(a) Application
This rule applies to sealed records and records proposed to be sealed on appeal and in original proceedings, but does not apply to confidential records.
(Subd (a) amended effective January 1, 2014; previously amended effective January 1, 2006, and January 1, 2007.)
(b) Record sealed by the trial court
If a record sealed by order of the trial court is part of the record on appeal or the supporting documents or other records accompanying a motion, petition for a writ of habeas corpus, other writ petition, or other filing in the reviewing court:
(1) The sealed record must remain sealed unless the reviewing court orders otherwise under (e). Rule 8.45 governs the form and transmission of and access to sealed records.
(2) The record on appeal or supporting documents filed in the reviewing court must also include:
(A) The motion or application to seal filed in the trial court;
(B) All documents filed in the trial court supporting or opposing the motion or application; and
(C) The trial court order sealing the record.
(Subd (b) amended and relettered effective January 1, 2014; adopted as subd (c); previously amended effective January 1, 2004, and January 1, 2007.)
(c) Record not sealed by the trial court
A record filed or lodged publicly in the trial court and not ordered sealed by that court must not be filed under seal in the reviewing court.
(Subd (c) relettered effective January 1, 2014; adopted as subd (d).)
(d) Record not filed in the trial court; motion or application to file under seal
(1) A record not filed in the trial court may be filed under seal in the reviewing court only by order of the reviewing court; it must not be filed under seal solely by stipulation or agreement of the parties.
(2) To obtain an order under (1), a party must serve and file a motion or application in the reviewing court, accompanied by a declaration containing facts sufficient to justify the sealing. At the same time, the party must lodge the record under (3), unless good cause is shown not to lodge it.
(3) To lodge a record, the party must transmit the record to the court in a secure manner that preserves the confidentiality of the record to be lodged. The record must be transmitted separately from the rest of a clerk's or reporter's transcript, appendix, supporting documents, or other records sent to the reviewing court with a cover sheet that complies with rule 8.40(b) if the record is in paper form or rule 8.74(a)(9) if the record is in electronic form, and that labels the contents as "CONDITIONALLY UNDER SEAL." If the record is in paper format, it must be placed in a sealed envelope or other appropriate sealed container.
(4) If necessary to prevent disclosure of material contained in a conditionally sealed record, any motion or application, any opposition, and any supporting documents must be filed in a redacted version and lodged in a complete unredacted version conditionally under seal. The cover of the redacted version must identify it as "Public-Redacts material from conditionally sealed record." In juvenile cases, the cover of the redacted version must identify it as "Redacted version-Redacts material from conditionally sealed record." The cover of the unredacted version must identify it as "May Not Be Examined Without Court Order-Contains material from conditionally sealed record." Unless the court orders otherwise, any party that had access to the record in the trial court or other proceedings under review must be served with a complete, unredacted version of all papers as well as a redacted version.
(5) On receiving a lodged record, the clerk must note the date of receipt on the cover sheet and retain but not file the record. The record must remain conditionally under seal pending determination of the motion or application.
(6) The court may order a record filed under seal only if it makes the findings required by rule 2.550(d)-(e).
(7) If the court denies the motion or application to seal the record, the lodging party may notify the court that the lodged record is to be filed unsealed. This notification must be received within 10 days of the order denying the motion or application to seal, unless otherwise ordered by the court. On receipt of this notification, the clerk must unseal and file the record. If the lodging party does not notify the court within 10 days of the order, the clerk must (1) return the lodged record to the lodging party if it is in paper form, or (2) permanently delete the lodged record if it is in electronic form.
(8) An order sealing the record must direct the sealing of only those documents and pages or, if reasonably practical, portions of those documents and pages, that contain the material that needs to be placed under seal. All other portions of each document or page must be included in the public file.
(9) Unless the sealing order provides otherwise, it prohibits the parties from disclosing the contents of any materials that have been sealed in anything that is subsequently publicly filed.
(Subd (d) amended effective January 1, 2020; adopted as subd (e); previously amended effective July 1, 2002, January 1, 2004, January 1, 2007, January 1, 2016 and January 1, 2019; previously amended and relettered as subd (d) effective January 1, 2014.)
(e) Challenge to an order denying a motion or application to seal a record
Notwithstanding the provisions in (d)(1)-(2), when an appeal or original proceeding challenges an order denying a motion or application to seal a record, the appellant or petitioner must lodge the subject record labeled as conditionally under seal in the reviewing court as provided in (d)(3)-(5), and the reviewing court must maintain the record conditionally under seal during the pendency of the appeal or original proceeding. Once the reviewing court's decision on the appeal or original proceeding becomes final, the clerk must (1) return the lodged record to the lodging party if it is in paper form, or (2) permanently delete the lodged record if it is in electronic form.
(Subd (e) adopted effective January 1, 2019.)
(f) Unsealing a record in the reviewing court
(1) A sealed record must not be unsealed except on order of the reviewing court.
(2) Any person or entity may serve and file a motion, application, or petition in the reviewing court to unseal a record.
(3) If the reviewing court proposes to order a record unsealed on its own motion, the court must send notice to the parties stating the reason for unsealing the record. Unless otherwise ordered by the court, any party may serve and file an opposition within 10 days after the notice is sent, and any other party may serve and file a response within 5 days after an opposition is filed.
