H. B. 2213
(By Mr. Speaker, Mr. Chambers, and Delegate Staton)
(Introduced February 19, 1993; referred to the
Committee on the Judiciary. )
A BILL to amend chapter twenty-nine-b of the code of West
Virginia, one thousand nine hundred thirty-one, as amended,
by adding thereto a new article, designated article two,
relating to the establishment of a standard for the sealing
of court records; and providing for penalties for violations
of the provisions contained therein.
Be it enacted by the Legislature of West Virginia:
That chapter twenty-nine-b of the code of West Virginia, one
thousand nine hundred thirty-one, as amended, be amended by
adding thereto a new article, designated article two, to read as
follows:
ARTICLE 2. SEALING COURT RECORDS.
§29B-2-1. Purpose of article.
The Legislature finds that, in order to promote open and
effective government, it is necessary to promote open access to
court records and to only allow sealing of such records in
limited circumstances. Therefore, the purpose of this article isto establish guidelines for the courts of this state to use in
determining whether in the interest of justice the records in a
civil case, including settlements, should be sealed.
§29B-2-2. Definitions.
As used in this article:
(a)"Court records" means:
(1) All writings filed in connection with any matter before
any civil court, except:
(A) Writings filed with a court in camera. solely for the
purpose of obtaining a ruling on the discoverability of such
writings; or
(B) Writings in court files to which access is otherwise
restricted by law.
(2) Settlement agreements, not filed of record excluding all
references to any monetary consideration, which have the purpose
or effect of concealing information or materials concerning
matters that have a probable adverse effect upon the general
public health or safety, or the administration of public office,
or the operation of government.
(3) Discovery, not filed of record, concerning matters that
have a probable adverse effect upon the general public health or
safety, or the administration of public office, or the operation
of government, except discovery in cases originally initiated to
preserve bona fide trade secrets or other intangible property
rights.
(b) "Writing" includes any books, papers, maps, photographs,
cards, tapes, recordings or other documentary materials
regardless of physical form or characteristics.
§29B-2-3. Restrictions on sealing court records.
(a) Court records may not be removed from court files except
as permitted by statute or rule.
(b) No court order or opinion issued in the adjudication of
a case may be sealed.
(c) Except pursuant to the provisions of this article, no
court shall enter an order or judgment which has the purpose or
effect of concealing court records containing information or
materials concerning matters that have a probable adverse effect
upon the general public health or safety, the administration of
public office, or the operation of government.
(d) No court shall enter an order or judgment which has the
purpose or effect of concealing court records containing
information or materials relating to the settlement or resolution
of any claim or action against the state, its agencies, or
subdivisions or against any municipality or constitutionally
created body or commission.
(e) Trade secrets as defined in section one, article
twenty-two, chapter forty-seven of this code which are not
pertinent to information or materials concerning matters which
have a probable adverse effect upon the general public health or
safety, the administration of public office or the operation of
government shall remain protected pursuant to the provisions of
chapter forty-seven of this code.
§29B-2-4. Standard for sealing court records.
Court records, as defined in this article, are presumed to
be open to the general public and may be sealed only upon a
showing of all the following:
(1) A specific, serious and substantial interest which
clearly outweighs:
(A) The presumption of openness;
(B) Any probable adverse effect that sealing will have upon
the general public health or safety, or the administration of
public office, or the operation of government;
(2) No less restrictive means than sealing records will
adequately and effectively protect the specific interest
asserted.
§29B-2-5. Standing to contest the sealing of court records;
motions to unseal court records.
(a) Any person has standing to contest an order or judgment
that has the purpose or effect of concealing information or
materials concerning matters that have a probable adverse effect
upon the general public health or safety, or the administration
of public office, or the operation of government.
(b) A person may contest an order or judgment that violates
the provisions of this article by written motion in the court
that entered such order or judgment, or by bringing a declaratory
judgment in any court of competent jurisdiction.
§29B-2-6. Motions to seal court records; public notice required.
(a) Court records may be sealed only upon a party's written
motion, which shall be open to public inspection.
(b) The movant shall post a public notice at the place where
notices for meetings of county governmental bodies are required
to be posted, stating: That a hearing will be held in open court
on a motion to seal court records in the specific case; that any
person may intervene and be heard concerning the sealing of courtrecords; the specific time and place of the hearing; the style
and number of the case; a brief but specific description of both
the nature of the case and the records which are sought to be
sealed; and the identity of the movant. Immediately after
posting such notice, the movant shall file a verified copy of the
posted notice with the clerk of the court in which the case is
pending and with the clerk of the supreme court of appeals.
