               IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                        Docket No. 41462

STATE OF IDAHO,                                  ) 2014 Opinion No. 108
                                                 )
       Plaintiff-Respondent,                     ) Filed: December 19, 2014
                                                 )
v.                                               ) Stephen W. Kenyon, Clerk
                                                 )
JONATHAN A. COLLINS,                             )
                                                 )
       Defendant-Appellant.                      )
                                                 )

       Appeal from the District Court of the Fourth Judicial District, State of Idaho, Ada
       County. Hon. Melissa Moody, District Judge.

       Order denying motion to seal court record, affirmed.

       Sara B. Thomas, State Appellate Public Defender; Ben P. McGreevy, Deputy
       Appellate Public Defender, Boise, for appellant.

       Hon. Lawrence G. Wasden, Attorney General; John C. McKinney, Deputy
       Attorney General, Boise, for respondent.
                 ________________________________________________

GUTIERREZ, Chief Judge
       Jonathan A. Collins appeals from the order of the district court denying Collins’ motion
to seal his court record. For the reasons that follow, we affirm.
                                                 I.
                                  FACTS AND PROCEDURE
       Collins was charged by criminal complaint with lewd conduct with a minor child under
sixteen after a three-year-old child allegedly told her mother that Collins touched her
inappropriately. After Collins waived a preliminary hearing, an information was filed alleging
lewd conduct with a minor child under sixteen.          Collins subsequently moved to suppress
statements made by him, including statements during a police interview, alleging that the
statements were coerced and made in violation of Miranda. 1 Prior to a hearing on the motion to

1
       See Miranda v. Arizona, 384 U.S. 436 (1966).
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suppress, Collins filed a notice of intent to use evidence that would be subject to Idaho Rule of
Evidence 404(b). Specifically, the Rule 404(b) evidence was that the child’s mother had made a
false statement after she committed the offenses of driving under the influence and leaving the
scene of an accident. More importantly, there was also evidence that the mother had filed a false
police report, claiming she had been kidnapped and raped. A day before the hearing on the
motion to suppress, the State filed a motion to dismiss because, “In the interest of justice, the
State no longer wishes to proceed with this matter.” The court entered an order dismissing the
charge.
          More than eighteen months after the lewd conduct charge was dismissed, Collins filed a
motion to seal the court record. See Idaho Court Administrative Rule 32(i) (providing authority
for a court to seal a record). Collins averred that he had been denied employment on two
occasions due to public access to the case, that he feared parolees and probationers with whom
he attended meetings could harm him if they discovered the charge, and that the court record
contained statements that may be libelous. The district court conducted a hearing at which
Collins rested on his brief and the State deferred to the court. After stating that it was a “very,
very close call,” the court found that the public interest in disclosure outweighed Collins’
interests in having the court record sealed. However, the court noted that it would reconsider its
ruling if Collins could show evidence that the prosecution had filed the charge in bad faith or for
an improper purpose, or that probable cause did not exist at the time the charge was filed. The
court subsequently entered an order summarizing its discussion at the hearing and denying the
motion to seal. Collins appeals from this order.
                                                 II.
                                            ANALYSIS
          Under Idaho’s public records law, “[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.”
Idaho Code § 9-338(1). However, section 9-340A(2) recognizes that records contained in court
files of judicial proceedings may be exempted from disclosure, under rules promulgated by the
Idaho Supreme Court. Thus, the Idaho Supreme Court adopted Idaho Court Administrative
Rule 32 to define when public access to judicial records may be denied. Doe v. State, 153 Idaho



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685, 687, 290 P.3d 1277, 1279 (Ct. App. 2012). This Court recently explained the policy behind
Rule 32:
              Rule 32 reflects the recognized policy that “the public has a 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”
       consistent with the public’s constitutional right to know what transpires in
       criminal proceedings. Indeed, as explained by the United States Supreme Court,
       “[T]he First Amendment goes beyond protection of the press and the self-
       expression of individuals to prohibit government from limiting the stock of
       information from which members of the public may draw.” Richmond
       Newspapers, Inc. v. Virginia, 448 U.S. 555, 575-56 (1980) (quoting First Nat’l
       Bank of Boston v. Bellotti, 435 U.S. 765, 783 (1978)). In the context of criminal
       proceedings, the public has a right, protected by the First Amendment, to know
       what goes on in its courts. Richmond Newspapers, 448 U.S. at 576.
               Striking a balance between the public’s constitutional right to access
       criminal records and the privacy rights of individuals, Rule 32 exempts from
       disclosure highly private information such as presentence investigations reports,
       most unreturned warrants, documents that would identify jurors on a Grand Jury,
       and jury questionnaires.

