                 THE COURT OF APPEALS OF THE STATE OF IDAHO


JOHN (2012-11) DOE,                             )
                                                )      Docket No. 38672
       Petitioner-Appellant,                    )
                                                )
v.                                              )
                                                )
STATE OF IDAHO,                                 )
                                                )
       Respondent.                              )
                                                )
                                                )
STATE OF IDAHO,                                 )
                                                )      Docket No. 38784
       Plaintiff-Respondent,                    )
                                                )
v.                                              )      2012 Opinion No. 52
                                                )
JOHN (2012-11) DOE,                             )      Filed: October 4, 2012
                                                )
       Defendant-Appellant.                     )      Stephen W. Kenyon, Clerk
                                                )
                                                )

       Appeal from the District Court of the First Judicial District, State of Idaho,
       Bonner County. Hon. Steven C. Verby, District Judge.

       Order denying motion to seal criminal case file, vacated and case remanded.

       Palmer George, PLLC, Coeur d’Alene, for appellant. Michael G. Palmer argued.

       Hon. Lawrence G. Wasden, Attorney General; Russell J. Spencer, Deputy
       Attorney General, Boise, for respondent. Russell J. Spencer argued.
                 ________________________________________________
LANSING, Judge
       John Doe appeals from the district court’s order denying his motion to seal the criminal
case file from his 1990 felony conviction for battery with the intent to commit rape. Because we
conclude that the district court did not correctly interpret the law governing Doe’s request, we
vacate the order and remand for further proceedings.




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                                                  I.
                                         BACKGROUND
        In 1990, Doe was charged with battery with the intent to commit rape, Idaho Code § 18-
911, and forcible sexual penetration with a foreign object, I.C. § 18-6608. Pursuant to a plea
agreement, he pleaded guilty to the battery charge and the remaining offense was dismissed. The
district court imposed a unified sentence of six years, with two years fixed. Doe was paroled in
1994. Upon his release, Doe was required to register as a sex offender but, on his motion, in
2006 the district court released him from registration requirements after finding he was no longer
a risk to reoffend.
        In 2010, Doe filed a motion for an order sealing his criminal case file, as authorized by
Idaho Court Administrative Rule 32(i), on the ground that he had suffered economic harm
because of public access to information in that file. He said that some of his current employer’s
clients refused to allow him to work on their projects when background checks revealed that he
was a convicted felon. Doe also said that he aspired to become a fire marshal in his community,
and a background check disclosing his conviction might hinder his ability to obtain that office.
        At the conclusion of the hearing in Doe’s motion, which the State expressly did not
oppose, the district court orally denied the requested relief, explaining:
               I don’t think this rule is calculated to essentially preclude the public from
        knowing about a previous judgment and commitment that was entered or the
        crime for which an individual was convicted. . . . I think the rule relates to
        individuals other than the defendant in terms of potential, what I’m going to state,
        would be economic or financial loss or harm. I don’t think it applies to [Doe] as a
        defendant; i.e., that is, the consequences of having committed a felony may
        include financial or economic loss.

        The court then directed Doe to prepare an order for the court’s signature, and the order
drafted by Doe was issued. Doe appeals, contending that the district court abused its discretion
when it denied his motion.
                                                 II.
                                             ANALYSIS
        Decisions of a court to grant or deny a request to seal or redact a judicial record are
subject to review for abuse of discretion.    State v. Turpen, 147 Idaho 869, 872, 216 P.3d 627,
630 (2009). On review, we ask:



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               (1) whether the lower court rightly perceived the issue as one of
       discretion; (2) whether the court acted within the outer boundaries of such
       discretion and consistently with any legal standards applicable to specific choices;
       and (3) whether the court reached its decision by an exercise of reason.

