Also known as an order of confidentiality or secrecy order.
The public has a general right to observe Court proceedings which includes the right to view and make copies of records within the Court file. Some Court files are sealed as of right simply because of the nature of the proceedings. For example, many jurisdictions will seal from public access:
- Court records of family and divorce files;
- Court files which involve children such as child protection proceedings; and
- Court files involving the criminal prosecution of a minor.
Generally, a Court reserves the right to seal files and prohibit public view or copying thereof for extraordinary circumstances. The will involve weighing the public's right of access against the likelihood of substantial prejudice to a litigant or their right to a fair trial.
One typical example in the adult plaintiff for sexual abuse perpetrated when she or he was a minor. Other frequent examples involve litigation, civil or criminal, which include state security or military secrets or information which might compromise law enforcement (such as an ongoing investigation or the identity of an informant).
A sealing order may be general in covering all documents in a Court file, or it may relate only to specified documents (such as search warrants and the informations upon which their issuance was judicially authorized). A sealing order may apply for a specified period only.
Note this summary of the law offered by Justice Cowen of the United States Court of Appeals (Third Circuit) in Pansy v. Borough of Stroudsburg, particularly the principle that a sealing order is the exception, not the rule
"The term confidentiality order will be used to denote any court order which in any way restricts access to or disclosure of any form of information or proceeding, including but not limited to protective orders, sealing orders and secrecy orders.
"Protective orders properly denote court orders over information exchanged during discovery.... Protective orders over discovery materials and orders of confidentiality over matters relating to other stages of litigation have comparable features and raise similar public policy concerns. All such orders are intended to offer litigants a measure of privacy, while balancing against this privacy interest the public's right to obtain information concerning judicial proceedings. Also, protective orders over discovery and confidentiality orders over matters concerning other stages of litigation are often used by courts as a means to aid the progression of litigation and facilitate settlements. Protective orders and orders of confidentiality are functionally similar, and require similar balancing between public and private concerns.
"We therefore exercise our inherent supervisory power to conclude that whether an order of confidentiality is granted at the discovery stage or any other stage of litigation, including settlement, good cause must be demonstrated to justify the order.
"We do not ... give parties carte blanche either to seal documents related to a settlement agreement or to withhold documents they deem so related. Rather, the trial court - not the parties themselves - should scrutinize every such agreement involving the sealing of court papers and determine what, if any, of them are to be sealed, and it is only after very careful, particularized review by the court that a Confidentiality Order may be executed.
"Good cause is established on a showing that disclosure will work a clearly defined and serious injury to the party seeking closure. The injury must be shown with specificity. Broad allegations of harm, unsubstantiated by specific examples or articulated reasoning, do not support a good cause showing. The burden of justifying the confidentiality of each and every document sought to be covered by a protective order remains on the party seeking the order....
"(The) threshold for sealing is elevated because the case involves a government agency and matters of public concern. On the other hand, if a case involves private litigants, and concerns matters of little legitimate public interest, that should be a factor weighing in favor of granting or maintaining an order of confidentiality....
"Where a governmental entity is a party to litigation, no protective, sealing or other confidentiality order shall be entered without consideration of its effect on disclosure of government records to the public under state and federal freedom of information laws. An order binding governmental entities shall be narrowly drawn to avoid interference with the rights of the public to obtain disclosure of government records and shall provide an explanation of the extent to which the order is intended to alter those rights."
Brian T. Fitz-Gerald wrote:
"Unfortunately, the incidence of secrecy in the judicial process appears to be on the rise, particularly in the complex litigation area. Equally disturbing is the trend for parties to condition any pre-trial settlement on the court's granting a total sealing order covering all materials in the court's possession."
- Fitz-Gerald, Brian, Sealed v. Sealed: A Public Court System Going Secretly Private, 6 J.L. & Pol. 381, 382 (1990)
- Pansy v. Borough of Stroudsburg, 23 F. 3d 772. The extract above also contains material from footnote #1, presented at variance with the original opinion for readability.