In an opinion issued on September 2, 2011, that was designated for publication but is not yet final, the Kentucky Court of Appeals discussed at length the proper procedure to follow when a circuit court orders a file in a civil action to be kept under seal in the clerk’s office.
The opinion, in Kincaid v. Kincaid, NO. 2009-CA-002202-MR (9/2/2011), arose out of litigation involving the estate of deceased Lexington banking and insurance magnate Garvice Kincaid. The file in the underlying matter had been sealed by the agreement of the parties.
The Court of Appeals disapproved of the practice of sealing a case file by agreement, finding that the practice undermines the “fundamental premise of an open and transparent judicial system.” Thus, the Court held that before sealing the court record in a civil action a circuit court should follow the procedure established by the Kentucky Supreme Court in Lexington Herald-Leader Co., Inc. v. Meigs, 660 S.W.2d 658 (Ky. 1983), for sealing criminal proceedings.
Herald-Leader v. Meigs outlined the following steps and standards that a circuit court should apply before closing a criminal proceeding to the public and the press.
(1) The court must conduct a hearing;
(2) The court must consider less restrictive means to achieve the desired ends than closing the proceedings;
(3) The burden of proof is on the party seeking closure, who must establish that:
(a) the right or interest sought to be protected is sufficiently important to warrant the extraordinary protection of the closed court;
(b) the asserted right or interest probably cannot be adequately protected by less restrictive alternatives to closure; and
(c) the right or interest the requesting party seeks to protect will be protected by a closed proceeding.
Id. at 664.
In Kincaid the Court of Appeals noted the Kentucky Supreme Court’s decision in Courier-Journal and Louisville Times Co. v. Peers, 747 S.W.2d 125 (Ky. 1988), that the principles enunciated in Herald-Leader v. Meigs for sealing criminal proceedings are applicable to court records and proceedings in civil actions.
Finally, the Court of Appeals in Kincaid encouraged the Kentucky Supreme Court to incorporate into the Rules of Civil Procedure (which are now silent on the issue) these or similar standards for sealing court files in civil cases.
Note — the decision should not be cited as authority until it becomes final and is either published or determined to meet the criteria for citation under CR 76.28(4)(c).
David Kramer is a Northern Kentucky attorney practicing at Dressman Benzinger LaVelle psc.
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