State v. Watkins, 148 Idaho 418, 421, 224 P.3d 485, 488 (2009); State v. Hedger, 115 Idaho 598,
600, 768 P.2d 1331, 1333 (1989).
       Idaho’s public records law provides that “[e]very person has a right to examine and take a
copy of any public record of this state and there is a presumption that all public records in Idaho
are open at all reasonable times for inspection except as otherwise expressly provided by
statute.” I.C. § 9-338(1). Records within court files of judicial proceedings may be exempted
from disclosure, however, pursuant to rules adopted by the Idaho Supreme Court. I.C. § 9-340A.
The Court adopted Administrative Rule 32 to define when public access to judicial records may
be denied. The rule recognizes the public’s general “right to examine and copy the judicial
department’s declarations of law and public policy and to examine and copy the records of all
proceedings open to the public,” I.C.A.R. 32(a), but also authorizes a custodian judge to seal or
redact judicial records in limited circumstances. The 2010 version of I.C.A.R. 32(i), 1 which
applied when Doe filed his motion and the district court acted upon it, provided in part:
               Physical and electronic records may be disclosed, or temporarily or
       permanently sealed or redacted by order of the court on a case-by-case basis. Any
       interested person or the court on its own motion may move to disclose, redact,
       seal or unseal a part or all of the records in any judicial proceeding. The
       custodian judge shall hold a hearing on the motion after the moving party gives
       notice of the hearing to all parties to the judicial proceeding and any other
       interested party designated by the custodian judge. In ruling on whether specific
       records should be disclosed, redacted or sealed by order of the court, the court
       shall determine and make a finding of fact as to whether the interest in privacy or
       public disclosure predominates. If the court redacts or seals records to protect
       predominating privacy interests, it must fashion the least restrictive exception
       from disclosure consistent with privacy interests. Before a court may enter an
       order redacting or sealing records, it must also make one or more of the following
       determinations in writing:
               (1) That the documents or materials contain highly intimate facts or
       statements, the publication of which would be highly objectionable to a
       reasonable person, or
               (2) That the documents or materials contain facts or statements that the
       court finds might be libelous, or


1
       The rule has since been amended in 2011 and 2012.

                                                 3
               (3) That the documents or materials contain facts or statements, the
       dissemination or publication of which would reasonably result in economic or
       financial loss or harm to a person having an interest in the documents or
       materials, or compromise the security of personnel, records or public property of
       or used by the judicial department, or
               (4) That the documents or materials contain facts or statements that might
       threaten or endanger the life or safety of individuals, or
               (5) That it is necessary to temporarily seal or redact the documents or
       materials to preserve the right to a fair trial.
               In applying these rules, the court is referred to the traditional legal
       concepts in the law of the right to a fair trial, invasion of privacy, defamation, and
       invasion of proprietary business records as well as common sense respect for
       shielding highly intimate material about persons.

Doe requested that his criminal file be sealed under the authority of subsection (3) on the premise
that the file contains information that has resulted and will result in economic or financial loss to
him through an adverse effect on his employability.
       Doe first argues that a remand for reconsideration of his motion is necessary because the
district court failed to recognize that it possessed discretion to grant the requested relief. Doe
bases this contention on a portion of the district court’s written order that states:
              THE COURT FURTHER FINDS that I.C.A.R. 32(i) does not provide the
       Court with the authority to seal a criminal case in whole or with the authority to
       seal the charging documents and/or the judgment of conviction and sentence
       entered thereon.

Doe also finds fault with the district court’s further statement that:
               THE COURT FURTHER FINDS that the provisions of I.C.A.R. 32(i)(3)
       that speak to sealing a record, “. . . which would reasonably result in economic or
       financial loss or harm to a person having an interest in the documents . . .” do not
       apply to a convicted criminal defendant as such harm is the natural consequence
       of having committed a crime.

Doe asserts that these comments show that the district court erred in its interpretation of the rule
by holding that the type of economic harm he asserted as a convicted criminal defendant was not
cognizable under the rule.      Doe also argues that because the district court found the rule
inapplicable to him, it did not comply with the I.C.A.R. 32(i) requirement that “the court shall
determine and make a finding of fact as to whether the interest in privacy or public disclosure
predominates.”




