Editorial
The Tennessean
Jan. 12, 2005

Commitment to openness from state's highest court

            Court records document the meting out of justice. When the public is denied access to those records, it is unable to determine not only how laws are applied and how disputes are settled, but whether judges are protecting the public's well-being.

            Last week, after much study, the Tennessee Supreme Court took a big step toward openness by issuing new guidelines that will govern how and whether a judge in Tennessee can seal a court record in a civil matter.

            No written guidelines have existed before now on the issue of sealing records. As a result, state courts have assumed great leeway in their decisions to seal certain records.

            The proposed guidelines, on the other hand, would remove much of that discretion. The rules say that ''the public interests are best served by open courts and an independent judiciary.'' They say that court records are presumed to be open except in limited circumstances, such as when public health or safety could be harmed by a record's openness, or to maintain the privacy of financial information of individuals or private partnerships. The rules also spell out a process for appealing a court's decision to seal or not seal a record. And they give people who are not participants in a lawsuit the right to object to a decision to seal a record.

            In other words, the proposal assumes that most court records are open, and it puts a strong burden on the courts to demonstrate that a record should be sealed.

            The issue of sealing court records came into sharp focus recently with the initial decision by Davidson County Circuit Judge Barbara Haynes to seal virtually all the records in the 32 lawsuits stemming from the Sept. 25, 2003 nursing home fire in Nashville. The judge maintained that sealing the records protects both the nursing home and the victims' families. Yet sealing the records also deprives the public of information on the cause of the fire, the operation of the home and the adequacy of state regulation.

            The Supreme Court is commended for its diligence on this issue, and for the resulting rule. State law requires any changes in the rules of procedure to be approved by the legislature. As the plan moves to the General Assembly, lawmakers should be as responsible as the court has been.

            The General Assembly's record on openness is marked with hypocrisy. While lawmakers have imposed open meeting and open records requirements on other levels of government, they have exempted themselves from some of those requirements.

            With approval of the court's guidelines, state lawmakers could signal a new commitment to openness at all levels.

            The public pays to operate state courts. It elects the judges who preside over those courts. It lives with the judgments of those courts. Certainly, every so often, a court record needs to be sealed — but that occasion is rare indeed. The new guidelines recognize that the business of the courts is the business of the public.