Shadid v. Hammond

• Decision Date: 11 December 2013
• Docket Number: No. 112327.,112327.
• Citation: 315 P.3d 1008
• Parties: Edward A. SHADID, II, Petitioner, v. The Honorable Lisa HAMMOND, Special Judge of the District Court of Oklahoma County, Respondent, and Dina Hammam, Real Party In Interest.
• Court: Oklahoma Supreme Court

315 P.3d 1008

Edward A. SHADID, II, Petitioner,

v.The Honorable Lisa HAMMOND, Special Judge of the District Court of Oklahoma County, Respondent,andDina Hammam, Real Party In Interest.

No. 112327.

Supreme Court of Oklahoma.

Dec. 9, 2013.

As Corrected Dec. 11, 2013.

ORDER

¶ 1 Original jurisdiction is assumed. Okla. Const. Art. 7 § 4. The Oklahoma Publishing Company is directed to file a motion requesting access to the referenced court file pursuant to the Open Records Act, 51 O.S.2011 § 24A.1 et seq. The Honorable Lisa Hammond, or any other assigned judge, is directed to conduct a hearing to determine all pending matters before the court in FD–2004–6310.

¶ 2 DONE BY ORDER OF THE SUPREME COURT IN CONFERENCE THIS 9th DAY OF DECEMBER, 2013.

REIF, V.C.J., KAUGER, WATT, WINCHESTER, TAYLOR (by separate writing), COMBS, GURICH, JJ., concur.

COLBERT, C.J., and EDMONDSON (by separate writing), J., concur in part and dissent in part.

TAYLOR, J., with whom KAUGER, J., joins, concurring:

¶ 1 I fully concur with the Order of this Court. It provides for a timely hearing with notice to all parties on an important public issue. In the spirit of giving guidance to the District Courts, I write separately to emphasize the clear intent of the Oklahoma Open Records Act. Court records are public records. There are specific statutory exceptions to this general rule (juvenile, adoption, mental health, etc.). Otherwise, documents filed with the Court Clerk's office are public records and available for public access.

¶ 2 There are no provisions in the Oklahoma Open Records Act that allow parties to simply agree to seal a public record and submit a summary agreed order to the court. Sealing a public record should be a very rare event that occurs in only the most compelling of circumstances.

¶ 3 If after very careful and independent consideration a District Court decides to seal a public record, it “shall” make a specific finding that sealing the public record is “necessary in the interests of justice to remove the material from the public record”. 51 O.S. 24A.29. That is a very high standard for good reason and is required in every case.

¶ 4 All of this current litigation and expense demonstrates the very reason why courts should rarely take the drastic measure of sealing public records. After the records are sealed, those seeking to protect the public interest are required to go to great time and expense to view what were once public records. This issue should be resolved by a hearing forthwith. That was this trial judge's original plan. Local Rule 10.1 C.

¶ 5 My future guidance to the District Courts is to not block public access to court records unless it is absolutely “necessary in the interests of justice”. Public records should remain public except in the most compelling of circumstances.

EDMONDSON, J., concurring in part and dissenting in part, joined by COLBERT, C.J.

¶ 1 This controversy is about the proper procedure to be used when a news organization invokes the Oklahoma Open Records Act, 51 O.S.2011 §§ 24A.1–24A.29. to gain access to a record that has been sealed and made confidential in a court proceeding where the news organization was not a party.

¶ 2 The petitioner, Edward A. Shadid, II, was a party to a divorce proceeding in the District Court for Oklahoma Court. On June 11, 2007, the assigned judge in the divorce proceeding granted a joint application to seal documents in the court clerk's file and the documents were removed from public access. In September 2013, a staff writer for the Oklahoma Publishing Company (OPUBCO) attempted to obtain the documents from the Court Clerk, and upon being informed that they were sealed the staff writer mailed a letter to the assigned judge in the divorce proceeding and requested that the documents be unsealed and thus available for public inspection.

¶ 3 The assigned judge issued an order stating that pursuant to the request in the letter the matter was set for a hearing. Petitioner objected to a hearing on the letter's request, filed a motion to strike the hearing, and then sought extraordinary relief in this Court.

¶ 4 The controversy before the Court presents issues of first impression involving the application of the Oklahoma Open Records Act and a local rule of a District Court, and whether decisions involving opening and sealing court records should be reviewed by an original action as in the present case or by an appeal. The controversy is publici juris, is likely to be repeated, and judicial economy is served by answering the issues now. The Court should thus assume original jurisdiction pursuant to Okla. Const. Art. 7 § 4 and issue an opinion for official publication.