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        Preliminarily we must address the State’s assertion that Doe invited the errors he now
raises on appeal. The State contends that because Doe, at the district court’s request, drafted the
order for the judge’s signature (after the court’s oral ruling), any inaccuracies or omissions
therein are at least partly Doe’s fault. The doctrine of invited error estops a party from asserting
an error when his or her own conduct induces the commission of the error. State v. Pentico, 151
Idaho 906, 915, 265 P.3d 519, 528 (Ct. App. 2011); State v. Atkinson, 124 Idaho 816, 819, 864
P.2d 654, 657 (Ct. App. 1993). One may not complain of errors one has consented to or
acquiesced in. State v. Caudill, 109 Idaho 222, 226, 706 P.2d 456, 460 (1985); State v. Lee, 131
Idaho 600, 605, 961 P.2d 1203, 1208 (Ct. App. 1998). In short, invited errors are not reversible.
State v. Gittins, 129 Idaho 54, 58, 921 P.2d 754, 758 (Ct. App. 1996).
        We disagree with the State’s contention that any errors in the written order were invited
by Doe. While the order drafted by Doe does not precisely replicate the district court’s ruling at
the hearing, its language is substantially consistent with the court’s oral pronouncements. At the
hearing, the district court did not make a finding of fact as to whether the interest in privacy or
public disclosure predominates, so the omission of such a finding from the written order is no
fault of Doe. We therefore hold that Doe’s appellate arguments are not precluded by the doctrine
of invited error.
        We proceed, then, to examine Doe’s claims of error. He argues that the court erred by
holding that as a matter of law I.C.A.R. 32(i) does not authorize the sealing of a criminal case
file at the request of the convicted defendant who claims that public access to those records is
causing or may cause economic harm. When interpreting a rule of our Supreme Court, Idaho
courts apply the same standards of construction as are utilized with statutes. Miller v. Haller, 129
Idaho 345, 350, 924 P.2d 607, 612 (1996). “We begin with an examination of the literal words of the
rule and give the language its plain, obvious and rational meaning.” Id.; State v. Trejo, 132 Idaho
872, 878, 979 P.2d 1230, 1236 (Ct. App. 1999).
        In 2010, Rule 32(i) provided that “any interested person . . . may move to disclose, redact,
seal or unseal a part or all of the records in any judicial proceeding.” The term “[a]ny interested
person” is broad in its sweep and does not exclude an individual convicted in a criminal case.
The rule also provided that case records could be sealed if the court found that “the documents or
materials contain facts or statements, the dissemination or publication of which would
reasonably result in economic or financial loss or harm to a person having an interest in the


                                                 5
documents or materials,” see I.C.A.R. 32(i)(3), and if the court further found that this privacy
interest predominated over the public’s interest in disclosure. Again, the language does not
preclude relief to a convicted criminal.
       Only two Idaho appellate decisions address the application of I.C.A.R. 32(i), and both
involve a request to seal a criminal case file. In Turpen, 147 Idaho 869, 216 P.3d 627, a person
who had been acquitted of a misdemeanor offense moved to seal his criminal case file, asserting
economic harm similar to that advanced by Doe in this case, but the magistrate denied the
motion. Our Supreme Court reversed and remanded because neither the parties nor the trial
court had recognized that the motion was governed by I.C.A.R. 32 and therefore the trial court
had not applied the standards set out in the rule. In State v. Gurney, 152 Idaho 502, 272 P.3d 474
(2012), the movant had pleaded guilty to a felony but, pursuant to Idaho Code § 19-2604(1), his
plea was later set aside and the case dismissed following his exemplary performance in drug
court. The movant asserted economic harm similar to that claimed by Doe. Our Supreme Court
held that the district court did not abuse its discretion when it determined that the public’s
interest in disclosure of the criminal proceedings predominated over the movant’s privacy
interest and that the criminal case file would not be sealed. Gurney, 152 Idaho at 504-05, 272
P.3d at 476-77. In neither case did the Supreme Court hold or imply that relief was unavailable
under I.C.A.R. 32(i)(3), as a matter of law, for a former criminal defendant (convicted or not)
who sought the sealing of a criminal case file, or that the type of economic harm asserted was not
cognizable under I.C.A.R. 32(i)(3).
       The State argues, however, that the rule’s inapplicability to the type of economic harm
claimed by Doe is made clear by the following sentence from I.C.A.R. 32(i): “In applying these
rules, the court is referred to the traditional legal concepts in the law of the right to a fair trial,
invasion of privacy, defamation, and invasion of proprietary business records as well as common
sense respect for shielding highly intimate or financially sensitive material about persons.”
According to the State, the reference to “invasion of proprietary business records” limits the
economic interest protected by the rule to business-related economic loss such as that which
could arise from revelation of trade secrets or similar proprietary information.              We are
unpersuaded.     The sentence in question broadly suggests factors for a custodian judge’s
consideration. It does not purport to impose a narrow and rigid boundary upon the type of
financial loss or economic interest that may be considered by a court on a motion to seal judicial


