Expungement of Criminal Records
| Publication year | 2021 |
| Pages | 0115 |
By Stephen W. Shaw
Why do we have or need an expungement law? Since judicial records are generally considered to be public records, they are usually available for inspection and copying by the public. See, Ex parte Consolidated Publ'g Co., Inc., 601 So. 2d 423 (Ala. 1992). As a public record, anyone with access to the Ala-Court system, or who requests information from municipal court, can obtain information regarding the charges against an individual-even if the charges were erroneous, or voluntarily dismissed by the prosecutor. This could have an effect on potential employment, or it could serve as a basis for declining someone the opportunity to serve as a volunteer.
What is the benefit of an expungement? Succinctly stated in our expungement law: "After the expungement of records ... the proceeding regarding the charge shall be deemed never to have occurred." Ala.Code § 15-27-6 (b) (1975). Further "the petitioner whose record was expunged shall not have to disclose the fact of the record or any matter related thereafter on an application for employment, credit, or other type of application [subject to statutory exceptions]." § 15-27-6 (b).
Overview of Sealed Records, Sealed Cases, And Expungement Cases
First, a quick analysis of cases that led to the need for, and passage of, our expungement law. In Holland v. Eads, 614 So. 2d 1012 (Ala. 1993), the plaintiff filed a motion to intervene in a case seeking to unseal court records in a case in which they had not been a party. The jury returned a verdict, but before the entry of a judgment, the parties reached a settlement. As a part of the settlement agreement, the court dismissed the case with prejudice and sealed the entire court file, including notes and tapes of the court reporter. Two years later, Holland sought to intervene to obtain the trial transcript for use in a similar case against one of the defendants in a separate case. The Alabama Supreme Court noted that there were no comprehensive standards to guide the courts in this state in determining whether to seal a record or reopen a sealed file. Examining different approaches used in other jurisdictions, the Alabama Supreme Court held that the trial court shall not seal records except where a written finding that the moving party has proved by clear and convincing evidence that the information sought to be sealed and met certain specific requirements. The court observed:
We have examined the different approaches used in other jurisdictions. In light of the public policy in favor of public access and the prevailing analysis of this presumption in most American courts, we hold that if a motion to seal is filed, then the trial court shall conduct a hearing. The trial court shall not seal court records except upon a written finding that the moving party has proved by clear and convincing evidence that the information contained in the document sought to be sealed:
(1) constitutes a trade secret or other confidential commercial research or information;1 or
(2) is a matter of national security;2 or
(3) promotes scandal or defamation; or
(4) pertains to wholly private family matters, such as divorce, child custody, or adoption;3 ,4 ,5 or
(5) poses a serious threat of harassment, exploitation, physical intrusion, or other particularized harm to the parties to the action; or
(6) poses the potential for harm to third persons not parties to the litigation.
In 2006, the Alabama Supreme Court urged the Alabama Legislature to consider an expungement law. In Mobile Press Register, Inc., v. Lackey, 938 So. 2d 398 (Ala. 2006), the Mobile Press Register filed suit against the presiding municipal judge and court administrator seeking expunged records. The circuit court entered an order holding that the municipal court had no authority to expunge its records and a permanent injunction prohibiting the court from doing so in the future.
However, the circuit court refused to order the municipal court to grant the plaintiff access to previously expunged files. The supreme court reversed the circuit court's ruling denying the plaintiff access to the expunged records. The court held:
Whether citizens should be entitled to have their criminal arrest...
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