(1) Rules 2.550-2.551 apply to records sealed or proposed to be sealed by court order.
(2) These rules do not apply to records that are required to be kept confidential by law.
(3) These rules do not apply to discovery motions and records filed or lodged in connection with discovery motions or proceedings. However, the rules do apply to discovery materials that are used at trial or submitted as a basis for adjudication of matters other than discovery motions or proceedings.
(Subd (a) amended effective January 1, 2007.)
As used in this chapter:
(1) "Record." Unless the context indicates otherwise, "record" means all or a portion of any document, paper, exhibit, transcript, or other thing filed or lodged with the court, by electronic means or otherwise.
(2) "Sealed." A "sealed" record is a record that by court order is not open to inspection by the public.
(3) "Lodged." A "lodged" record is a record that is temporarily placed or deposited with the court, but not filed.
(Subd (b) amended effective January 1, 2016; previously amended effective January 1, 2007.)
(c) Court records presumed to be open.
Unless confidentiality is required by law, court records are presumed to be open.
(d) Express factual findings required to seal records.
The court may order that a record be filed under seal only if it expressly finds facts that establish:
(1) There exists an overriding interest that overcomes the right of public access to the record;
(2) The overriding interest supports sealing the record;
(3) A substantial probability exists that the overriding interest will be prejudiced if the record is not sealed;
(4) The proposed sealing is narrowly tailored; and
(5) No less restrictive means exist to achieve the overriding interest.
(Subd (d) amended effective January 1, 2004.)
(e) Content and scope of the order.
(1) An order sealing the record must:
(A) Specifically state the facts that support the findings; and
(B) Direct the sealing of only those documents and pages, or, if reasonably practicable, portions of those documents and pages, that contain the material that needs to be placed under seal. All other portions of each document or page must be included in the public file.
(2) Consistent with Code of Civil Procedure sections 639 and 645.1, if the records that a party is requesting be placed under seal are voluminous, the court may appoint a referee and fix and allocate the referee's fees among the parties.
(Subd (e) amended effective January 1, 2007; previously amended effective January 1, 2004.)
Rule 2.550 amended effective January 1, 2016; adopted as rule 243.1 effective January 1, 2001; previously amended effective January 1, 2004; previously amended and renumbered as rule 2.550 effective January 1, 2007.
Advisory Committee Comment
This rule and rule 2.551 provide a standard and procedures for courts to use when a request is made to seal a record. The standard is based on NBC Subsidiary (KNBC-TV), Inc. v. Superior Court (1999) 20 Cal.4th 1178. These rules apply to civil and criminal cases. They recognize the First Amendment right of access to documents used at trial or as a basis of adjudication. The rules do not apply to records that courts must keep confidential by law. Examples of confidential records to which public access is restricted by law are records of the family conciliation court (Family Code, § 1818(b)), in forma pauperis applications (Cal. Rules of Court, rules 3.54 and 8.26), and search warrant affidavits sealed under People v. Hobbs (1994) 7 Cal.4th 948. The sealed records rules also do not apply to discovery proceedings, motions, and materials that are not used at trial or submitted to the court as a basis for adjudication. (See NBC Subsidiary, supra, 20 Cal.4th at pp. 1208-1209, fn. 25.)
Rule 2.550(d)-(e) is derived from NBC Subsidiary. That decision contains the requirements that the court, before closing a hearing or sealing a transcript, must find an "overriding interest" that supports the closure or sealing, and must make certain express findings. (Id. at pp. 1217-1218.) The decision notes that the First Amendment right of access applies to records filed in both civil and criminal cases as a basis for adjudication. (Id. at pp. 1208-1209, fn. 25.) Thus, the NBC Subsidiary test applies to the sealing of records.
NBC Subsidiary provides examples of various interests that courts have acknowledged may constitute "overriding interests." (See id. at p. 1222, fn. 46.) Courts have found that, under appropriate circumstances, various statutory privileges, trade secrets, and privacy interests, when properly asserted and not waived, may constitute "overriding interests." The rules do not attempt to define what may constitute an "overriding interest," but leave this to case law.