Rule 1-079.Public inspection and sealing of court records

Paragraph C of this rule recognizes that all court records within certain classes of cases should be automatically sealed without the need for a motion by the parties or court order. Most of the classes of cases set forth in Paragraph C have been identified by statute as warranting confidentiality. However, this rule does not purport to cede to the Legislature the final decision on whether a particular type of case or court record must be sealed. Paragraph C simply lists those classes of cases in which all court records shall be automatically sealed from the commencement of the proceedings without the need for a court order. Nonetheless, a motion to unseal some or all of the automatically sealed court records in a particular case still may be filed under Paragraph I of the rule.

For some of the classes of cases identified in Paragraph C, automatic sealing is subject to other statutory disclosure or reporting requirements. For example, under NMSA 1978, § 34-9-19 (2016), the Administrative Office of the Courts (AOC) is required to send to the Federal Bureau of Investigation’s National Instant Criminal Background Check System (NICS) information about a court order, judgment, or verdict about each person who has been “adjudicated as a mental defective” or “committed to a mental institution” under federal law. Automatic sealing under Paragraph C, therefore, does not prevent the AOC from sending the information to the NICS in the proceedings described in Subparagraphs (C)(4), (5), (9), and (10). A person who is the subject of the information compiled and reported by the AOC to NICS has a right to obtain and inspect that information. See NMSA 1978, § 34-9-19(K) (2016). Another example includes records sealed under Section 29-3A-4 (Expungement of records upon release without conviction) of the Criminal Record Expungement Act, NMSA 1978, §§ 29-3A-1 to -9 (2019, as amended through 2021), which will be available to law enforcement and courts if a person is charged with a future crime. See NMSA 1978, § 29-3A-2(C)(2) (2019). These records will also be released in connection with any application for or query regarding qualification for employment or association with any financial institution regulated by the Financial Industry Regulatory Authority or the Securities and Exchange Commission. See NMSA 1978, § 29-3A-7 (2019).

Aside from entire categories of cases that may warrant limits on public access, numerous statutes also identify particular types of documents and information as confidential or otherwise subject to limits on disclosure. See, e.g., NMSA 1978, § 7-1-4.2(H) (2017) (providing for confidentiality of taxpayer information); NMSA 1978, § 14-6-1(A) (1977) (providing for confidentiality of patient health information); NMSA 1978, § 29-10-4 (1993) (providing for confidentiality of certain arrest record information); NMSA 1978, § 29-12A-4 (2003) (limiting disclosure of local crime stoppers program information); NMSA 1978, § 29-16-8 (2006) (providing for confidentiality of DNA information); NMSA 1978, § 31-25-3 (1987) (providing for confidentiality of certain communications between victim and victim counselor); NMSA 1978, § 40-8-2 (2001) (providing for sealing of certain name change records); NMSA 1978, § 40-6A-312 (2005) (providing for limits on disclosure of certain information during proceedings under the Uniform Interstate Family Support Act); NMSA 1978, § 40-10A-209 (2001) (providing for limits on disclosure of certain information during proceedings under the Uniform Child-Custody Jurisdiction and Enforcement Act); NMSA 1978, § 40-13-7.1 (2005) (providing for confidentiality of certain information obtained by medical personnel during treatment for domestic abuse); NMSA 1978, § 40-13-12 (2008) (providing for limits on internet disclosure of certain information in domestic violence cases); NMSA 1978, § 44-7A-18 (2001) (providing for limits on disclosure of certain information under the Uniform Arbitration Act). However, Paragraph C does not contemplate the automatic sealing of these items. Instead, if a party believes a particular statutory provision warrants sealing a particular court record, the party may file a motion to seal under Paragraph E of this rule. Any statutory confidentiality provision notwithstanding, the court must still engage in the balancing test set forth in Subparagraph (G)(1) of this rule before deciding whether to seal any particular court record. When determining whether a motion to seal should be granted, the court should consider any statute, regulation, rule, or other source of law that addresses access to court records in the particular type of proceeding. See, e.g., NMSA 1978, §§ 45-5-303(J), 45-5-407(M) (2019) (providing that a court may seal the record in a guardianship or conservatorship proceeding on motion of the alleged incapacitated person, individual subject to guardianship or conservatorship, or parent or guardian of a minor subject to conservatorship after the petition has been dismissed or the guardianship or conservatorship has been terminated).

Paragraph D of this rule recognizes that certain personal identifier information often included within court records may pose the risk of identity theft and other misuse. Accordingly, Paragraph D discourages the inclusion of protected personal identifier information in a court record unless the court or a party deems its inclusion necessary for the effective operation of the court’s judicial function. Although the decision to include protected personal identifier information in the court record is a non-sanctionable decision, the rule nonetheless prohibits public access to protected personal identifier information on court websites and also prohibits the court from publicly displaying protected personal identifier information in the courthouse, which includes docket call sheets, court calendars, or similar material intended for public viewing.

The court need not review individual documents filed with the court to ensure compliance with this requirement, and the clerk may not refuse to accept for filing any document that does not comply with the requirements of Paragraph D. Moreover, the clerk is not required to screen court records released to the public to prevent the disclosure of protected personal identifier information. However, anyone requesting public access to court records shall provide the court with his or her name, address, and telephone number, along with a government-issued form of identification or other acceptable form of identification. The court may also consider maintaining a log of this information.

Paragraphs E and F set forth the procedure for requesting the sealing of a court record. Any person or entity may file a motion to seal a court record, and all parties to the action in which the court record was filed, or is to be filed, must be served with a copy of the motion. Any person or entity may file a response to the motion to seal the court record, but, if the person or entity filing the response is not a party to the underlying litigation, that person or entity does not become a party to the proceedings for any other purpose.

