Concern About “Job Offers” Being “Withdrawn” Because of “Pending Civil Litigation” …

From an Arizona Supreme Court panel in Metke v. Oxford Bank (Justices Clint Bolick, William Montgomery, Kathryn King, and Maria Elena Cruz):

Petitioner contends that the court of appeals abused its discretion by denying his motion to seal in a one-sentence order that made no findings of fact and performed no balancing of interests. He argues that Rule 123 of the Rules of the Supreme Court, Rule 5.4(c)(2) of the Arizona Rules of Civil Procedure, and controlling case law require the court to weigh his asserted privacy interests against the public’s interest in access and to set forth written findings before denying relief.

Petitioner maintains that the litigation reveals sensitive information, including “health-related absences and details of his termination.” His affidavit explains that he has been advised that job offers have been withdrawn when background investigations reveal “pending civil litigation.” He incorrectly cites A.R.S. § 23-364(G) as reflecting a legislative policy of confidentiality for retaliation claims. He maintains that the court is required to consider and articulate the factors in Ariz. R. Civ. P. 5.4(c)(2) before denying his request.

Rule 123 articulates a policy of open access to the records of the judicial department. Its open records policy declares that “this state has always favored open government and an informed citizenry,” and that “the records in all courts and administrative offices of the Judicial Department of the State of Arizona are presumed to be open to any member of the public for inspection or to obtain copies at all times during regular office hours.” Ariz. R. Sup. Ct. 123(c)(1).

The rule is thus directed toward securing and promoting public access, not confidentiality. A request to seal or otherwise restrict access is a narrow exception to that presumption, and the burden rests on the party who seeks to overcome the openness the rule presumes.

None of the information Petitioner seeks to seal is sensitive or protected under Rule 123. These include specific categories of records, such as under Rule 123(c)(2) (Confidential and Personal Financial Records); (d)(1) (Juvenile Records); (d)(3) (Protective Orders); and (d)(6) (Mental Health Case Records). The rule designates specific and limited categories of information as confidential or closed.

Petitioner has not identified any specific medical or health record that he asked the court of appeals to seal. Petitioner does not contend that the information is either confidential or sensitive—instead he contends that knowledge of these proceedings is inhibiting his employment prospects.

Section 23-364(C) provides only that “[t]he name of any employee identified in a complaint to the commission shall be kept confidential as long as possible.” By its terms, that limited protection attaches to a complaint before the Industrial Commission of Arizona and endures only “as long as possible”; it does not attach to a civil action that the claimant himself elects to file and prosecute in the courts.

Nor does Ariz. R. Civ. P. 5.4 require the court of appeals to make findings in denying the motion. Rule 5.4(c)(2) permits a court to order a document sealed “only if it finds in a written order” that enumerated conditions are met, including that “an overriding interest exists that supports filing the document under seal and overcomes the right of public access to it.”

An order denying a motion to seal preserves the default of open access and imposes no corresponding obligation to make findings. Petitioner’s contention that “the inverse is also true,” and that a denial must as well rest on findings has no support in the text of the rule.

Notably, Petitioner does not present a public records request which would implicate the “best interests of the State.” Instead, he asks the Court to weigh his interest in keeping his litigation unavailable to the public against a prospective employer’s interest in learning about “pending civil litigation” from a background investigation. Although the open records policy may expose information the parties would otherwise seek to keep private, Petitioner has not established that his interest outweighs the interest of the public….