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STATE OF NEW YORK
                                                     OFFICE OF THE ATTORNEY GENERAL


         ANDREW M....
Short Answer: No. Humiliation and harm to reputation are not sufficient for satisfying the good cause
requirement of 22 NY...
are generally not available to the public. See George F. Carpinello, Public Access to Court Records in
New York: The Exper...
court held that “litigants ought not to be required to wash their dirty linen in public and subjected to
public revelation...
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Writing Sample - Sealing Records Memo

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The following is a memorandum that I wrote for the Office of the New York State Attorney General regarding a pending Environmental Protection Bureau case.

I have received permission to use this memorandum as a writing sample. The parties’ names have been changed to protect confidentiality.

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Transcript of "Writing Sample - Sealing Records Memo"

  1. 1. STATE OF NEW YORK OFFICE OF THE ATTORNEY GENERAL ANDREW M. CUOMO DIVISION OF PUBLIC ADVOCACY ATTORNEY GENERAL ENVIRONMENTAL PROTECTION BUREAU MEMORANDUM TO: Assistant Attorney General FROM: Adam Sherwin DATE: July 22, 2009 RE: Sealing Court Records Question Presented: Whether Tyler (Defendant) and Petty (Attorney) may seal the record of the contempt proceeding on the basis of humiliation and harm to reputation. Facts: Tyler, a residential homebuilder, constructed a housing development that did not comply with state law requiring septic systems and water wells. The State of New York (“State”) brought suit over these charges, and the court ordered Tyler to implement a remedial plan to address these violations. Tyler did not comply with this plan, and the court held him to be in contempt of court. Tyler and the State then agreed on a timeline for completing the septic systems and water wells. The agreement included a court order that prevented Tyler and his attorney, Petty, from selling any of the housing development units before Tyler completed the remaining work. Tyler again did not comply with this agreement, and with Petty, violated the court order by selling several housing development units. The State then brought another contempt of court proceeding against both Tyler and Petty. Tyler and Petty intend to make a motion to the court for the sealing of the papers filed by the Attorney General and the record of the contempt proceeding itself. They will argue that allowing this file to remain open to the public will cause them to suffer humiliation and harm to their reputations, and that this is a sufficient basis for the court to seal the record. The Capitol, Albany, NY 12224 • (518) 474-8096 • Fax (518) 473-2534 (Not for Service of Papers) • http://www.oag.state.ny.us
  2. 2. Short Answer: No. Humiliation and harm to reputation are not sufficient for satisfying the good cause requirement of 22 NYCRR § 216.1(a), which regulates the sealing of court records. Discussion: Tyler and Petty’s motion to seal the court record will likely fail. 22 NYCRR § 216.1(a) provides: Except where otherwise provided by statute or rule, a court shall not enter an order in any action or proceeding sealing the court records, whether in whole or in part, except upon a written finding of good cause, which shall specify the grounds thereof. In determining whether good cause has been shown, the court shall consider the interests of the public as well as of the parties. Where it appears necessary or desirable, the court may prescribe appropriate notice and opportunity to be heard. N.Y. COMP. CODES R. & REGS. tit. 22, § 216.1(a) (2007). The determining question, therefore, is whether a party can meet the “good cause” requirement by arguing that an unsealed file will cause the parties humiliation and harm to reputation. The burden of proof is on the party seeking to have the records sealed. Gordon v. Vill. of Bronxville, 5 Misc. 3d 1030A (N.Y. Sup. Ct. 2004). A court determines “good cause” by using “prudent discretion” and “engages in a balancing process weighing the potential for harm and embarrassment to the litigants and public alike.” Coopersmith v. Gold, 156 Misc. 2d 594, 606 (N.Y. Sup. Ct. 1992). For matters involving issues of major importance, the public interest “weighs heavily” in favor of release. See Danco Lab., Ltd. v. Chemical Works of Gedeon Richter, Ltd., 274 A.D.2d 1, 8 (N.Y. App. Div. 1st Dep't 2000) (finding that the public interest in a proceeding over the possible distribution and sale of an abortion pill was an issue of major importance that weighed against sealing the court record). A party seeking to seal a court file does not satisfy the good cause requirement with claims of embarrassment, damage to reputation, or a desire to privacy. Doe v. New York Univ., 6 Misc. 3d 866, 878 (Sup. Ct. 2004). Issues that are generally sealed are those involving matters that are traditionally confidential, including: information relating to minors, intimate details about a marriage, personal medical records, trade secrets, and confidential business financial information or details, all of which The Capitol, Albany, NY 12224 • (518) 474-8096 • Fax (518) 473-2534 (Not for Service of Papers) • http://www.oag.state.ny.us
