MISSISSIPPI LEGISLATURE

1997 Regular Session

To: Judiciary B

By: Representative Green (72nd)

AN ACT TO PROVIDE THAT CERTAIN ACTIONS RELATING TO PUBLIC HAZARDS AND CERTAIN OTHER COURT RECORDS SHALL NOT BE CONCEALED; TO DEFINE PUBLIC HAZARD AND COURT RECORDS FOR THE PURPOSES OF THIS ACT; TO PROVIDE THAT A COURT MAY NOT ENTER A JUDGMENT WHICH CONCEALS A PUBLIC HAZARD; TO PROVIDE STANDING FOR CERTAIN PERSONS; TO PROVIDE FOR AN ACTION FOR DECLARATORY JUDGMENT; TO PROVIDE THAT COURT RECORDS ARE PRESUMED TO BE OPEN UNLESS SPECIFICALLY EXEMPTED; TO PROVIDE FOR THE SEALING OF COURT RECORDS UPON A PARTY'S WRITTEN MOTION; TO PROVIDE FOR HEARINGS AND THE POSTING OF NOTICES RELATING TO THE SEALING OF COURT RECORDS; TO PROVIDE FOR TEMPORARY SEALING ORDERS; TO PROVIDE THAT COURT RECORDS MAY BE SEALED OR UNSEALED BY COURT ORDER; TO PROVIDE FOR CONTINUING JURISDICTION; TO PROVIDE FOR APPEALS; TO CLARIFY THE APPLICATION OF THIS ACT; TO PROVIDE FOR CERTAIN EXEMPTIONS FROM THE PROVISIONS OF THIS ACT; AND FOR RELATED PURPOSES.  

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:

SECTION 1. (1) As used in this section, "public hazard" means an instrumentality, including but not limited to any device, instrument, person, procedure, product, or a condition of a device, instrument, person, procedure or product, that has caused and is likely to cause injury.

(2) Except as otherwise provided in this section, no court shall enter an order or judgment which has the purpose or effect of concealing a public hazard or any information concerning a public hazard, nor shall the court enter an order or judgment which has the purpose or effect of concealing any information which may be useful to members of the public in protecting themselves from injury which may result from the public hazard.

(3) Any portion of an agreement or contract which has the purpose or effect of concealing a public hazard, any information concerning a public hazard, or any information which may be useful

to members of the public in protecting themselves from injury which may result from the public hazard, is void, contrary to public policy and may not be enforced.

(4) Trade secrets as defined in Section 75-26-1 which are not pertinent to public hazards shall be protected pursuant to Section 75-26-1 et seq.

(5) Any substantially affected person, including but not limited to representatives of news media, has standing to contest an order, judgment, agreement or contract that violates this section. A person may contest an order, judgment, agreement or contract that violates this section by motion in the court that entered the order or judgment, or by bringing a declaratory judgment action.

(6) 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. If the court finds that the information or materials or portions thereof consist of information concerning a public hazard or information which may be useful to members of the public in protecting themselves from injury which may result from a public hazard, the court shall allow disclosure of the information or materials. If allowing disclosure, the court shall allow disclosure of only that portion of the information or materials necessary or useful to the public regarding the public hazard.

SECTION 2. Court records may not be removed from court files except as permitted by statute or rule. No court order or opinion issued in the adjudication of a case may be sealed. Other court records, as defined in this act, are presumed to be open to the general public and may be sealed only upon a showing of all of the following:

(a) A specific, serious and substantial interest which clearly outweighs:

(i) This presumption of openness;

(ii) Any probable adverse effect that sealing will have upon general public health or safety.

(b) No less restrictive means that sealing records will adequately and effectively protect the specific interest asserted.

SECTION 3. For purposes of this act, "court records" means:

(a) All documents of any nature filed in connection with any matter before any civil court, except:

(i) Documents filed with a court in camera, solely for the purpose of obtaining a ruling on the discoverability of such documents;

(ii) Documents in court files to which access is otherwise restricted by law;

(iii) Documents filed in a domestic relations action which are declared to be confidential or privileged.

(b) Settlement agreements, not filed of record, excluding all reference to any monetary consideration, that seek to restrict disclosure of information concerning matters that have a probable adverse effect upon general public health or safety, or the administration of public office, or the operation of government.

(c) 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.

SECTION 4. Court records may be sealed only upon a party's written motion, which shall be open to public inspection. 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 court records; 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 court 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 Mississippi.

SECTION 5. 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 (14) days after the motion is filed and notice is posted. Any party may participate in the hearing. Nonparties may intervene as a matter of right for the limited purpose of participating in the proceedings, upon payment of the fee required for filing a plea in intervention. The court may inspect records in camera when necessary. The court may determine a motion relating to sealing or unsealing court records in accordance with this act and as prescribed by law.

SECTION 6. A temporary sealing order may issue on motion and notice to any parties who have answered in the case upon a showing of compelling need from 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. A temporary sealing order shall set the time for the hearing required by Section 5 of this act and shall direct that the movant immediately give the public notice required by Section 4 of this act. The court may modify or withdraw any temporary order upon motion by any party or intervenor, notice to all parties, and hearing conducted as soon as 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 5 of this act.

SECTION 7. 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 2 of this act 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 be 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.

SECTION 8. 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 or 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 2 of this act shall always be on the party seeking to seal records.

SECTION 9. Any order (or portion of an order or judgment) relating to sealing or 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.

SECTION 10. Access to documents in court files not defined as court records by this act remains governed by existing law. The provisions of this act do not apply to any court records sealed in an action in which a final judgment has been entered before July 1, 1997. The provisions of this act apply to cases already pending on July 1, 1997, only with regard to:

(a) All court records filed or exchanged after July 1, 1997; or

(b) Any motion to alter or vacate an order restricting access to court records, issued before July 1, 1997.

SECTION 11. The provisions of this act shall not be construed to conflict with, amend, repeal or supersede any constitutional or statutory law or decision of a court of this state or the United States which, on July 1, 1997, or thereafter, specifically declares a court record to be confidential or privileged, or provides that a court record shall be exempt from the provisions of this act.

SECTION 12. This act shall take effect and be in force from and after July 1, 1997, and shall apply to causes of action accruing on or after July 1, 1997, except as otherwise provided by Section 10 of this act.