§29B-2-7. Hearings on motions to seal or unseal records.
(a) A hearing, open to the public, on a motion to seal court
records shall be held in open court as soon as practicable, but
not less than fourteen days after the motion is filed and notice
is posted. A hearing, open to the public, on a motion to unseal
court records shall be held in open courts as soon as
practicable.
(b) Any party may participate in a hearing on motions to
seal or unseal court records. Nonparties may intervene as a
matter of right for the limited purpose of participating in the
proceeding, upon payment of any fee which may be required by law.
(c) Upon motion and good cause shown by a party attempting
to prevent disclosure of information or materials which have not
previously been disclosed, including, but not limited to, alleged
trade secrets, the court shall examine the disputed information
or materials in camera.
(d) If the court in its discretion finds that the
information or materials or portions thereof which are the
subject of a motion to seal or unseal court records consist of
information concerning matters that have a probable adverse
effect upon the general public health or safety, or theadministration of public office, or the operation of government
and that the requirements of section three of this article have
not been met, then the court shall permit disclosure of the
information or materials.
§29B-2-8. Orders on motions to seal or unseal court records;
temporary sealing orders.
(a) A motion relating to sealing or unsealing court records
shall be decided by written order, open to the public, which
shall state: The style and number of the case; the specific
reasons for finding and concluding whether the showing required
by section three of this article has been made; the specific
portions of court records which are to be sealed; and the time
period for which the sealed portions of the court records are to
remain sealed. The order shall not be included in any judgment
or other order but shall be a separate document in the case;
however, the failure to comply with this requirement shall not
affect its appealability.
(b) A temporary sealing order may issue upon motion and
notice to any and all parties involved in a case upon a showing
of compelling need for specific facts shown by affidavit or by
verified petition that immediate and irreparable injury will
result to a specific interest of the applicant before notice can
be posted and a hearing held as otherwise provided herein. The
temporary order shall set the time for the hearing and shall
direct that the movant immediately give the public notice
required by section five of this article. The court may modify
or withdraw any temporary order upon motion by any party or
intervenor, notice to the parties, and hearing conducted as soonas practicable. Issuance of a temporary order shall not reduce
in any way the burden of proof of a party requesting sealing at
the hearing required by section three of this article.
§29B-2-9. Continuing jurisdiction.
Any person may intervene as a matter of right at any time
before or after judgment to seal or unseal court records. A
court that issues a sealing order retains continuing jurisdiction
to enforce, alter or vacate that order. An order sealing and
unsealing court records shall not be reconsidered on motion of
any party or intervenor who had actual notice of the hearing
preceding issuance of the order, without first showing changed
circumstances materially affecting the order. Such circumstances
need not be related to the case in which the order was issued.
However, the burden of making the showing required by section
three of this article shall always be on the party seeking to
seal records.
§29B-2-10. Appeals.
Any order, or any portion of an order or judgment, relating
to sealing and unsealing court records shall be deemed to be
severed from the case and a final judgment which may be appealed
by any party or intervenor who participated in the hearing
preceding issuance of such order. The appellate court may abate
the appeal and order the trial court to direct that further
public notice be given, or to hold further hearings, or to make
additional findings.
§29B-2-11. Application of article.
Access to documents in court files not defined as court
records by this rule remains governed by existing law. Thisarticle shall not apply to any court records sealed in an action
in which a final judgment has been entered before its effective
date. This article shall apply to cases already pending on its
effective date only with regard to:
(1) All court records filed or exchanged after the effective
date of this article;
(2) Any motion to alter or vacate an order restricting
access to court records, issued before the effective date of this
article.
§29B-2-12. Violation of article; penalties.
Any custodian of any court record who shall willfully
violate the provisions of this article by failing to disclose or
provide any writing, or portion thereof, as set forth in this
article shall be guilty of a misdemeanor and, upon conviction
thereof, shall be fined not less than one hundred dollars nor
more that five hundred dollars, or be imprisoned in the county
jail for not more that ten days, or, in the discretion of the
court, by both such fine and imprisonment.
NOTE: The purpose of this bill is to establish guidelines
for the courts of this state to use in determining whether in the
interest of justice the records in a civil case, including
settlements, should be sealed.