  3. 3. are generally not available to the public. See George F. Carpinello, Public Access to Court Records in New York: The Experience under Uniform Rule 216.1 and the Rule's Future in a World of Electronic Filing, 66 ALB. L. REV. 1089, 1101–02 (2003) (discussing situations in which New York courts are inclined to grant a sealing order).1 In Liapakis v. Sullivan, 290 A.D.2d 393, 394 (N.Y. App. Div. 2002), the court rejected defendants’ motion to seal the record of a pending case based on possible damage to the party’s reputation. Defendants were partners of a law firm who were being sued by another law partner for defamation and breach of agreement. Id. at 393. The Court denied defendants’ motion to seal the file by noting that they had failed to show that the “prejudice to their reputations caused by plaintiff's allegations of unethical and criminal conduct outweighs the clear public interest in such allegations, and there appears to be no other claim that any other good cause exists for sealing the record.” Id. The Court further noted that it had the option of using sanctions if the plaintiffs brought the suit to harass or injure the defendants, but sealing the record was not permissible in the early stage of the suit. Id. In Matter of Landberg v. National Enterprises, Inc., 2007 N.Y. Misc. LEXIS 8999, at *2–3, *7–8 (Sup. Ct. July 6, 2007), the Court rejected the parties’ argument that the “airing of accusations that are anonymous, unverified, and to a degree of doubtful veracity” is a legitimate ground for sealing court records. The parties argued that public access to the pending case, involving a claim of fraud, would tarnish the credibility and business standing of one of the parties, and would be detrimental to his clients. Id. The Court reasoned that while it may be appropriate to seal a court record involving the airing of unverified accusations, the parties did not show that the allegations were groundless. Id. at 8. The Court further noted that attorneys have a duty to be truthful, and frivolous claims are subject to sanctions. Id. Without proof that the claims were baseless, the Court refused to seal the record. Id. Courts have allowed the sealing of records in limited circumstances for matters of private concern. One 1 Settlement negotiations are another situation where courts have allowed the sealing of a court record. See Gordon v. Vill. of Bronxville, 5 Misc. 3d 1030A (N.Y. Sup. Ct. 2004) (“[C]ourts do not hesitate in denying the disclosure of materials that the parties have agreed to keep as confidential as a condition of their settlement agreement, where the need for the discovery is outweighed by the parties' interest in maintaining the document's confidentiality . . . .”). The Capitol, Albany, NY 12224 • (518) 474-8096 • Fax (518) 473-2534 (Not for Service of Papers) • http://www.oag.state.ny.us
  4. 4. court held that “litigants ought not to be required to wash their dirty linen in public and subjected to public revelation of embarrassing material where no substantial public interest is shown and where the material may have been inserted into court documents for the sole purpose of extracting a settlement of the action.” See Feffer v. Goodkind, Wechsler, Labaton & Rudoff, 152 Misc. 2d 812, 815 (N.Y. Sup. Ct. 1991) (allowing the sealing of the court file because it involved the internal finances of defendants' law firm that was of minimal public interest). Tyler and Petty may argue that the record should be sealed because this case is similar to Feffer and other cases where courts have permitted the sealing of records involving matters of private concern. Similar to Liapakis and Matter of Landberg, where the parties attempted to seal the court records based on potential damage to reputation, Tyler and Petty are also arguing here that the court record should be sealed due to concerns over the effect of the charges on their reputations. Because such a concern is not a sufficient basis for “good cause” under 22 NYCRR § 216.1(a), a motion to seal the court record will likely fail. Unlike Feffer, where the court held that the material sought to be sealed was of minimal public interest, here there is a strong public interest in keeping the court record open. This proceeding involves a harm to the public as a result of Tyler’s failure to properly install septic systems and water wells in the housing development. Given the importance to the public of these environmental violations, the court will find that there is a strong public interest in keeping the court record unsealed. Therefore, Tyler and Petty will not be able to show “good cause” for sealing the court record. Conclusion: Because Tyler and Petty will not be able to satisfy the “good cause” standard of 22 NYCRR § 216.1(a), their motion to seal the record of the contempt proceeding will likely be unsuccessful. The Capitol, Albany, NY 12224 • (518) 474-8096 • Fax (518) 473-2534 (Not for Service of Papers) • http://www.oag.state.ny.us

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