Tips from the Bench

Sealing Documents in Family Court and Other Confidentiality Provisions

by Judge Maureen McKnight

Multnomah County Circuit Court

 

Last month Judge Bushong provided some tips for filing documents under seal. He started with the foundational "open courts" provision of the Oregon Constitution to remind us that the default position is against sealing and that legal authority must exist for blocking public view. He then progressed to the Uniform Trial Court Rules and Supplemental Local Rules in laying out the procedural requirements for seeking an order to seal. My article has two main points: (1) all the authority Judge Bushong cites applies to family court matters and (2) Oregon statutes specifically allow for sealing certain information from public view in family law cases. Practitioners need to know these provisions and follow the procedural requirements: sealing documents or information because it is "within the equitable powers of the Court" or "in the best interests of the children" or "based on stipulation" is simply not sufficient.

On the first point, Judge Bushong wrote of UTCR 5.160, which requires practitioners requesting sealing to set out (1) the statutory authority for sealing the documents, (2) the reasons for restricting public view, and (3) a description of the documents sought to be sealed. This uniform trial court rule applies in family court. Similarly, SLR 5.165 about which Judge Bushong also wrote applies in family court (except for the subsection re a motions judge). This rule was effective February 1 and addresses stipulated protective orders seeking to preserve the confidentiality of documents one or more of the parties deem "confidential." His point was that proposed stipulated protective orders requiring the courts to automatically seal documents designated as "confidential" will not be signed based solely on the parties' agreement. Parties must instead include in their proposed protective orders a specific paragraph set out in rule that makes clear a motion and further order of the court is required before sealing may occur. SLR 8.019 specifically makes sister rule 5.165 applicable in family court. Note that the court "will return unsigned any proposed protective orders that do not comply with this requirement." The time to change your templates is now.

A variety of family law statutes and rules do provide authority for keeping information from public view, this because of the multitude of safety and personal identity and financial information that is inherent in these cases. Practitioners are probably most familiar with UTCR 2.130, the "CIF" or Confidential Information Form process. No court order is needed here because the rule specifically requires that litigants in family law cases always include the following information in a separate form: a party's or a party's child's Social Security number; date of birth; driver license number; former legal names; and employer's name, address, and telephone number. Lawyers may also be familiar with UTCR 2.110, which provides a method to segregate and redact out from public view the information that was protected by UTCR 2.130 or UTCR 2.100 (see next section) but was mistakenly not filed in a CIF or redacted and therefore appears in the public record. Finally, it is also likely practitioners are familiar with ORS 18.042(2), which requires that money award sections in judgments include only the final four digits of the Social Security number and the driver license number of each judgment debtor. Again, no court order is needed to provide just limited information because the statute calls universally for this limitation.

                Practitioners may be less familiar with the following authority, each of which calls for keeping certain information out of public view.

a.            UTCR 2.100 authorizes "protected personal information" to be kept out of public view in any matter, not just family law cases. "Protected personal information" within the meaning of this rule means facts that would identify a person or a person's financial activities. The rule does not authorize sealing of entire documents but only the details of financial accounts and transactions as well as personal identity facts. Unlike the CIF process, this rule requires a requesting affidavit and the approving signature of the trial court administrator. UTCR 5.160 and SLR 8.019 are inapplicable.

b.            ORS 25.011 This statute allows persons who must provide an "address" under any proceeding in ORS chapters 25, 106-110, and 416 to use a residence, mailing, or contact address in the same state as the person's home. This statute does not authorize sealing in that it does not require the person to provide the private information at all but instead allows the substitution of a contact address into the public record whenever a residential address is otherwise required.

c.            ORS 109.727 Family law practitioners routinely provide in petitions and modification motions information regarding the location and caregivers of children for the five years prior to filing. Subsection 5 of this states that if the health, safety or liberty of a party or child would be jeopardized by disclosure of identifying information, the information must be sealed and may not be disclosed to the other party or the public except after hearing. This is a situation in which UTCR 5.160 and SLR 8.01 apply.

d.            ORS 25.020(8)(d) Support orders must contain a number of particular items

of identifying information. Some of this information is already protected by the CIF process but other information required by this section for support orders may be sealed on a finding, even a ex parte one, that the "health, safety, or liberty of a party or child would unreasonably be put at risk by disclosure of this information." Significantly, not just the specified items for a support award but also "other information concerning a child or party to a paternity or support proceeding" can be sealed under this section by court order made after the requisite finding - and compliance with UTCR 5.160 and SLR 8.019. This statute is required by federal child support law and a corollary exists for the administrative process in OAR 137-055-1160.

e.            ORS 110.375 This provision is the analog of 25.020 for proceedings under the Uniform Interstate Family Support Act (UIFSA). Again, UTCR 5.160 and SLR 8.019 apply.

The contours of information that can be sealed in family law matters are broad and are largely constituted by personally identifying facts and financial facts. Yet if the information you want to protect does not fall within any of the descriptions set out in statute or rule, read the cases under the constitutional "open courts" provision. Try to develop (or rebut) an argument grounded in a context in which our appellate courts may have recognized a non-absolute application of "openness." Not all is well-settled in this arena but a researched motion will carry you much further than a simple "equitable principles" argument.