Sunday, May 3, 2015

Sealing of OPRA case turns out to have been in error.

On April 30, 2015, I blogged about the Middlesex County Superior Court's sealing of an Open Public Records Act case.  I visited the Civil Division Manager's Office in New Brunswick on both Thursday, April 30, 2015 and Friday, May 1, 2015 and am happy to report that the matter has been resolved and that Docket No. MID-L-1217-15 is now available and searchable on the Court's Automated Case Management System (ACMS).

Below is my e-mail to Assistant Civil Division Manager Ian Ratzlaff that gives a detailed account of why the file was sealed.  The short story is, however, that it was sealed in error.

May 3, 2015
Ian Ratzlaff, Assistant Division Manager
Middlesex County Superior Court Civil Division
56 Paterson St
New Brunswick, New Jersey
RE: Sealing of Docket No. MID-L-1217-15
Dear Mr. Ratzlaff:
Thank you for your voice-mail on Friday. By copy of this e-mail, I also wish to thank Team Leader Andrew Garval for speaking with me about the captioned matter.
By way of background, on April 15, 2015, I found the captioned Open Public Records Act (OPRA) case on the "daily sheets" maintained in the Civil Division Manager's office.  When I later entered the docket number into the Automated Case Management System (ACMS), I was informed that the file was "sealed."  This prevented me, or any other member of the public, from getting any information regarding the case from the on-line system.  Moreover, had I searched by party name, all information about the case, including its existence, would have been suppressed.
Noting the irony of an OPRA case being sealed, I visited your office on April 30, 2015. The gentleman who assisted me said that he would retrieve the file from Assignment Judge Francis' office, review it and let me know which, if any records, I could inspect. He called me the next day and told me that I could come down to the office and review the entire file.
Upon review, I was able to determine that the matter underlying Docket No. MID-L-1217-15 was filed on March 2, 2015 by the Middlesex County Prosecutors's Office (MCPO) in an attempt to preempt OPRA suits that were later filed against that Office by two newspapers.  The MCPO styled its original filing as a "Motion for a Protective Order."  The manner in which the MCPO labeled its filing apparently caused your office to immediately "seal" the file even though no sealing order had been entered by the court.  One of the newspapers' opposition brief, on-line here, sets forth the facts and procedural history.
After reviewing the matter, I have the following comments:
1. The object of the MCPO filing was to prevent disclosure of an audio recording of a 911 emergency call, not its court filing.  This intent was clear from even a cursory reading of the filed documents.
2. Even if the MCPO had sought to suppress its filing, no order had been entered granting that relief.  According to R.1:38-11, "a court record may be sealed by court order for good cause." (emphasis supplied)  The rule goes on to state that documents in normal civil files "may not be filed under seal absent a prior court order mandating the sealing of such documents."  (emphasis supplied)  Accordingly, even if a party to a lawsuit seeks to have a document sealed, no such sealing shall occur unless and until a court order is signed.
3. Transparency concerns regarding sealed records are exacerbated when, as here, a person who did not have the docket number could not have even determined that the file had been sealed.  During the sealing period, a member of the public who searched for "Middlesex County Prosecutor" in the ACMS would have not discovered the existence of this file.  It is one thing for the court's computer to state that the contents of a file are sealed.  It is quite another for the computer system to not even acknowledge that the sealed file exists.
I understand that sealing this particular file was a result of a clerical error.  Yet, it underscores a need for procedural safeguards to prevent the improper sealing of future cases.  Among these safeguards could be: a) no file is sealed from view in the ACMS absent a court order, and b) a list of all sealed files should be publicly available so that members of the public may know which sealed files exist so that they can challenge the sealing order pursuant to R.1:38-12.

Please review the issues presented and let me know your thoughts.  Thank you for your attention to this matter.
Very truly yours,

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