right of the public to inspect and copy judicial records antedates the United States Constitution. Criden, supra....
It has long been the rule of this State to allow public inspection of judicial records. Brewer v. Watson, 61 Ala. 310, 311 (1878). More than a century ago, this Court held that "[a]n inspection of the records of judicial proceedings kept in the courts of the country, is held to be the right of any *1015 citizen." Id. at 311; see also Ex parte Balogun, 516 So.2d 606, 612 (Ala.1987) (holding that "the public generally has a right of reasonable inspection of public records required by law to be kept, except where inspection is merely out of curiosity or speculation or where it unduly interferes with the public official's ability to perform his duties"); Excise Comm'n of Citronelle v. State ex rel. Skinner, 179 Ala. 654, 657, 60 So. 812, 813 (1912). The public's right to inspect court records derives from the "universal policy underlying the judicial systems of this country [that] secrecy in the exercise of judicial power ... is not tolerable or justifiable." Jackson v. Mobley, 157 Ala. 408, 411—12, 47 So. 590, 592 (1908).
In addition to a common law presumption of permitting public inspection of judicial records, which has been recognized by the United States Supreme Court and by this Court, public access to court records is permitted by statute. Ala. Code 1975, § 36—12—40, grants the public the right to inspect and copy "public writings," which term has been interpreted to include judicial records. Ex parte Balogun, supra; Stone v. Consolidated Publishing Co., 404 So.2d 678, 681 (Ala.1981) (interpreting a "public writing" to be "a record as is reasonably necessary to record the business and activities required to be done or carried on by a public officer so that the status and condition of such business and activities can be known by our citizens"); State ex rel. Kernells v. Ezell, 291 Ala. 440, 442—43, 282 So.2d 266, 268 (1973) (holding that records of the office of the probate judge are "public writings" within the meaning of the predecessor to § 36—12—40 and are "free for examination [by] all persons, whether interested in the same or not"); Excise Comm'n of Citronelle, supra; Brewer, supra.
Limitations of the public's right to inspect "must be strictly construed and must be applied only in those cases where it is readily apparent that disclosure will result in undue harm or embarrassment to an individual, or where the public interest will clearly be adversely affected, when weighed against the public policy considerations suggesting disclosure." Chambers v.
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