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<\/a>Nearly everyone going through a divorce prefers that the record for his or her case be sealed so it remains private. On the other hand, the public has an interest in protecting the justice system from private arrangements that might compromise the judicial system. And a transparent judicial system available at all times for public inspection ensures that litigants are able to predict how judges will rule in many cases, which helps them negotiate with each other with greater confidence. This, in turn, fosters greater judicial economy.<\/p>\nSo how should judges rule when one of the parties requests that the proceedings in a divorce case be sealed? We have a useful explanation available to us in the form of Ex parte Gentry<\/em>, Case No. 2160155 (Ala. Ct. Civ. App. January 27, 2017). In the midst of a proceeding dealing with a petition for grandparent visitation, the trial court in Jefferson County directed the circuit clerk to \u201cplace this entire case UNDER SEAL\u201d (capitalization in the original). No party moved the court to take this action, no hearing was held on it, and the order provided no reason for the action. On the appeal of the children\u2019s father objecting to the placement of the seal, the grandparents simply responded that the court sealed the case because the cases \u201cinvolve[] minor children and embarrassment or irreparable harm could occur.\u201d<\/p>\nIn its analysis of the arguments on either side dealing the sealing issue, the appeals court quoted extensively from Holland v. Eads<\/em>, 614 So.2d 1012 (Ala. 1993): \u201c\u2018Generally, trials are open to the public. However, public access must be balanced with the effect on the parties.\u2019 Ex parte Balogun<\/em>, 516 So.2d 606, 610 (Ala. 1987). Nevertheless, the decision concerning access to the court records has long been recognized as within the trial court\u2019s discretion. Nixon v. Warner Communications, Inc.<\/em>, 435 U.S. 589, 98 S.Ct. 1306, 55 L.Ed.2d 570 (1978). This does not mean that the trial court\u2019s discretion should be unfettered; rather, it should be governed by legal rules and standards.\u201d<\/p>\nAfter discussing the advantages to the public from openness and freely available court records, the appeals court further quoted Holland: \u201cThere is a presumption in favor of openness, which can be overcome only by clear and convincing evidence that an individual\u2019s privacy interest (as set out above) rises above the public interest in access<\/em>\u201d Holland<\/em>, 614 So.2d at 1016 (emphasis in original).<\/p>\nWith reference to the Gentry<\/em> case, the appeals court observed that the trial court\u2019s order sealing the cases contained no written findings of the need for sealing the records and that \u201cthe wholesale sealing of an entire record is by its nature overbroad . . . Although no party brought a motion seeking to seal any part of the record, we conclude that, under Holland<\/em>, a trial court considering whether to seal documents must hold a hearing at which the parties may present arguments regarding the necessity of sealing specific parts of the record. Any order sealing any portion of the record must contain written findings in compliance with Holland<\/em> that clear and convincing evidence supports a conclusion that the relevant \u201cprivacy interest (as set out [in Holland<\/em>]) rises above the public interest in access.\u201d Holland<\/em>, 614 So.2d at 1016. The appeals court therefore granted the father\u2019s writ of mandamus insofar as it related to the court\u2019s sealing of the case record.<\/p>\nHolland<\/em> and Ex parte Gentry<\/em> are useful in that they clarify the need for a hearing and findings of fact before sealing a family court ruling, but they don\u2019t fully respond to the issue. It\u2019s not at all unusual for both parties in a divorce case to desire for the proceedings to be sealed, so simply giving both parties an opportunity to register objections to sealing is incomplete. Someone needs to take account of and articulate the public interest in full disclosure and comprehensive transparent records. That\u2019s the interest most easily ignored in cases like this.<\/p>\n
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<\/a>Nearly everyone going through a divorce prefers that the record for his or her case be sealed so it remains private. On the other hand, the public has an interest in protecting the justice system from private arrangements that might compromise the judicial system. And a transparent judicial system available at all times for public inspection ensures that litigants are able to predict how judges will rule in many cases, which helps them negotiate with each other with greater confidence. This, in turn, fosters greater judicial economy.<\/p>\n