H. B. 2213

(By Mr. Speaker, Mr. Chambers, and Delegate Staton)
(Introduced February 19, 1993; referred to the
Committee on the Judiciary. )

A BILL to amend chapter twenty-nine-b of the code of West Virginia, one thousand nine hundred thirty-one, as amended, by adding thereto a new article, designated article two, relating to the establishment of a standard for the sealing of court records; and providing for penalties for violations of the provisions contained therein.

Be it enacted by the Legislature of West Virginia:
That chapter twenty-nine-b of the code of West Virginia, one thousand nine hundred thirty-one, as amended, be amended by adding thereto a new article, designated article two, to read as follows:
ARTICLE 2. SEALING COURT RECORDS.
§29B-2-1. Purpose of article.
The Legislature finds that, in order to promote open and effective government, it is necessary to promote open access to court records and to only allow sealing of such records in limited circumstances. Therefore, the purpose of this article isto establish guidelines for the courts of this state to use in determining whether in the interest of justice the records in a civil case, including settlements, should be sealed.
§29B-2-2. Definitions.
As used in this article:
(a)"Court records" means:
(1) All writings filed in connection with any matter before any civil court, except:
(A) Writings filed with a court in camera. solely for the purpose of obtaining a ruling on the discoverability of such writings; or
(B) Writings in court files to which access is otherwise restricted by law.
(2) Settlement agreements, not filed of record excluding all references to any monetary consideration, which have the purpose or effect of concealing information or materials concerning matters that have a probable adverse effect upon the general public health or safety, or the administration of public office, or the operation of government.
(3) Discovery, not filed of record, concerning matters that have a probable adverse effect upon the general public health or safety, or the administration of public office, or the operation of government, except discovery in cases originally initiated to preserve bona fide trade secrets or other intangible property rights.
(b) "Writing" includes any books, papers, maps, photographs, cards, tapes, recordings or other documentary materials regardless of physical form or characteristics.
§29B-2-3. Restrictions on sealing court records.
(a) Court records may not be removed from court files except as permitted by statute or rule.
(b) No court order or opinion issued in the adjudication of a case may be sealed.
(c) Except pursuant to the provisions of this article, no court shall enter an order or judgment which has the purpose or effect of concealing court records containing information or materials concerning matters that have a probable adverse effect upon the general public health or safety, the administration of public office, or the operation of government.
(d) No court shall enter an order or judgment which has the purpose or effect of concealing court records containing information or materials relating to the settlement or resolution of any claim or action against the state, its agencies, or subdivisions or against any municipality or constitutionally created body or commission.
(e) Trade secrets as defined in section one, article twenty-two, chapter forty-seven of this code which are not pertinent to information or materials concerning matters which have a probable adverse effect upon the general public health or safety, the administration of public office or the operation of government shall remain protected pursuant to the provisions of chapter forty-seven of this code.
§29B-2-4. Standard for sealing court records.
Court records, as defined in this article, are presumed to be open to the general public and may be sealed only upon a showing of all the following:
(1) A specific, serious and substantial interest which clearly outweighs:
(A) The presumption of openness;
(B) Any probable adverse effect that sealing will have upon the general public health or safety, or the administration of public office, or the operation of government;
(2) No less restrictive means than sealing records will adequately and effectively protect the specific interest asserted.

§29B-2-5. Standing to contest the sealing of court records; motions to unseal court records.