                                                  6
records. 2 We find in that sentence no intent by our Supreme Court that I.C.A.R. 32(i)(3) is to
protect only businesses’ economic interests while leaving the personal financial interests of
individuals unprotected.
       We conclude that Rule 32(i) gives the court discretion to consider the many types of
economic or financial loss that may be reasonably asserted as a claimed justification for sealing
court records, including financial harm asserted by those convicted of crimes. Therefore, we
hold that the district court here misinterpreted the rule and consequently did not recognize that it
possessed discretion to order the sealing of a criminal record in this circumstance.
       That is not to suggest, however, that the motion must be granted here or in any similar
case. On remand, the district court will have broad discretion to determine whether Doe’s claim
of economic harm is so compelling as to outweigh the overarching public interest in disclosure.
Because the public interest in access to criminal court records is obviously weighty, we surmise
it would be an exceptional circumstance where a custodian judge would find that interest
exceeded by a convicted person’s assertion of economic harm flowing from the conviction. But
this surmise is not a substitute for the custodian judge’s proper application of the rule by making
the required finding as to whether the movant’s interest in privacy or the public interest in
disclosure predominates.
       Therefore, the district court’s order is vacated and this case is remanded for further
consideration of Doe’s motion in accordance with this opinion.



2
        We note that the district court that denied a defendant’s motion for sealing a criminal
case file in Gurney apparently took the position that is argued by the State here. According to
the Gurney opinion:
        The district court reasoned that the “economic or financial loss or harm”
        contemplated by the rule was related to the “traditional legal concepts in the law
        of . . . invasion of proprietary business records.” The district court held that
        Gurney’s harm is distinguishable from the type of harm contemplated by the Rule
        and, in any case, was predominated by the public interest in disclosure as stated in
        I.C.A.R. 32(a).
Gurney, 152 Idaho at 505, 272 P.3d at 477. Thus, the district court there expressed alternative
bases for its decision--that the claimed harm was not covered by the rule and, even if it was, the
claimed harm was outweighed by the public interest. The Idaho Supreme Court neither
expressly endorsed nor expressly rejected the first alternative basis, but held that the court
“complied with the requirement of the rule by issuing a finding of fact that ‘the public’s right to
know predominates over Mr. Gurney’s desire to seal his records,’” id., and the Supreme Court
held that this constituted a proper exercise of the district court’s discretion.

                                                 7
        Judge MELANSON CONCURS.
        Chief Judge GRATTON, SPECIALLY CONCURRING
        I concur. However, I write separately only1 in an effort to further address the question of
the types of privacy interests which Idaho Court Administrative Rule 32 contemplates may
support sealing of otherwise public documents.
        Rule 32 requires a determination whether an individual’s privacy interest or the public’s
interest in disclosure predominates. The rule requires a finding, in writing, of one of several
privacy interests:
                (1) That the documents or materials contain highly intimate facts or
        statements, the publication of which would be highly objectionable to a
        reasonable person, or
                (2) That the documents or materials contain facts or statements that the
        court finds might be libelous, or
                (3) That the documents or materials contain facts or statements, the
        dissemination or publication of which would reasonably result in economic or
        financial loss or harm to a person having an interest in the documents or
        materials, or compromise the security of personnel, records or public property of
        or used by the judicial department, or
                (4) That the documents or materials contain facts or statements that might
        threaten or endanger the life or safety of individuals, or
                (5) That it is necessary to temporarily seal or redact the documents or
        materials to preserve the right to a fair trial.

