The Akron Legal News

1st District: Courts may unseal records in certain instances

ANNIE YAMSON
Special to the Legal News
Published: June 18, 2013

The 1st District Court of Appeals affirmed last week a lower court’s decision to unseal a defendant’s record in a witness retaliation case.

In the opening of the opinion, Judge Patrick DeWine wrote for the court, “This case presents a question of first impression: May a trial court that has issued an order sealing a criminal defendant’s record of acquittal later unseal the record to allow for the criminal prosecution of the defendant?”

The defendant, Terrell Vanzandt, argued that the Hamilton County Court of Common Pleas erred when it unsealed his record of acquittal “because the court lacked explicit statutory authority to do so.”

Vanzandt was indicted on three counts of trafficking in drugs and one count of aggravated trafficking but a jury acquitted him of all the charges.

Shortly following his trial, Vanzandt moved to seal the record of his acquittal pursuant to R.C. 2953.52 and the trial court granted the motion with no objection from the state.

Three months after the case had been sealed, the state moved to unseal it following allegations that Vanzandt had retaliated against a confidential informant just three days after his motion to seal was granted.

The state claimed it needed to use the trafficking case as evidence to prove its case of witness retaliation.

Following a hearing, the trial court granted the state’s motion providing the unsealed record be used only for the limited purpose of prosecuting the new case.

“The state of Ohio shall be permitted to use the records of this case in case no. B-1206778 and may introduce them as evidence,” wrote the trial court in its order to unseal. “The records shall otherwise remain sealed.”

R.C. 2953.52 outlines procedures under which a person who has been found not guilty or has had charges against him dismissed may have the case records sealed.

“There is nothing in the statutory scheme that addresses the question of whether, in a case like ours, a trial court that has sealed records retains the power to unseal the records and to allow their use outside the confines set forth in R.C. 2953.53(D),” wrote DeWine.

“To answer this question, it is helpful to trace the sources of a court’s authority to seal its records.”

DeWine held that it has been long understood that a court has “supervisory power over its own records and files” despite the strong presumption of a public right of access to court records.

Before the statute allowing courts to seal their records was enacted, the Ohio Supreme Court “recognized a judicial power to order expungement and sealing of records where charges were dismissed prior to trial.”

DeWine cited the 1981 case Pepper Pike v. Doe in which the defendant sought to seal the record of an assault case that had been filed against her.

Then, the trial court held it did not have the authority to seal the case because the only relevant statute in existence at the time provided only for the sealing of records of convictions.

The Supreme Court overruled, stating “the lack of a similar statutory scheme for dismissed charges did not mean that a court lacked the authority to seal such records in appropriate circumstances.”

“Even absent statutory authorization, trial courts retain the authority to order expungement where such unusual and exceptional circumstances make it appropriate to exercise jurisdiction over the matter,” Ohio’s highest court held.

Since the enactment of the statutes three years after Pepper Pike, courts have recognized that, in areas not addressed by the legislation, there continues to exist a judicial power to seal records in exceptional cases.

However, DeWine noted, “It does not appear that any other Ohio appellate courts have been confronted with the issue of whether this inherent and limited judicial authority to seal records also extends to the power to unseal.”

The appellate panel determined the extra-statutory authority to seal a case must suggest the existence of the same authority to unseal.

Likewise, the court found that allowing a court to grant access on a discretionary basis upon a proper showing is consistent with a statute that allows a certain narrow category of people to view sealed records as a matter of right.

“Thus, in light of the court’s supervisory power over its own records and the nonexclusive nature of the statue providing for access to sealed records, we conclude that within the court’s power to seal its records is a concomitant power to unseal such records in appropriate circumstances.”

DeWine went on to warn the courts not to exercise this power lightly and urged them to first weigh the interests of the parties involved.

He stated that individuals who have had their records sealed have a right to expect that they will not be accessible to parties beyond those set forth in the statute.

In considering a request to unseal records, DeWine advised courts to be guided by the Supreme Court’s Pepper Pike decision and to exercise their authority only in “unusual and exceptional circumstances.”

Ultimately, the 1st District sided with the Hamilton County Court of Common Pleas after conducting a “balancing test,” weighing the interest of the accused in his good name and right to be free against the legitimate need of government to maintain records.

“Here, Mr. Vanzandt is not trying to save ‘his good name,’ he is trying to save his skin,” wrote DeWine.

Vanzandt contended that his trafficking case should remain under seal to prevent prosecution for witness retaliation.

DeWine, however, held that “the state’s interest in prosecuting the alleged crime far outweighs Mr. Vanzandt’s interest in avoiding prosecution.”

Also significant, according to the panel, was the fact that the trial court’s order was narrowly tailored.

It specifically issued a limited order allowing the unsealed record to be used only in the retaliation case against Vanzandt.

“Considering the foregoing, we conclude that this case is one of the ‘unusual and exceptional’ cases in which the power to unseal records properly could be exercised,” the appellate court decided.

It found no abuse of discretion on the part of the trial court and overruled Vanzandt’s assignment of error.

Presiding Judge Penelope Cunningham and Judge Patrick Dinkelacker concurred.

The case is cited State v. Vanzandt, 2013-Ohio-2290.

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