State v. Allen, 156 Idaho 332, 336, 325 P.3d 673, 677 (Ct. App. 2014).
       Under Rule 32(i), any interested person may move the court to seal a part of or all of the
record in any judicial proceeding. Rule 32(i) requires that the court conduct a hearing on the
motion. In ruling upon the motion, the court must “determine and make a finding of fact as to
whether the interest in privacy or public disclosure predominates.” I.C.A.R. 32(i). A party
seeking to seal the record bears the burden of demonstrating that the party’s privacy interest
predominates over the public interest in disclosure. See State v. Gurney, 152 Idaho 502, 504 n.1,
272 P.3d 474, 476 n.1 (2012). For the court to seal the court record, the court must first 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
               (3) That the documents or materials contain facts or statements, the
       dissemination or publication of which may compromise the financial security of,
       or could 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

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                 (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). When the court is considering whether to seal the record, Rule 32(i) directs the
court to consider “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.” Id. If the court seals the record, “it
must fashion the least restrictive exception from disclosure consistent with privacy interests.” Id.
          We review the district court’s decision to grant or deny relief under Rule 32(i) for an
abuse of discretion. Gurney, 152 Idaho at 503, 272 P.3d at 475; Allen, 156 Idaho at 336, 325
P.3d at 677. When a trial court’s discretionary decision is reviewed on appeal, the appellate
court conducts a multi-tiered inquiry to determine:         (1) whether the lower court correctly
perceived the issue as one of discretion; (2) whether the lower court acted within the boundaries
of such discretion and consistently with any legal standards applicable to the specific choices
before it; and (3) whether the lower court reached its decision by an exercise of reason. Gurney,
152 Idaho at 503, 272 P.3d at 475; State v. Hedger, 115 Idaho 598, 600, 768 P.2d 1331, 1333
(1989).
          On appeal, Collins argues that the district court abused its discretion by denying his
motion to seal because it did not act consistently with the applicable legal standards.
Specifically, Collins contends that the district court did not consider that the documents or
material in Collins’ court record contain facts or statements that might be libelous. Collins also
asserts that the court did not adequately consider the financial loss suffered by him. Finally,
Collins argues that the district court did not adequately consider that public access to the court
record may threaten his safety. We address these in turn.
A.        Libelous Statements
          Collins contends that the district court did not consider that the documents or materials in
Collins’ court record contain facts or statements that might be libelous. See I.C.A.R. 32(i)(2).
Specifically, Collins asserts that the child’s mother had a history of lying to police and her
history “indicates that she was also lying about Collins’ alleged lewd conduct.” The State argues
that the district court did not abuse its discretion because even if the mother lied before, it does
not mean that she lied about this charge. In addition, the State refers this Court to statements



