Rule 8.46. Sealed records
This rule applies to sealed records and records proposed to be sealed on appeal and in original proceedings, but does not apply to records required to be kept confidential by law.
(Subd (a) amended effective January 1, 2007; previously amended effective January 1, 2006.)
(1)"Record" means all or part of a document, paper, exhibit, transcript, or other thing filed or lodged with the court.
(2)A "sealed" record is a record closed to public inspection by court order.
(3)A "lodged" record is a record temporarily deposited with the court but not filed.
(c) Record sealed by the trial court
If a record sealed by the trial court is part of the record on appeal:
(1)The sealed record must be filed under seal in the reviewing court and remain sealed unless that court orders otherwise under (f).
(2)The record on appeal must include:
(A)The motion or application to seal;
(B)All documents filed in the trial court supporting or opposing the motion or application; and
(C)The order sealing the record.
(3)The reviewing court may examine the sealed record.
(Subd (c) amended effective January 1, 2007; previously amended effective January 1, 2004.)
(d) 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.
(e) 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 that 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 put the record in an envelope or other appropriate container, seal it, and attach a cover sheet that complies with rule 8.40(c) and labels the contents as "CONDITIONALLY UNDER SEAL."
(4)If necessary to prevent disclosure, any motion or application, any opposition, and any supporting documents must be filed in a public redacted version and lodged in a complete version conditionally under seal. Unless the court orders otherwise, any party that already possesses copies of the records to be placed under seal 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, the clerk must not place the lodged record in the case file but must return it to the submitting party unless that party notifies the clerk in writing within 10 days after the order denying the motion or application that the record is to be filed.
(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 any subsequently filed records or papers.
(Subd (e) amended effective January 1, 2007; previously amended effective July 1, 2002, and January 1, 2004.)
(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. If necessary to preserve confidentiality, the motion, application, or petition; any opposition; and any supporting documents must be filed in both a public redacted version and a sealed complete version.
(3)If the reviewing court proposes to order a record unsealed on its own motion, the court must mail notice to the parties. Any party may serve and file an opposition within 10 days after the notice is mailed or as the court specifies. Any other party may file a response within 5 days after an opposition is filed.
(4)In determining whether to unseal a record, the court must consider the matters addressed in rule 2.550(c)-(e).
(5)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.
(6)If, in addition to the records in the sealed envelope or container, a court has previously ordered the sealing order, 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 effective January 1, 2007; previously amended effective January 1, 2004.)
(g) Disclosure of nonpublic material in public records prohibited
A record filed publicly in the reviewing court must not disclose material contained in a record that is sealed, lodged conditionally under seal, or otherwise subject to a pending motion to file under seal.
(Subd (g) amended effective January 1, 2007.)
Rule 8.46 renumbered effective January 1, 2010; repealed and adopted as rule 12.5 effective January 1, 2002; previously amended effective July 1, 2002, January 1, 2004, and January 1, 2006; previously amended and renumbered as rule 8.160 effective January 1, 2007.
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. The rules do not apply to records that courts must keep confidential by law. Examples of confidential records to which public access is restricted by law are records of the family conciliation court (Fam. Code, § 1818, subd. (b)) and in forma pauperis applications (Cal. Rules of Court, rule 8.26). Except as otherwise expressly provided in rule 8.46, motions in a reviewing court relating to the sealing or unsealing of a record must follow rule 8.54.