Probate & Trust Law Section Conference Manual ... - Minnesota CLE

VI. PRIVACY OF COURT RECORDS
1. INTRODUCTION
Privacy may be a high priority for clients and an important concern in regard to asset protection
planning. South Dakota has a comprehensive privacy statute. As a general rule both federal and
state court records are available to the public. 186
2. STATES
Many states have exceptions that allow for the sealing of records.
a. New York
New York follows the general rule that court records are available to the public. 187 New
York recognizes this right under its state constitution, statutes and cases. 188
N.Y. COMP. CODES R. & REGS. tit. 22, section 216.1 provides that a court shall not enter
an order in a civil action, sealing any court records in whole or in part “except upon
written finding of good cause, which shall specify the grounds.” 189
Not the parties’ decision: The New York rule is designed to end the parties’ control over
the sealing decision. The court must weigh the interests of the public’s “right to know”
against the parties’ privacy interests. 190 This is done on a case-by-case basis. The court
must set forth their reason for sealing the documents in writing and limit the sealing only
to those particular documents or groups of documents, and to refrain from sealing entire
files unless absolutely necessary. 191 Consequently, confidentiality is the exception and
not the rule.
i. Two Step Process for Motion to Seal: 192
1. Motion must show “good cause” to seal;
2. After “good cause” is shown court must weigh this against the public
interest to access the court documents;
Please Note: Desire to avoid embarrassment is not sufficient to
overcome the presumption of openness.
a. Factors for Court to Consider:
i. Extent: Information relied on by court in making their
decision;
186 First Amendment to the U.S. Constitution, the public’s qualified right of access to court records and proceedings.
See Press-Enter Co. v. Super. CT. of Cal for the County of Riverside, 478 U.S. 1 (1986); Richmond Newspapers
Inc. v. Virginia, 448 U.S. 555 (1980); Westmoreland v. Columbia Broad Sys. Inc., 752 F. 2d 16 (2d Cir. 1984);
Craig v. Harvey, 331 U.S. 367 (1945); United States v. Amodeo, 44 F. 3d 145 (2nd Cir. 1995).
187 N.Y. COMP. CODES R. & REGS. tit. 22, § 216.1.
188 N.Y. COMP. CODES R. & REGS. tit. 22, § 216.1; New York Constitution Article 1 Section 8, supra.
189 N.Y. COMP. CODES R. & REGS. tit. 22, § 216.1.
190 N.Y. COMP. CODES R. & REGS. tit. 22, § 216.1.
191 N.Y. COMP. CODES R. & REGS. tit. 22, § 216.1.
N.Y. COMP. CODES R. & REGS. tit. 22, § 216.1.
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