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Collins made during a police interview in which he acknowledged touching the child’s genitalia,
over the child’s clothing.
       During a recorded police interview, Collins acknowledged touching the child’s genitalia,
over the child’s clothing, for a second. Collins even demonstrated on a doll how he touched the
child, and he stated that after he touched the child, he thought to himself, “Oh sh*t, that
shouldn’t have happened.” The recorded police interview was included on a DVD that was
attached to Collins’ memorandum in support of his motion to suppress or dismiss. However, the
motion to suppress or dismiss argued that the statements were coerced, not consensual, and made
in violation of Miranda. Although a hearing was scheduled on this motion, the hearing never
occurred because the State moved to dismiss the case prior to the hearing.
       In considering a party’s privacy interest and comparing it to the public’s interest in
disclosure, and determining whether to seal the record, the court considering the motion to seal
must examine the court record in conjunction with the motion and any argument or evidence
presented at the hearing. Because Collins specifically moved the court to seal the record while
contending that the record contained libelous statements, the entire record is relevant to
considering whether the statements are libelous. In this case, Collins’ statements during the
police interview, which are a part of the court record, acknowledging that he inappropriately
touched the child indicate that the record does not contain libelous statements from the mother.
Because Collins has not shown that there is any libelous information in his court record, we
cannot say that the district court abused its discretion in considering Collins’ argument about the
court record containing libelous statements. See Allen, 156 Idaho at 337, 325 P.3d at 678
(concluding that the district court did not abuse its discretion by denying Allen’s motion to seal
his court record because he “failed to show, either to the district court or on this appeal, that there
is any libelous information in his criminal file”).
B.     Financial Loss
       Collins also asserts that the court did not adequately consider the financial loss suffered
by him.    In his motion, Collins asserted that two prospective employers had denied him
employment because of “his association” with this case “due to public access to this case on the
repository.” See I.C.A.R. 32(i)(3). Because of this financial loss, Collins contends on appeal
that the court should have sealed the record. The State argues that the court did not abuse its



                                                  5
discretion, contending that Collins has simply asserted that the district court did not give his
financial loss argument the weight Collins’ desires.
       Relevant to this issue, two facts weigh in favor of Collins’ privacy interest. Unlike other
Rule 32(i) appeals that have arisen with claims that the party’s financial loss should be
considered, this case does not involve a conviction, but involves a dismissal of the charge prior
to trial. In addition, Collins alleged that his financial loss was due to the public access to the
repository data, implying that if the record was sealed (and thus no longer available in the
repository) he would not have been denied employment. The dismissal and Collins’ assertion of
financial loss weigh in favor of his privacy interest. Compare Doe, 153 Idaho at 690, 290 P.3d at
1282 (recognizing that Doe’s claim of financial loss--that his current employer’s clients refused
to allow him to work on their projects when background checks revealed that he was a convicted
felon--should have been considered by the district court and weighed against the public interest
in disclosure), with Allen, 156 Idaho at 337, 325 P.3d at 678 (addressing Allen’s claim that his
felony conviction made it more difficult for him to obtain employment and concluding that Allen
“did not, however, explain how the sealing of his record would make any difference”).
       Even though Collins asserted facts that weigh in favor of his privacy interest, one other
significant fact weighs against Collins’ privacy interest and weighs in favor of the public’s
interest in disclosure. This is the fact that Collins acknowledged during the police interview that
he had inappropriately touched the child. With this fact, we are persuaded that the district court
adequately considered and weighed Collins’ privacy interest while accounting for the financial
loss suffered by Collins, as compared to the public interest in disclosure.
C.     Safety
       Finally, Collins argues that the district court did not adequately consider that public
access to the court record may threaten his safety. See I.C.A.R. 32(i)(4). Specifically, Collins
asserted in his motion that he “regularly attends Alcoholics Anonymous with parolees and
probationers who[m], he fears, could harm him if they were to discover he had once been
charged with a sex offense.” The State argues that the district court did not abuse its discretion
by denying the motion to seal, because Collins’ assertion is mere speculation and because the
district court adequately considered Collins’ privacy interest.
       Collins did not provide evidence of or assert that he had actually suffered harm as a result
of the court record nor demonstrate a credible threat to his safety due to the court record. Rather,

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Collins only speculated on what may happen to him, without any basis in fact. This argument is
too speculative to warrant any relief under Rule 32(i). Moreover, even if the argument were to
weigh in favor of Collins’ privacy interest, this privacy interest is outweighed by the public
interest in disclosure due to Collins’ statements acknowledging that he inappropriately touched
the child. Therefore, we cannot say that the district court abused its discretion in considering
Collins’ argument concerning his safety.
                                               III.
                                        CONCLUSION
       The district court did not abuse its discretion by denying Collins’ motion to seal the court
record. Accordingly, we affirm the order denying Collins’ motion to seal the court record.
       Judge LANSING and Judge MELANSON, CONCUR.




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