LEGAL ALERT: Sealing a Divorce Court Case File in Ohio May Now be a Bit Harder

Clear And Compelling Evidence Must Be Presented To Obtain An Order To Seal Records In Ohio

Going through a contentious divorce can be a horrible experience! In addition, the Courts require that lots of personal information be submitted as part of the process. But who wants all that “dirty laundry” to be online for anyone to view? There may be a lot of reasons why it could be harmful to the parties to allow public access to the filings, pleadings, decisions and Court Orders.

REQUEST TO SEAL COURT FILE?

The typical remedy is to file a motion requesting the Court to seal the entire file (or at a minimum the very sensitive ones) — meaning that the public cannot access the contents of the Court proceedings. In Ohio, as in most states, that decision comes down to the Judge’s view on the merits of your request. Typically the Judge almost has unlimited discretion to decide to seal or not seal a case file.

WHY IS MY DIVORCE CASE ANYONE ELSES BUSINESS?

In Ohio, as in most states, the court systems are “open” proceedings. [That is not true for Juvenile Court where the proceedings are generally closed.] The Rules of Superintendence for the Courts of Ohio require a Judge to provide strong rationale in its Order demonstrating that the need to sealnbsp court records outweighs the right of the public to access records. This is part of the old adage that “The Public Has a Right to Know.”

A NEW STANDARD TO SEAL A DIVORCE CASE IN OHIO?

Prior to October 12, 2022, Ohio Judges in a small number of divorce cases would grant a joint request and Order that certain filings be sealed, redacted or that entire cases are to be sealed if there was sensitive information in them. The Court’s would not typically, require a hearing before ruling on this request. But Ohio Judges may be a lot more cautious to do so now.

On October 12, 2022, the Ohio Supreme Court essentially reversed an Ashland County judge’s decision to seal the 2020 divorce records of former U.S. Senate candidate and state treasurer, Josh Mandel and his ex-wife. The suit to Order him to “unseal” the documents was brought by the Cincinnati Enquirer. Click here to read this recent decision in Cincinnati Enquirer v. Forsthoefel.

The Sealing Of 21 Case Documents

The Supreme Court stated that under Ohio Sup. R. 45, a party in a case can request that a court restrict public access to a case document or information in a document or seal the file. That rule allows a court to restrict access “if it finds by clear and convincing evidence that the presumption of allowing public access is outweighed by a higher interest”. The Supreme Court stated that the Court would need to articulate factors such as “the security of the person requesting restriction or the potential for the invasion of the requester’s privacy”. In addition, when a court agrees to restrict access, the rule requires the court to use “the least restrictive means available.” In other words, the Ohio Supreme Court’s decision seems to at least require more “hoops” to jump through before issuing an order to seal all or part of the records.

In the initial divorce case, neither party submitted an affidavit establishing a clear basis as to why the records should be sealed. Judge Forsthoefel did not hold a hearing. Instead, he acted on a Joint Motion by both parties and ordered the sealing of 21 specific case documents.

Attorney’s Argument Not Evidence Court Says

The Enquirer argued that Judge Forsthoefel did not cite to proper evidence for sealing the records and that he did not use the least restrictive means, such as redacting only the information in the documents that the Mandels were entitled to keep private.

The Court opinion noted neither Josh nor Ilana Mandel submitted an affidavit explaining why sealing the records was necessary. Josh Mandel’s attorney did articulate some facts as to why it was just to seal the documents, but the Court noted that an attorney’s argument is “not evidence.”

“The sweeping nature of Judge Forsthoefel’s sealing order is also at odds with Sup.R. 45(E)(3)’s requirement that he use the ‘least restrictive means available.’ Not only does his order fail to explain why he thought the wholesale sealing of 21 case documents was the only legally proper way of resolving the Mandels’ motion, it also fails to disclose whether he considered a less restrictive means of limiting public access, such as redaction,” the opinion stated.

HOW TO NOW OBTAIN THE SEALING OF DIVORCE COURT CASE RECORDS OR CASES

While this decision might just be an aberration in part due to the political climate these days, some Judges won’t really care about this holding primarily because litigation of this nature is rare. But Judges in general hate to either be told what to do by a higher Court or have its decision overturned. Those Judges may become much more reluctant to seal documents or cases.

I would suggest that Counsel consider now doing the following when trying to limit the public’s access to a divorce case:

1. Obtain the consent of both parties (or their counsel) when requesting to seal records or the entire case;
2. Develop a very specific list of EACH item on each document that has important sensitive information and why that needs to be removed from the public’s view and access;
3. Limit the scope of your request and address the “least restrictive means” available to both allow public access and to protect the 2 parties;
4. Discuss the matter with the trial Judge in advance of filing the Motion (if possible) to gauge the particular Judge’s position and desired approach;
5. Include a detailed affidavit executed by both parties and request a hearing. Provide strong and compelling reasons to support your request.
6. Have a Decision drafted to provide to the Judge at the hearing containing the specific factual findings including addressing the least restrictive manner to accomplish the relief sought by both parties to comply with Ohio Sup. R. 45.

CONCLUSION

In these days of rampant identity thefts and general privacy concerns, most everyone would like their divorce case sealed if possible. I get this request all the time. But, recognize the law strives to protect the public right of access and it requires a heavy burden of proof to limit that right.

To be successful in this type of request your lawyer must present clear and compelling evidence to obtain an Order to seal certain records or an entire file. Do not just assume that the Court will likely grant a generic and poorly supported request as a cooperative Judge may have done in the past!

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