I.C.A.R. 32(i) (emphasis added).        As can be readily seen, the privacy interests apparently
contemplated by the rule include those in documents containing highly intimate facts or libelous
statements and information which may compromise security, threaten or endanger the life or
safety of individuals, or impact a fair trial. In fact, consistently, the rule further states:
                In applying these rules, the court is referred to the traditional legal
        concepts in the law of the right to a fair trial, invasion of privacy, defamation, and
        invasion of proprietary business records as well as common sense respect for
        shielding highly intimate material about persons.

        The tension in this case appears to come from attempting to square the types of privacy
interests highlighted above with the additional privacy interest identified in subsection (3)
regarding documents “the dissemination or publication of which would reasonably result in

1
       By its terms, Rule 32 applies to “records in any judicial proceeding.” Therefore, records
in criminal proceedings, being judicial, are not categorically excluded from application of the
rule.

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economic or financial loss or harm to a person.” The privacy interests highlighted above are
those, or are akin to those, protectable--outside the public record domain--through independent
causes of action. The State asks us to similarly construe the “economic or financial loss or
harm” interest, citing specifically the reference in the last quote above to “invasion of proprietary
business records.” In other words, the State contends that the “economic or financial loss or
harm” interest is not just any incidental or consequential loss or harm which could flow from
information in a judicial record, but that which has the same protectable privacy interest quality
and character as the other referenced interests. In this case, the economic or financial loss or
harm alleged may be characterized as lost occupational income or opportunity because of
documents reflecting a felony conviction. The State would have us hold, categorically and as a
matter of law, that such alleged loss does not implicate a privacy interest cognizable under the
rule. The district court agreed with the State, holding that the provisions of Rule 32(i)(3) “do not
apply to a convicted criminal defendant as such harm is the natural consequence of having
committed a crime.”
       Rule 32(i)(3) does not expressly exclude lost occupational income or opportunity from
the economic or financial loss or harm set out in the rule. Nor does Rule 32(i)(3) expressly
exclude criminal conviction documents from being that “the dissemination or publication of
which would reasonably result in economic or financial loss or harm.” 2 The sentence in the rule
which directs the court to certain traditional legal concepts “in applying these rules,” is not an
express categorical limitation, but a direction in the analysis to be employed by the court. If lost
occupational income or opportunity resulting from disclosure of criminal conviction information
were categorically excluded from Rule 32(i) by its terms, or as a matter of law in application of
the “traditional legal concept” language, the Idaho Supreme Court in State v. Gurney, 152 Idaho
502, 272 P.3d 474 (2012) or State v. Turpen, 147 Idaho 869, 216 P.3d 627 (2009), could have
easily so held, but did not do so. Therefore, the proper analysis is to consider the economic or
financial harm or loss alleged in light of the “traditional legal concepts” set out in the rule and
then weigh any privacy interest identifiable therefrom with the public’s right to know to
determine which predominates.



2
        The district court also held that Rule 32(i) does not provide the court with “authority to
seal the charging documents and/or the judgment of conviction and sentence entered thereon.”

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       I cannot agree with the majority’s opinion with respect to the import of the sentence in
the rule relating to the application of the traditional legal concepts identified therein. The
majority states that the sentence “broadly suggests factors” for the court’s consideration and
“does not purport to impose a narrow and rigid boundary upon the type of financial loss or
economic interest that may be considered.” On the contrary, I believe the sentence is, in fact,
intended to rather narrowly circumscribe the financial loss or economic interests contemplated in
the rule to those which are consistent with the identified “traditional legal concepts.” The point
is that the privacy interest asserted must be akin to the privacy interests protected within those
“traditional legal concepts.”    Therefore, I do think that there may be categories of public
documents and information that simply do not constitute the type of privacy interest
contemplated within the rule. However, on the state of this record I am not inclined to so hold.
The district court here stated that the asserted “harm is the natural consequence of having
committed a crime.” While perhaps the court was attempting to state that the privacy interest or
financial loss alleged here is not consistent with application of the “traditional legal concepts,” it
did not so state. In addition, even with such a determination, Gurney appears to further require
the issuance of a finding of fact that the public’s right to know predominates over any interest of
the movant. Consequently, I join in remanding to the district court for further proceedings.




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