Under new judicial rules adopted Feb. 24, court records throughout New Mexico are presumed to be public, and can be sealed only if there is a proven and overriding interest at stake. The new procedures will replace the current patchwork of local court rules.

In adopting the rules, the New Mexico Supreme Court incorporated the suggestions of several public and public-interest groups, including court personnel and the New Mexico Foundation for Open Government. As a result, publicly available court records will continue to hold unique identifying information for criminal defendants and civil litigants, preventing misidentification by court staff or the public.

"I'm pleased that the new rules contain a strong statement about the fundamentally public nature of court records, and set up a limited and uniform framework for sealing," said NM-FOG Executive Director Sarah Welsh in a news release. "That's a substantial improvement. And I'm also pleased that the Supreme Court scaled back the extreme privacy provision that was proposed in the draft rules."

NM-FOG and the New Mexico Press Association raised serious concerns about three aspects of the proposed rules, which were provided for public comment in late 2009. The draft rules overshot legitimate privacy considerations and would have made it difficult (if not impossible) to determine which John Martinez or Susan Smith committed a particular crime, according to several comments.

Specifically, the draft rules would have required filers and their attorneys to provide only a person's name, year of birth and in some cases the last four digits of a drivers' license number. The proposed rules also contained no "waiver" provision for a person wishing to file his or her own, unredacted personal information. Finally, the proposed rules created a tension with First Amendment rights by threatening sanctions on any person who might disclose sealed information.

The privacy-related suggestions of NM-FOG, NMPA and others were largely incorporated into the final rules, which apply to all court filings made after July 1, 2010.

Once the rules are in place, public court records can contain only the last four digits of a person's Social Security number, taxpayer ID numbers, financial account numbers or driver's license number, along with the year of birth. Documents with complete, unredacted numbers may be filed under seal to facilitate court proceedings. In Magistrate and Metro courts, criminal citations will be filed under seal and the court is obligated to provide the substantive information to the public.

Welsh said NM-FOG will be keeping its ears open for how the new rules affect day-to-day court business, including public access to records.

"Some other parties raised concerns that expanded privacy requirements could create an extra burden on court staff, who are already struggling with heavy demand for public court files," Welsh said. "There were also concerns that in practice, the sealing rules may not be applied as narrowly as intended. It's probably going to take some time for the dust to settle."

In all, the New Mexico Supreme Court adopted eight changes to public-inspection and sealing rules last week, affecting civil and criminal procedures in District, Magistrate and Metropolitan Courts, along with procedures in Municipal courts and the Appeals Court. The final rules are available at www.nmcompcomm.us/nmrules/NMRuleSets.aspx.

The new rules provide the following framework:

• Case records that are deemed confidential by statute, such as parentage and adoption records, will be automatically sealed.

• If a case is not automatically sealed by statute, then its records can be sealed only by a written court order — not by mere agreement of the parties involved. Courts must find that a proven interest outweighs the public's right to know, that the overriding interest will be harmed if there is no seal, and that sealing is the only way to serve the interest. What constitutes an 'overriding interest' will be determined by future case law.

• Sealing orders must be limited to those documents, pages or portions of a record containing the sensitive information. The rest of the file must be publicly available.

• Sealing orders must either specify an expiration date or state explicitly that the order is in effect until rescinded.

• A party in the case or any member of the public can file a motion to unseal a sealed record.

• Criminal citations will be automatically sealed in their original form. Courts must publicly provide the case and citation number; the defendant's name, address and year of birth; the date and nature of filed charges; the name of the charging officer or department; and the case status.

FOG is New Mexico's leading advocate for transparency in government. Its mission is to defend the public's right to know and to educate citizens and government agencies about their rights and responsibilities under New Mexico's open-meetings and open-records laws. Founded in 1989 by veteran Associated Press reporter Bob Johnson, FOG has a strong record of bringing sunshine to the halls of power. It is a nonprofit, nonpartisan, member-supported organization that draws broad membership from the general public, business community, elected officials, journalists and lawyers.

Contact Submitted to El Defensor Chieftain