(a) Any person has standing to contest an order or judgment that has the purpose or effect of concealing information or materials concerning matters that have a probable adverse effect upon the general public health or safety, or the administration of public office, or the operation of government.
(b) A person may contest an order or judgment that violates the provisions of this article by written motion in the court that entered such order or judgment, or by bringing a declaratory judgment in any court of competent jurisdiction.
§29B-2-6. Motions to seal court records; public notice required.
(a) Court records may be sealed only upon a party's written motion, which shall be open to public inspection.
(b) The movant shall post a public notice at the place where notices for meetings of county governmental bodies are required to be posted, stating: That a hearing will be held in open court on a motion to seal court records in the specific case; that any person may intervene and be heard concerning the sealing of courtrecords; the specific time and place of the hearing; the style and number of the case; a brief but specific description of both the nature of the case and the records which are sought to be sealed; and the identity of the movant. Immediately after posting such notice, the movant shall file a verified copy of the posted notice with the clerk of the court in which the case is pending and with the clerk of the supreme court of appeals.
§29B-2-7. Hearings on motions to seal or unseal records.
(a) A hearing, open to the public, on a motion to seal court records shall be held in open court as soon as practicable, but not less than fourteen days after the motion is filed and notice is posted. A hearing, open to the public, on a motion to unseal court records shall be held in open courts as soon as practicable.
(b) Any party may participate in a hearing on motions to seal or unseal court records. Nonparties may intervene as a matter of right for the limited purpose of participating in the proceeding, upon payment of any fee which may be required by law.
(c) Upon motion and good cause shown by a party attempting to prevent disclosure of information or materials which have not previously been disclosed, including, but not limited to, alleged trade secrets, the court shall examine the disputed information or materials in camera.
(d) If the court in its discretion finds that the information or materials or portions thereof which are the subject of a motion to seal or unseal court records consist of information concerning matters that have a probable adverse effect upon the general public health or safety, or theadministration of public office, or the operation of government and that the requirements of section three of this article have not been met, then the court shall permit disclosure of the information or materials.

§29B-2-8. Orders on motions to seal or unseal court records; temporary sealing orders.

(a) A motion relating to sealing or unsealing court records shall be decided by written order, open to the public, which shall state: The style and number of the case; the specific reasons for finding and concluding whether the showing required by section three of this article has been made; the specific portions of court records which are to be sealed; and the time period for which the sealed portions of the court records are to remain sealed. The order shall not be included in any judgment or other order but shall be a separate document in the case; however, the failure to comply with this requirement shall not affect its appealability.
(b) A temporary sealing order may issue upon motion and notice to any and all parties involved in a case upon a showing of compelling need for specific facts shown by affidavit or by verified petition that immediate and irreparable injury will result to a specific interest of the applicant before notice can be posted and a hearing held as otherwise provided herein. The temporary order shall set the time for the hearing and shall direct that the movant immediately give the public notice required by section five of this article. The court may modify or withdraw any temporary order upon motion by any party or intervenor, notice to the parties, and hearing conducted as soonas practicable. Issuance of a temporary order shall not reduce in any way the burden of proof of a party requesting sealing at the hearing required by section three of this article.
§29B-2-9. Continuing jurisdiction.
Any person may intervene as a matter of right at any time before or after judgment to seal or unseal court records. A court that issues a sealing order retains continuing jurisdiction to enforce, alter or vacate that order. An order sealing and unsealing court records shall not be reconsidered on motion of any party or intervenor who had actual notice of the hearing preceding issuance of the order, without first showing changed circumstances materially affecting the order. Such circumstances need not be related to the case in which the order was issued. However, the burden of making the showing required by section three of this article shall always be on the party seeking to seal records.
§29B-2-10. Appeals.
Any order, or any portion of an order or judgment, relating to sealing and unsealing court records shall be deemed to be severed from the case and a final judgment which may be appealed by any party or intervenor who participated in the hearing preceding issuance of such order. The appellate court may abate the appeal and order the trial court to direct that further public notice be given, or to hold further hearings, or to make additional findings.
§29B-2-11. Application of article.
Access to documents in court files not defined as court records by this rule remains governed by existing law. Thisarticle shall not apply to any court records sealed in an action in which a final judgment has been entered before its effective date. This article shall apply to cases already pending on its effective date only with regard to:
(1) All court records filed or exchanged after the effective date of this article;
(2) Any motion to alter or vacate an order restricting access to court records, issued before the effective date of this article.
§29B-2-12. Violation of article; penalties.
Any custodian of any court record who shall willfully violate the provisions of this article by failing to disclose or provide any writing, or portion thereof, as set forth in this article shall be guilty of a misdemeanor and, upon conviction thereof, shall be fined not less than one hundred dollars nor more that five hundred dollars, or be imprisoned in the county jail for not more that ten days, or, in the discretion of the court, by both such fine and imprisonment.
NOTE: The purpose of this bill is to establish guidelines for the courts of this state to use in determining whether in the interest of justice the records in a civil case, including settlements, should be sealed.