Presumed Open 

The Tennessee Supreme Court rules on open records.

Last week, the Tennessee Supreme Court adopted the first set of mandatory guidelines determining the status of court records. Enacting a series of rule modifications, the high court deemed that records in civil cases are presumed to be open to the public and may be sealed only in limited circumstances.

The new guideline, Rule 1A, was adopted along with other amendments to the rules of procedure for cases in state trial and appellate courts. "While most of these are technical changes, the adoption of new Rule 1A of the Tennessee Rules of Civil Procedure is a significant change," said Chief Justice Frank Drowota. "Prior to the adoption of this rule, there were no written guidelines for judges to use in deciding whether or not to seal, or close, certain court records." He said the rule was designed to promote openness in court cases involving the government.

The Sealing Court Records rule states that it is "the public policy of this state that the public interests are best served by open courts and by an independent judiciary." The rule applies to all documents filed in cases before any civil court. Under this provision, court records may no longer be removed from court files, and court orders and opinions are presumed to be open. Settlement agreements in these cases were also deemed open records, whether or not they are filed in court. Only the monetary amount of settlements may be kept confidential.

Had Rule 1A been in effect eight years ago the Flyer would not have had to sue the city of Memphis for details of a settlement agreement in a civil rights suit between the city and a University of Memphis student's family. In 1997, the city settled the suit with the family of Adam Pollow for $475,000 but required the family to keep the settlement terms confidential. Pollow died while in police custody. City attorneys denied disclosure of the records on the grounds that they were bound by court order. Two years, and several court appearances later, the Tennessee Court of Appeals ruled in favor of the Flyer.

University of Memphis assistant law professor Stephen Mulroy said the new rule would also greatly affect domestic-relations cases. "Many times in divorce cases litigants have requested to have records closed for one reason or another," he said. "I think [Rule 1A] is a good thing because we need to have uniform guidelines when determining which records are open and which are not. It's better for everybody."

Under the new rule, records may only be sealed in three instances when they might have a "probable adverse effect upon the general public health or safety, or the administration of public office, or the operation of government."

"There should be some protections," Mulroy said. "You don't forfeit your right to privacy because you become a public figure. If there is some kind of reasonable argument [for opening records], then the public's right to know would trump the privacy matter. I'm much more interested in knowing the details of a record that affects the public than knowing the steamy details of a divorce."

For litigants requesting the sealing or unsealing of court records, Rule 1A requires a written public motion, followed by a hearing. During the hearing, the litigants supporting the sealing of records must prove that it is appropriate. Once the status of records is determined in court, litigants may appeal the decision. The appeal becomes separate from the main action in a case, which may continue through the court system. The rule also allows for intervention regarding the records by third parties. A reconsideration to seal records will only be made with proof of changed circumstances.

Rule 1A will be submitted to the state legislature later this month, along with other amendments. If approved, it becomes effective July 1st. State justices decided on the rule after surveying similar rules in other states, specifically Texas. Nine rules of the Tennessee Rules of Procedure were also amended by the court, including actions on subpoenas, entry of judgments, and judgments and costs. •

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