Access to records cannot be denied over general ‘embarrassment’

Holding that a trial court could not seal a court record merely because of the “invasion of privacy and resulting embarrassment” that accompanies every lawsuit, the state Supreme Court in Atlanta reversed in mid-September an order sealing court records in a case filed by a woman who claims that she is an illegitimate child of Rankin Smith Sr., the late owner of the Atlanta Falcons football team.

The state’s highest court agreed with the arguments advanced by the Atlanta Journal-Constitution – which publishes Atlanta’s Journal and Constitution newspapers — that before a trial court can restrict access to a court record it must hold hearings and “set forth factual findings that explain how a privacy invasion that may be suffered by a party or parties seeking to seal a record differs from the type of privacy invasion that is suffered by all parties in civil suits.”

Kimberlee Sullivan sued Sun Trust Bank in state court in Atlanta in mid-February 1998. She claimed that she was the illegitimate but acknowledged child of Rankin Smith Sr., the former owner of the Atlanta Falcons football team. Sullivan sought to exhume Smith’s body to establish that she is entitled to a portion of his estate. Sun Trust serves as executor of Smith’s estate.

Sullivan also asked the trial court to limit access to the case files, which the court agreed to do, without holding a hearing, for 30 days. In early March 1998, the Sun Trust Bank notified the court that it supported Sullivan’s request to seal the court records.

Without holding a public hearing, the court signed an order sealing all records in the case until further order of the court. As justification for sealing the records, the order states, “The Court finds that the potential harm to the parties’ privacy clearly outweighs the public interest.”

Five days after the entry of the court’s order, the Atlanta Journal-Constitution company — which was not a party to the underlying action — sought access to the sealed files and requested a hearing on the matter. After the court denied the request without a hearing, the publisher asked the Georgia Supreme Court in Atlanta to review the decision, and the high court agreed.

The Journal-Constitution argued that state court rules require that a court must give reasonable notice and hold a hearing on the question of sealing court records before signing an order restricting access. Furthermore, the publisher argued that court rules require that the court must make specific findings of fact that support sealing the records, but the trial court refused to hold a hearing and did not make any findings of fact that justified such limited access to the records.

Sun Trust argued that the trial court has the discretion to seal the records when it believes that the type of case — here, a dispute concerning an estate — justifies secrecy and that sealing court records discourages the filing of frivolous lawsuits.

The court agreed with the Journal-Constitution and reversed the decision of the trial court in mid-September 1999. In a unanimous opinion written by Justice Leah Ward Sears, the court noted that noncompliance with state court rules, such as “failure to set forth findings of fact that justify the closing of a court record,” require reversal of an order to seal. The court explained that the party seeking to seal records must show that the privacy invasion “clearly outweighs the public’s substantial interest in access to the records.”

After the party seeking to seal the records attempts to meet its burden, the court must weigh the harm to the party’s privacy interest against the harm to the public’s right of access that will result from sealing the records. The trial court “must make factual findings which lead it to conclude as a matter of law that the former clearly outweighs the latter” before it can seal the records, the appellate court held.

The court found that the trial court did not make the necessary factual findings by reciting in its order that it “finds that the potential harm to the parties’ privacy clearly outweighs the public interest.” Noting that civil lawsuits often cause litigants to experience an invasion of privacy and embarrassment, the high court explained that “that fact alone does not permit trial courts to routinely seal court records. . . . [A] trial court must set forth factual findings that explain how a privacy invasion that may be suffered by a party or parties seeking to seal a record differs from the type of privacy invasion that is suffered by all parties in civil suits.”

The court also held that the trial court erred by refusing to hold a hearing on the issue. The hearing requirement is “indispensable to the integrity of the process mandated for limiting access to court records, because ‘justice faces its greatest threat when courts dispense it secretly.’” (In re: Motion of the Atlanta Journal-Constitution)