Ordinarily, the party seeking to seal a court record must lodge it with the court at the time the motion is filed. A lodged court record is only temporarily deposited with the court, pending the court’s ruling on the motion. Accordingly, a lodged court record is not filed by the clerk and remains conditionally sealed until the court rules on the motion. To protect the lodged court record from disclosure, pending the court’s ruling on the motion, the movant must enclose the lodged court record in an envelope or other appropriate container, and must attach a cover sheet to the envelope or container that includes the case caption, notes that the enclosed court record is the subject of a pending motion to seal, and is clearly labeled “conditionally under seal.” If necessary to prevent disclosure pending the court’s ruling, the motion, any response or reply, and other supporting documents should either be lodged with the court as well, or filed in redacted and unredacted versions, so the court may permit public access to the redacted pleadings until the court rules on the motion.

Although a lodged court record is not officially filed with the court, unless and until the motion to seal is granted, the clerk need not keep lodged court records in a physically separate location from the rest of the court file. In this regard, the rule does not purport to require the clerk to maintain lodged court records in any particular manner or location. As long as the lodged record is protected from public disclosure, each court retains the discretion to decide for itself how it will store lodged court records, and this rule anticipates that most courts will choose to store and protect lodged and sealed court records in the same way that those courts have traditionally stored and protected sealed and conditionally sealed court records filed with the court before the adoption of this rule.

When docketing a motion to seal, the clerk’s docket entry should be part of the publicly available register of actions, and should reflect that a motion to seal was filed, the date of filing, and the name of the person or entity filing the motion. However, any docket entries related to the motion to seal should avoid including detail that would disclose the substance of the conditionally sealed material before the court has ruled. If necessary to prevent disclosure, in rare cases, a court order granting a motion to seal may provide for the sealing of previous or future docket entries related to the sealed court records if the court’s register of actions contains, at a minimum, a docket entry containing the docket number, an alias docket entry or case name, such as Sealed Pleading or In the Matter of a Sealed Case, and an entry indicating that the pleading or case has been sealed so that anyone inspecting the court’s docket will know of its existence.

If the court denies the motion to seal, the clerk will return the lodged court record to the party; it will not become part of the case file, and will, therefore, not be subject to public access. However, even if the court denies the motion, the movant still may decide to file the previously lodged court record, but it then will be subject to public access. If the court grants the motion to seal, it must enter an order in accordance with the requirements of Paragraph G. The order must state the facts supporting the court’s decision to seal the court record and must identify an overriding interest that overcomes the public’s right to public access to the court record and that supports the need for sealing. The rule itself does not identify what would constitute an overriding interest, but anticipates that what constitutes an overriding interest will depend on the facts of the case and will be developed through case law on a case by case basis. The rule further provides that the sealing of the court record must be narrowly tailored and that there must not be a less restrictive alternative for achieving the overriding interest. To that end, the rule encourages the court to consider partial redactions if possible rather than the wholesale sealing of pages, documents, or court files. Paragraph G also requires the court to specify whether any other matter beyond the court record (including the order itself, the register of actions, or docket entries) will be sealed to prevent disclosure. The sealing order also must specify who may, and may not, have access to a sealed court record, which may include prohibiting access to certain parties or court personnel. In addition, the sealing order must specify a date or event on which the order expires, or provide that the sealing remains in effect until further order of the court. Finally, the order must list those persons or entities who must be given notice of any subsequently filed motion to unseal the court record or modify the sealing order.

Any court records sealed under the provisions of this rule remain sealed even if subsequently forwarded to the appellate court as part of the record on appeal. However, sealed court records forwarded to the appellate court as part of the record on appeal may be reviewed by the appellate court judges and staff unless otherwise ordered by the appellate court. Any other motions requesting modification to a sealing order in a case on appeal must be filed with the appellate court.

Motions to unseal previously sealed court records are governed by Paragraph I of this rule. A party or any member of the public may move to unseal a court record, and the rule does not provide a time limit for filing a motion to unseal a court record. Motions to unseal follow the same general procedures and standards used for motions to seal. When determining whether a motion to unseal should be granted, the court should consider any statute, regulation, rule, or other source of law that addresses access to court records in the particular type of proceeding. See, e.g., NMSA 1978, §§ 45-5-303(K), 45-5-407(N) (2019) (“A person not otherwise entitled to access court records . . . for good cause may petition the court for access to court records of the [guardianship or conservatorship]. The court shall grant access if access is in the best interest of the alleged incapacitated person or [the protected person or protected person subject to conservatorship] or furthers the public interest and does not endanger the welfare or financial interests of the alleged incapacitated person or [the protected person or individual].”).

A copy of a motion to unseal must be served on all persons and entities identified in the sealing order as entitled to receive notice of a future motion to unseal.

Although most court records should remain available for public access, if a court record is sealed under this rule, all persons and entities who do have access to the sealed material must act in good faith to avoid the disclosure of information the court has ordered sealed. Nonetheless, the protections provided by this rule should not be used to effect an unconstitutional prior restraint of free speech. But, in the absence of a conflict with a countervailing First Amendment principle that would permit disclosure, any knowing disclosure of information obtained from a court record sealed by the court may subject the offending person or entity to being held in contempt of court or other sanctions as deemed appropriate by the court.

[Adopted by Supreme Court Order No. 10-8300-004; as amended by Supreme Court Order No. 11-8300-006; as provisionally amended by Supreme Court Order No. 16-8300-003; as amended by Supreme Court Order No. 17-8300-002; as amended by Supreme Court Order No. 18-8300-005; as provisionally amended by Supreme Court Order No. 21-8300-033; provisional amendments approved by Supreme Court Order No. S-1-RCR-2024-00099.]