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The most common causes giving rise to a client requesting that civil court records be sealed:

        Hearing is substantially similar to hearing in a complaint to seal criminal justice records. The burdens upon the proponent are similar.

        A trial court may limit access to court files upon motion of any party and upon finding that the harm to the privacy of a person in interest outweighs the public interest. Common law provides for a balancing testing between individual privacy concerns, public safety, public interest of free access, and public interest in fair and just operation of the court system. The balancing of the factors for and against access is a decision committed to the discretion (judgment) of the trial court.

        The burden of proof in that balance to establish that the harm to privacy interest outweighs the public interest in the openness of court files falls upon the proponent of the sealing order. Whether to seal a court file is a complex legal issue because sealing vs. open records evokes constitutional access to the courts as a protection for our freedoms. Although not impossible, sealing is an uphill battle for there is a strong presumption in favor of open courts. This issue is similar to "gag" orders and open vs. closed courtroom - public access to proceedings.

        If the Court rules favorably to seal, the issue remains what portion of the record should be sealed to tailor the order to serve the privacy interests. In domestic abuse restraining order cases, due to the fact a mere allegation raises the specter of severe consequences, it is this attorney's position that the entire court record and all CBI central registry domestic abuse records must be sealed to protect the client. Mere disclosure of domestic abuse allegation litigation may be sufficient to inflict harm.

        Major tobacco companies, major banks, celebrities, rape victims, law enforcement agencies, governmental officials and others have brought litigation involving settlement or other privacy claims involving societal concerns in an attempt to maintain privacy. Electronic and print news media have been active in litigating access to court records. As you might well imagine, news media have been aggressive proponents of open courts / records, and they have the financial resources to create appellate opinions. A plethora of cases exist at all levels of federal and state courts.

Some of the issues or law which may be addressed:

1. C.R.Civ.P, 121 §1-5 Limitation of Access to Court Files

2. CRS 24-72-201, et. seq. Colorado Open Records Act

3. Freedom of Information Act

4. First and Fourteenth Amendment Right of Access to Court Records

5. Right of Privacy

6. Inherent Power of the Court to Seal Records and

7. Common Law Right of Access to Court Proceedings and Records

8. Analogous Caselaw - Sealing Criminal Records

9. CRS 13-14-102 Civil restraining orders. Domestic abuse restraining orders

10. CRS 18-6-803.7 Central registry of restraining orders - creation Domestic abuse central registry

11. CRS 13-14-101 Definitions. Abuse of the elderly, domestic abuse and stalking
    

        If sealing is granted, service of the order is also similar to a case involving sealing of criminal justice records.  Again, the safest course is to personally serve a certified copy of the sealing order upon each custodian of records - in a civil sealing case that would be the court clerk and the CBI Central Registry.  The major difference in service is that sealing civil records involves fewer agencies to serve. 

        Colorado does not expunge (shred, burn or otherwise destroy) the court file.  When sealed, the file (or the relevant ordered portion thereof) is physically sealed with special tape which includes written notice that the documents under seal may not be opened without a court order.  The tape is distinguishable - similar to the "police line - do not cross" tape most people have seen on TV.  If the file itself is sealed, the court clerks will not give the file to a member of the public without a court order.

        Suits for domestic abuse permanent injunctions / restraining orders are unique from other civil matters and exceed prospective injury to reputation which may be contemplated in generic civil actions. Allegation of domestic abuse can carry not only specific consequences, but stigma.

Potential consequences of open records.

1. Identification as a domestic abuser in the Colorado Bureau of Investigations CBI Central Registry.
           If not purged upon dismissal, central registry records may remain.  Should law enforcement again respond to a person's residence regarding a potential domestic disturbance and the party is identified in the CBI Central Registry as a prior domestic abuser, that fact alone nearly guarantees arrest regardless of the factual circumstances.  CRS 18-6-803.7

2. Should a domestic violence criminal case be subsequently filed, even an unrelated prosecution:
           a.  Filing of a prior lawsuit for a domestic abuse restraining order may impact a prosecutor's view of the pending criminal case and plea offer.
           b.  Attempted use of the offense in any subsequent (later) prosecution for a separate offense - evidence
                    Under the theories of common plan, scheme or design, lack of mistake, guilty knowledge, intent, modus operandi, identity, or motive, prosecutors may seek to introduce the prior domestic abuse restraining order allegations into evidence, even if dismissed.  CRS 18-6-801.5    

3. Open records may affect the ability to adopt, parental responsibility and parenting time in family law cases.

4. Open records may affect the ability to gain or maintain employment, particularly in the health or personal care fields or if carrying a weapon is required.

5. Open records may affect application for higher learning education - application may be impacted by records pertaining to an allegation of domestic abuse seeking injunctive relief.

6. Open records may affect housing. If a records check is run, landlords may deny tenancy out of concern for potential property damage.

7. Open records may affect the ability to form future personal relationships. Prospective future mates may run a records check.

8. Open records may affect firearm acquisition.  Background check is run to purchase a firearm.  Domestic abuse allegation may complicate or delay any such application.  18 USC 921, 18 USC 922, 18 USC 2261, 18 USC 3563, 18 USC 3583.

9. Open records may affect application for concealed weapons permit. Record of domestic abuse allegation may cause delay or denial of an application for concealed weapon permit. Pursuant to CRS 24-33.5-412, when requested by a police chief or sheriff, the CBI has the authority to conduct a criminal history check of an applicant for a permit to carry a concealed weapon, including processing of fingerprints, as provided in CRS 18-12-105.1(2). Said statute mandates a sheriff or chief of police to make an inquiry, including a fingerprint check, into the background of an applicant for a permit to carry a concealed weapon to determine if the applicant would present a danger to others or to himself or herself if the applicant is granted a permit.

10. Open records may affect or delay issuance of a hunting license.

11. Domestic abuse stigma is similar in nature to sexual assault allegations, including special identification as a domestic abuser
    

        A mechanism exists for unsealing.  Upon notice to all parties of record, and after hearing, an order limiting access may be reviewed by the court at any time on its own motion or upon the motion of any person. C.R.Civ.P. 121 §1-5(4)

        Jurisdictions are split regarding the burden pertaining to unsealing court records, in particular settlement agreements. I believe the majority of jurisdictions place the burden to overcome the open records presumption upon the litigant who sought and sealed records, however the federal second circuit has placed the burden upon the litigant seeking to unseal.  Regardless of who bears the burden, unsealing is unlikely, but once sealed does not guarantee forever sealed.

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