Opinion
No. KNO FA 03-0128833 S
January 13, 2009
MEMORANDUM OF DECISION ON MOTION TO SEAL FILE (#149)
On May 16, 2008, in the midst of contested postjudgment proceedings involving motions to open and modify a 2004 dissolution decree as to custody and visitation, plaintiff filed this motion to seal the entire file on the basis that an investigation was pending by the Department of Children and Families and that an open hearing on the modification motions would "negatively affect the relationship of all parties involved" and "cause significant undo (sic) stress and discontent." No factual basis for either conclusion is set forth in the motion. Simultaneously, she filed a memorandum of law citing C.G.S. § 46b-11, which confers upon the court the discretion to hear family relations matters in chambers. Her memorandum cites no other authority. In the memorandum she advances the additional arguments that "the welfare of the children and nature of the case require the court sealing this file for the protection of the minor child," and that "the child could suffer additional harm if the allegations the court was to review were made known to the public." These conclusions, also, are offered without supporting factual claims.
On December 4, 2008, this court commenced a hearing on the motions for modification, and issued its decision on those motions on December 19. At the inception of that hearing, plaintiff raised the question of closing the courtroom, which is not the same issue as that raised by her earlier, written motion. Because the court discerned no effort to comply with Practice Book § 25-59, which requires a written motion to be filed at least fourteen days prior to the hearing at which closure is sought and a hearing to be held on that motion on the short calendar, in public, the court denied her motion for closure.
Subsequent to the conclusion of that hearing, plaintiff reclaimed her May motion and it appeared on the short calendar of January 5, 2009. At close to five p.m. on that date, after the case had been called at least twice earlier in the afternoon without response, and without objection from plaintiff's counsel, the court indicated that it would take the matter on the papers. Defendant was not present on January 5, has not filed any responsive objection or memorandum of law, and on December 4 was silent as the court discussed the oral motion to close with counsel for plaintiff. Further, no member of the public or the press appeared at the short calendar to comment upon the motion. Given the apparent lack of interest in this issue, and in light of the substantive ruling on plaintiff's motion, the court hereby waives application of the requirement set forth in Practice Book § 25-34(c) that no motion be reclaimed more than three months after its initial filing unless for good cause shown.
While C.G.S. § 46b-11 confers discretion upon a court to order that the records and other papers in a family matter be kept confidential and not open to public inspection, it cannot be disputed that a party invoking the statute to seal a family file from public scrutiny must also comply with Practice Book § 25-59A. The rule expresses a presumption that items filed with the court shall be available to the public. To overcome that presumption, a moving party must satisfy the court that the order sought is necessary to preserve an interest which in the court's opinion overrides the public's interest in viewing such materials, and, further, that no reasonable alternatives to such order exist.
The two reasons asserted in her motion for sealing the file are that keeping it open to the public will "negatively affect the relationship of the parties" and "cause significant undue stress and disorder." This court suspects that the parties' relationship has already reached its nadir, and that it is the ongoing litigation between them, whether that occurs in public or in private, that is the primary cause of their stress and disorder. These assertions do not set this case apart from any other case on the family docket, and highlight an unfortunate aspect of family litigation generally. Until the law requires that all contested family cases be sealed from public scrutiny, it is this court's opinion that neither of these is a sufficient basis upon which to seal a file under our rules.
As noted, however, plaintiff's memorandum of law sets forth two distinct grounds upon which she claims the file should be sealed, to wit, that "the welfare of the children and nature of the case require the court sealing this file for the protection of the minor child" and that "the child could suffer additional harm if the allegations the court was to review were made known to the public." Those allegations are that one of the children may have suffered sexual abuse at the hands of a non-party. In Sabanovic v. Sabanovic, 108 Conn.App. 88 (2008), the Appellate Court affirmed a trial court order vacating, sua sponte, a sealing order which it had imposed a week earlier in a case in which allegations of sexual misconduct by one party involving their children as victims had led to the vacated order. The appeal failed for want of a transcript or articulation of the trial court's reasoning, thus depriving the appellate panel of an adequate opportunity to review the decision below. That the decision was upheld, however, indicates to this court that there is no automatic rule requiring the sealing of files in cases including allegations of this nature.
In the earlier case of Vargas v. Doe, 96 Conn.App. 399 (2006), that court had reversed trial court orders sealing a file and allowing the use of a pseudonym in a civil action involving the same sort of nefarious abuse of a child. The case turned upon the construction of Practice Book § 11-20A, which, for civil cases, creates procedures and standards one might consider at least for the purposes of this case to be identical to those provided for family cases by § 25-59A. The court commented that the ". . . presumption of openness of court proceedings . . . is a fundamental principle of our judicial system . . . This policy of openness is not to be abridged lightly." 96 Conn.App. 399, 406 (citations omitted). In its very next sentence, however, the court identified C.G.S. 46b-11 as one example among few in which the legislature had apparently recognized a privacy interest, such as the welfare of a child, which would warrant such an abridgement. Even such a sensitive interest, however, requires that the trial court assign to the moving party the burden of overcoming the presumption against openness, and found that the court below had erred by acting under an
implicit assumption that because the present proceeding arose from a prior criminal case involving allegations of sexual assault of a minor child, the use of pseudonyms to protect the child's privacy would be proper as a matter of course. That is not the procedure established in § 11-20A. Rather, § 11-20A contains a presumption in favor of open judicial proceedings in order to protect the public interest. Thus, in using the implicit assumption, the court improperly placed the burden on the plaintiff to show why he and members of the public would be harmed if the defendants' names were not part of the public record.
Its error, therefore, was to force the plaintiff in that case — or, potentially, the public, in that or any other case — to defend keeping the court and its files open, rather than placing that burden upon the party seeking the order of closure.
Here, it appears that plaintiff is inviting this court to fall into the same trap. In support of her motion, she provides no concrete detail as to what harm would befall this child. Even though ". . . when allegations of sexual assault are involved, those who are alleged to be victims, especially minors, may have strong privacy interests in having the allegations and surrounding circumstances concealed from public scrutiny;" 96 Conn.App. 399, 413; Judge Beach, quoting this passage in his decision in the In re Sealing Litigation Reference Numbers 101-140, Superior Court, Judicial District of Middlesex at Middletown (2007), added that "[e]mbarrassment is not enough; the most compelling considerations for extending a degree of anonymity in the cases I reviewed are substantial threats of physical harm and severe risk of social stigmatization of children, consistent with the policy of the legislature as stated in General Statutes § 46b-11."
The problem with plaintiff's showing here is that she has not provided this court with anything other than her conclusory declarations. Unless the court operates upon an assumption that all cases involving allegations of sexual abuse of a minor require sealing (and thus replicates the error reversed in Vargas), it is unclear how she can claim any relief on this record.
In addition, the court notes that her motion seeks to seal the entire file, not any discrete portion of it, although much of what it contains has no bearing upon the sensitive issue she focuses upon. Even if she had made out a proper case for sealing the file to the extent that its being left public might harm the child, her motion goes far beyond that goal in seeking to have the file closed with respect to items having nothing to do with the child. It is overbroad, and it ignores the specific mandate of Practice Book § 25-59A(f)(1) that a ". . . motion to seal the contents of an entire court file" is subject to ". . . the procedures set forth in Sections 7-4B and 7-4C." No effort to comply with those sections has been made.
Finally, since the decision published three weeks ago has presumably found its way into the computerized databases which now exist, the sealing of the file today is an instance of locking the barn door after the proverbial horse has taken its exit. The matter is moot.
Therefore, the motion to seal file is denied.