(4) If necessary to prevent disclosure of material contained in a sealed record, the motion, application, or petition under (2) and any opposition, response, and supporting documents under (2) or (3) must be filed in both a redacted version and a complete unredacted version. The cover of the redacted version must identify it as "Public-Redacts material from sealed record." In juvenile cases, the cover of the redacted version must identify it as "Redacted version-Redacts material from sealed record." The cover of the unredacted version must identify it as "May Not Be Examined Without Court Order-Contains material from sealed record." Unless the court orders otherwise, any party that had access to the sealed record in the trial court or other proceedings under review must be served with a complete, unredacted version of all papers as well as a redacted version. If a party's attorney but not the party had access to the record in the trial court or other proceedings under review, only the party's attorney may be served with the complete, unredacted version.
(5) In determining whether to unseal a record, the court must consider the matters addressed in rule 2.550(c)-(e).
(6) The order unsealing a record must state whether the record is unsealed entirely or in part. If the order unseals only part of the record or unseals the record only as to certain persons, the order must specify the particular records that are unsealed, the particular persons who may have access to the record, or both.
(7) If, in addition to the record that is the subject of the sealing order, a court has previously ordered the sealing order itself, the register of actions, or any other court records relating to the case to be sealed, the unsealing order must state whether these additional records are unsealed.
(Subd (f) amended and relettered effective January 1, 2019; adopted as subd (f); previously amended effective January 1, 2004, January 1, 2007, and January 1, 2016; previously amended and relettered as subd (e) effective January 1, 2014.)
(g) Disclosure of nonpublic material in public filings prohibited
(1) Nothing filed publicly in the reviewing court-including any application, brief, petition, or memorandum-may disclose material contained in a record that is sealed, lodged conditionally under seal, or otherwise subject to a pending motion to file under seal.
(2) If it is necessary to disclose material contained in a sealed record in a filing in the reviewing court, two versions must be filed:
(A) A public redacted version. The cover of this version must identify it as "Public-Redacts material from sealed record." In juvenile cases, the cover of the redacted version must identify it as "Redacted Version-Redacts material from sealed record."
(B) An unredacted version. If this version is in paper format, it must be placed in a sealed envelope or other appropriate sealed container. The cover of this version, and if applicable the envelope or other container, must identify it as "May Not Be Examined Without Court Order-Contains material from sealed record." Sealed material disclosed in this version must be identified as such in the filing and accompanied by a citation to the court order sealing that material.
(C) Unless the court orders otherwise, any party who had access to the sealed record in the trial court or other proceedings under review must be served with both the unredacted version of all papers as well as the redacted version. Other parties must be served with only the public redacted version. If a party's attorney but not the party had access to the record in the trial court or other proceedings under review, only the party's attorney may be served with the unredacted version.
(3) If it is necessary to disclose material contained in a conditionally sealed record in a filing in the reviewing court:
(A) A public redacted version must be filed. The cover of this version must identify it as "Public-Redacts material from conditionally sealed record." In juvenile cases, the cover of the redacted version must identify it as "Redacted version-Redacts material from conditionally sealed record."
(B) An unredacted version must be lodged. The filing must be transmitted in a secure manner that preserves the confidentiality of the filing being lodged. If this version is in paper format, it must be placed in a sealed envelope or other appropriate sealed container. The cover of this version, and if applicable the envelope or other container, must identify it as "May Not Be Examined Without Court Order-Contains material from conditionally sealed record." Conditionally sealed material disclosed in this version must be identified as such in the filing.
(C) Unless the court orders otherwise, any party who had access to the conditionally sealed record in the trial court or other proceedings under review must be served with both the unredacted version of all papers as well as the redacted version. Other parties must be served with only the public redacted version.
(D) If the court denies the motion or application to seal the record, the party who filed the motion or application may notify the court that the unredacted version lodged under (B) is to be filed unsealed. This notification must be received within 10 days of the order denying the motion or application to seal, unless otherwise ordered by the court. On receipt of this notification, the clerk must unseal and file the lodged unredacted version. If the party who filed the motion or application does not notify the court within 10 days of the order, the clerk must (1) return the lodged unredacted version to the lodging party if it is in paper form, or (2) permanently delete the lodged unredacted version if it is in electronic form.
(Subd (g) amended and relettered effective January 1, 2019; adopted as subd (g); previously amended effective January 1, 2007; previously amended and relettered as subd (f) effective January 1, 2014.)
Rule 8.46 amended effective January 1, 2020; repealed and adopted as rule 12.5 effective January 1, 2002; previously amended and renumbered as rule 8.160 effective January 1, 2007; previously renumbered as rule 8.46 effective January 1, 2010; previously amended effective July 1, 2002, January 1, 2004, January 1, 2006, January 1, 2014, January 1, 2016, and January 1, 2019.
Advisory Committee Comment
This rule and rules 2.550-2.551 for the trial courts provide a standard and procedures for courts to use when a request is made to seal a record. The standard is based on NBC Subsidiary (KNBC-TV), Inc. v. Superior Court (1999) 20 Cal.4th 1178. The sealed records rules apply to civil and criminal cases. They recognize the First Amendment right of access to documents used at trial or as a basis of adjudication. Except as otherwise expressly provided in this rule, motions in a reviewing court relating to the sealing or unsealing of a record must follow rule 8.54.
Subdivision (e). This subdivision is not intended to expand the availability of existing appellate review for any person aggrieved by a court's denial of a motion or application to seal a record.