New Ohio Court Record Access Rules Create Controversy

The Ohio Supreme Court adopted new Superintendence Rules 44 through 47, which govern all Ohio courts concerning access to court records, sealing of records and redacting of information. See Court News, Dec. 22, 2008. The rules are effective May 1, 2009. (Pushed Back to July 1, 2009 – see Press Release)

Of particular importance to attorneys are provisions stating that the parties who file documents are responsible for redacting “personal identifiers” as defined in Sup.R. 44(H). See Justices Adopt Rule that Presume Court Records Statewide are Open to Public – With Some Exceptions Gongwer News, Dec. 22, 2008. “Personal identifiers” include Social Security numbers, except for the last four digits. The parties are to submit the identifying information on a separate form. See Sup.R. 45(D). The information will be accessible only to the court and the parties.

The rules provide a procedure for sealing records and gaining access to sealed records. They provide that a party to a case, or person whom the information is about, may request that the court limit access to case information. The court can declare information “limited public access”, if it finds by clear and convincing evidence that the presumption of allowing public access is outweighed by a higher interest.

In order to gain access to information declared “limited public access” the court must determine by clear and convincing evidence that the public’s right to see court records “is no longer outweighed” by the reason for initially sealing the record. Attorney David Marburger criticized this standard as too high. See David Marburger, Access to Court Records Effectively Denied The Plain Dealer, Dec. 21, 2008; Mark Puente, Ohio Supreme Court Rules Could Make it Harder for You to Search Court Records, The Plain Dealer, Dec. 23, 2008.

The rules also

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state that the courts can limit the number of records that it will provide to a particular person each month unless the person requesting the records “certifies in writing that the requestor does not intend to use or forward the records, or the information contained in them, for commercial purposes.” Attorney Marburger feels this rule could restrict legitimate use and access to records by law firms, reporters of judicial decisions and credit reporting agencies.The new rules also restrict information in juvenile cases which may enable someone to identify the juvenile.

See our prior post Proposed Superintendence Rules Regarding Access to Ohio Court Records , Groups Weigh in on Proposed Ohio Court Privacy Rules, Employment Law Clinic Says “No” to Sale of Criminal Records in Bulk