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A.P. v. M.E.E.12/30/2004
n the desirability to prevent the disclosure of the details of the Family Agreement, a document apparently supplied to the trial court at some point but not contained in this record on review. Consequently, we cannot assess on review whether sealing the Family Agreement, or other similar documents and reports, would serve to protect the interests identified by the appellees.
Courts do consider the issue of public access to a document or class of documents separate and apart from public access to the court proceeding. In order to find that a document is subject to a first amendment right of access, the court must consider whether the document has historically been available to the public and whether public access would promote the proper functioning of the government agency producing or considering the document. Settlement agreements have not generally been available to the public and disclosure of the details of settlement agreements would not likely serve to help the trial court in making its best interests determination. See Schumacher, 392 N.W.2d at 205-06. An analysis under the common law right of access is somewhat different. If the Family Agreement is in the trial court's possession, the common law presumption of access attaches to this document. However, the court should carefully examine the agreement in camera in order to determine whether public disclosure of the material might result in it becoming a vehicle for improper purposes. Even then, however, the court should limit sealing orders to particular documents or portions thereof which are directly relevant to the legitimate interest in confidentiality.
We recognize that the public's particularized interest in the details contained within a settlement agreement is of a different order than the public's general interest in monitoring a court's ultimate determination that a settlement would be in a minor's best interest.
The latter interest in the functioning of the trial court would ordinarily be insufficient to justify disclosure of legitimate confidential material; the public generally must be satisfied with the information disclosed during open court hearings, in the open pleadings in the record, and in the court's public decision. However, we do not undertake to decide whether particular documents in the instant case should be maintained under seal. The determination regarding sealing a particular document (like a private settlement agreement involving minors) is properly left to the trial court in the first instance. This case will be remanded for that purpose. We emphasize that the circuit court record will be returned in its sealed condition so that the trial court may decide the most expeditious procedure to determine whether certain documents should be sealed or portions thereof redacted.
5. Vacating the Seal
In this case, vacating the seal presents the trial court with a peculiar set of problems. In reliance on the seal, the parties may have filed documents that otherwise would not be part of the public record. Where there are legitimate concerns of confidentiality, the burden should shift to the parties to itemize for the court's approval which documents have been introduced into the public court record. See Grove Fresh Distributors, Inc., 24 F.3d 893 at 898.
In camera review is an appropriate procedure and is routinely used when a judicial decision concerns information claimed to be covered by some rule of confidentiality or privilege. The procedure consists generally of two parts. First, the parties present a general outline of their respective positions supported by non-confidential or non-privileged evidence. Then, the parties identify the specific confidential or pr
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