sealing, civil court, court, records, sealing court records, sealing records, domestic abuse, restraining orders, nuisance forfeiture, nuisance, forfeiture, prostitution, drugs, gambling, Colorado Springs, Colorado, El Paso County, courts, court, lawyer, attorney

The most common causes giving rise to a client requesting that civil court records be sealed:

        Hearing is substantially similar to hearing in a complaint to seal criminal justice records. The burdens upon the proponent are similar.

        A trial court may limit access to court files upon motion of any party and upon finding that the harm to the privacy of a person in interest outweighs the public interest. Common law provides for a balancing testing between individual privacy concerns, public safety, public interest of free access, and public interest in fair and just operation of the court system. The balancing of the factors for and against access is a decision committed to the discretion (judgment) of the trial court.

        The burden of proof in that balance to establish that the harm to privacy interest outweighs the public interest in the openness of court files falls upon the proponent of the sealing order. Whether to seal a court file is a complex legal issue because sealing vs. open records evokes constitutional access to the courts as a protection for our freedoms. Although not impossible, sealing is an uphill battle for there is a strong presumption in favor of open courts. This issue is similar to "gag" orders and open vs. closed courtroom - public access to proceedings.

        If the Court rules favorably to seal, the issue remains what portion of the record should be sealed to tailor the order to serve the privacy interests. In domestic abuse restraining order cases, due to the fact a mere allegation raises the specter of severe consequences, it is this attorney's position that the entire court record and all CBI central registry domestic abuse records must be sealed to protect the client. Mere disclosure of domestic abuse allegation litigation may be sufficient to inflict harm.

        Major tobacco companies, major banks, celebrities, rape victims, law enforcement agencies, governmental officials and others have brought litigation involving settlement or other privacy claims involving societal concerns in an attempt to maintain privacy. Electronic and print news media have been active in litigating access to court records. As you might well imagine, news media have been aggressive proponents of open courts / records, and they have the financial resources to create appellate opinions. A plethora of cases exist at all levels of federal and state courts.

Some of the issues or law which may be addressed:

1. C.R.Civ.P, 121 §1-5 Limitation of Access to Court Files

2. CRS 24-72-201, et. seq. Colorado Open Records Act

3. Freedom of Information Act

4. First and Fourteenth Amendment Right of Access to Court Records

5. Right of Privacy

6. Inherent Power of the Court to Seal Records and

7. Common Law Right of Access to Court Proceedings and Records

8. Analogous Caselaw - Sealing Criminal Records

9. CRS 13-14-102 Civil restraining orders. Domestic abuse restraining orders

10. CRS 18-6-803.7 Central registry of restraining orders - creation Domestic abuse central registry

11. CRS 13-14-101 Definitions. Abuse of the elderly, domestic abuse and stalking

        If sealing is granted, service of the order is also similar to a case involving sealing of criminal justice records.  Again, the safest course is to personally serve a certified copy of the sealing order upon each custodian of records - in a civil sealing case that would be the court clerk and the CBI Central Registry.  The major difference in service is that sealing civil records involves fewer agencies to serve. 

        Colorado does not expunge (shred, burn or otherwise destroy) the court file.  When sealed, the file (or the relevant ordered portion thereof) is physically sealed with special tape which includes written notice that the documents under seal may not be opened without a court order.  The tape is distinguishable - similar to the "police line - do not cross" tape most people have seen on TV.  If the file itself is sealed, the court clerks will not give the file to a member of the public without a court order.

        A mechanism exists for unsealing.  Upon notice to all parties of record, and after hearing, an order limiting access may be reviewed by the court at any time on its own motion or upon the motion of any person. C.R.Civ.P. 121 §1-5(4)

        Jurisdictions are split regarding the burden pertaining to unsealing court records, in particular settlement agreements. I believe the majority of jurisdictions place the burden to overcome the open records presumption upon the litigant who sought and sealed records, however the federal second circuit has placed the burden upon the litigant seeking to unseal.  Regardless of who bears the burden, unsealing is unlikely, but once sealed does not guarantee forever sealed.

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