¶ 5 Petitioner requests a supervisory writ of extraordinary relief. Generally, such writs are not available if a remedy by appeal exists and that remedy is adequate.¹ Analyzingthis issue requires addressing the nature of a court's order sealing records in a court file in the custody of a District Court Clerk. The order in Petitioner's case that sealed the records was rendered in the context of a statutorily provided procedure for divorce. Although divorce is a statutory proceeding, a District Court is empowered to provide ancillary or provisional remedies for the protection of parties in a matrimonial proceeding.²

¶ 6 This Court has discussed provisional and ancillary remedies for the protection of parties' rights, and has indicated that a particular provisional remedy may be sought in a manner that is ancillary or auxiliary to the proceeding on the merits.³ The nomenclature of provisional and ancillary comes from the former practice of a remedy granted in an ancillary suit in equity, such as bills for discovery or to perpetuate testimony. ⁴ Later a party was not required to seek a remedy from a chancery court, and the ancillary remedies in equity were available in the principal case as provisional and temporary remedies because the court was simultaneously exercising jurisdiction in equity and law.⁵ Records of a court are in that court's custody and control,⁶ and a court pursuant to its general equity powers may issue an order which impounds and seals papers or records. ⁷ Some jurisdictions have stated that in a general sense the formal equitable remedies have been superseded by either rules or statutes.⁸

¶ 7 In Oklahoma, a District Court's equity jurisdiction to seal a record has not been supplanted by statute. Rather, the exercise of that equity jurisdiction is governed or controlled by applicable statutes, 51 O.S.2011 § 24A.25 and 51 O.S. § 24A.29, as amended by Laws 2012, c. 278. ⁹ On June 11, 2007, the version of § 24A.29 then in effect had been in force for less than two years and stated in part that:

A. Unless confidentiality is specifically required by law, any order directing the withholding or removal of pleadings or other material from a public record shall contain:

1. A statement that the court has determined it is necessary in the interests of justice to remove the material from the public record and in those instances where such withholding is required by law, the order shall so indicate;

51 O.S.Supp.2005 § 24A.29(A)(1) eff. November 1, 2005.

The plain language of the statute recognizes that confidentiality may occur “in those instances” which are “required by law” or in those instances when “it is necessary in the interests of justice.” The latter circumstance is an obvious reference to the court's application of equity principles.¹⁰Section 24A.25 of the Open Records Act states that:

Any order of the court for removal of materials from the public record shall require compliance with the provisions of paragraphs 2 through 7 of subsection C of Section 3226 of Title 12 of the Oklahoma Statutes.

51 O.S.2011 § 24A.25.

Section 3226 is part of the Oklahoma Discovery Code, 12 O.S.2001 § 3224–3237,¹¹ in effect on June 11, 2007, and paragraphs 2 through 7 of “subsection C” of § 3226 provide a procedure for obtaining a protective order and for keeping material confidential.¹² A reference in § 3226(C)(2)(a) to the circumstances to remove material from the public record “in the interests of justice” corresponds to the language of 51 O.S.Supp.2005 § 24A.29(A)(1) and is a reference to a District Court's equity jurisdiction.

¶ 8 In the 2009 case of Collier v. Reese this Court correctly held that an order was the functional equivalent of an injunction when it sealed records, prohibited dissemination of information, and enjoined filings.¹³ In Collier we also correctly held that the functional equivalent of an injunction in that case should be treated as an injunction for the purpose of its classification as an appealable interlocutory order. It was not the mere coercive nature of the order or its historical pedigree in equity that made the order the functional equivalent of an injunction to be treated as an interlocutory appealable order.

¶ 9 Our judicial procedure includes coercive interlocutory discovery orders which have an historical pedigree of ancillary and provisional orders, but they are nevertheless construed as interlocutory orders that are not appealable separate from an appeal from the judgment or final order.¹⁴ Although there are various types of injunctions and they may issue for either temporary or permanent relief, they are ultimately based upon an adjudication of a legally cognizable right that would support a cause of action for equitable relief.¹⁵ The Open Records Act does not create privacy rights; but its exceptions to disclosure indicate that under some circumstances privacy rights of individuals should be protected,¹⁶ and the Act provides such protection for a privacy right in the context of a divorce proceeding when the personal privacy right supersedes the public's right to acquire the information because “the interests of justice” in the particular circumstance presented gives precedence to the individual's right. 51 O.S.2011 § 24A.29(A)(1). It is this judicial...