COLORADO COURT OF APPEALS                                      2017COA132


Court of Appeals No. 16CA1542
Arapahoe County District Court No. 14MH13
Honorable Theresa M. Slade, Judge


The People of the State of Colorado,

Petitioner-Appellee,

In the Interest of T.T.,

Respondent-Appellant.


                           ORDER REVERSED AND CASE
                           REMANDED WITH DIRECTIONS

                                    Division VI
                              Opinion by JUDGE FOX
                               Richman, J., concurs
                               Bernard, J., dissents

                            Announced October 19, 2017


Ronald A. Carl, County Attorney, Virginia Byrnes Horton, Assistant County
Attorney, Aurora, Colorado, for Petitioner-Appellee

Combs & Recht, LLC, James C. Recht, Castle Rock, Colorado, for Respondent-
Appellant
¶1        After respondent, T.T., was released from involuntary mental

 health treatment pursuant to section 27-65-110, C.R.S. 2017, he

 unsuccessfully attempted to have his name removed from the

 district court’s index of cases, invoking section 27-65-107(7), C.R.S.

 2017. T.T. appeals the district court’s order denying his motion to

 omit his name from the district court’s index of cases. We reverse

 the district court’s order and remand with directions.

                              I.    Background

     A.   Involuntary Treatment and First Order Denying T.T.’s Motion

¶2        According to T.T.’s then treating physician, T.T. suffered from

 “severe symptoms . . . that lead to [the] development of [a] grave

 disability.” Although T.T. had accepted voluntary treatment, the

 physician believed that T.T. would “not remain in a voluntary

 program,” so he filed a certification for the short-term treatment of

 T.T. pursuant to section 27-65-107. The district court then issued

 a notice of certification for short-term treatment and appointed

 counsel to represent T.T. Six days later, the physician filed a notice

 of termination of involuntary treatment in accordance with section

 27-65-110, noting that T.T. “has had significant improvement” and

 “is no longer gravely disabled.”


                                       1
¶3        About two years after he was released from involuntary

 treatment, T.T. went to the district court and learned that his name

 still appeared on the court’s index of cases. He asked the clerk to

 remove his name from the index, but the clerk refused. About two

 months later, T.T. filed a pro se motion with the district court

 requesting that his name be omitted from the court’s index in

 accordance with section 27-65-107(7). The district court denied

 T.T.’s motion without making any factual findings or legal

 conclusions, and T.T. appealed.

     B.     Limited Remand and Second Order Denying T.T.’s Motion

¶4        A division of this court issued an order remanding the case for

 the district court to hold a hearing on the matter and to make

 findings of fact and conclusions of law.

¶5        At the hearing, in describing “the life of a mental health case”

 in general, the district court judge discussed applicable law and a

 “Best Practices policy for mental health cases.” The judge also

 discussed conversations she initiated with her staff and the clerk’s

 office staff about record-keeping procedures for mental health

 cases. The judge stated that, according to an unidentified staff

 member, there is a “computer name index” (the Eclipse system)


                                       2
 used for case materials; mental health records are included but are

 kept separately in a secure location accessible only by court order,

 and they remain “indexed only for the purposes of maintaining

 order to the file[.]” According to the staff member, the judge stated

 that it may be possible to electronically search for a name in the

 Eclipse system and discover that a related mental health case

 exists, but “it would be clear that the case was sealed” and that the

 person searching was “not permitted to view it.” The judge further

 explained that the staff member claimed that she could not delete a

 name from the Eclipse system even if ordered to do so. After

 generally discussing mental health record-keeping procedures, the

 district court judge discussed the procedures that were supposedly

 followed in the underlying case.

¶6    T.T. objected and moved to strike the court’s references to

 what it learned “from other clerks” because T.T. had no opportunity

 to confront those people. The district court judge denied the

 motion, explaining that, as the then presiding judge over the mental

 health division, she was concerned that T.T. may allege that proper

 procedures were not followed and that she “needed to — and

 arguably as the presiding judge should already know, the


                                    3
 procedures and whether we’re following them.” The judge explained

 that she did not speak with staff about this particular case, but

 rather about record-keeping procedures generally.

¶7    T.T.’s attorney later attempted to admit two exhibits into

 evidence. The first exhibit consisted of excerpts from Office of State

 Court Administrator v. Background Info. Servs., Inc., 994 P.2d 420,

 423 (Colo. 1999). The second exhibit was a series of stipulated

 facts, initially filed before the hearing, admitting that (1) T.T.’s then

 treating physician filed a notice of certification and certification of

 short-term treatment pursuant to section 27-65-107; (2) the

 physician later filed a notice of termination of involuntary treatment

 pursuant to section 27-65-110; and (3) T.T.’s name “has never been

 omitted from the index of cases of the court under [section]

 27-65-107(7).” The stipulation further provided that T.T. would not

 object if opposing counsel makes an offer of proof that “since the

 enactment of [section] 27-65-107(7), the Arapahoe County District

 Court has never omitted the name of any respondent from the index

 of cases of the court.” Concerning the first exhibit, the district

 court noted that it was “more of an argument” and that the cases

 the exhibit referenced were previously cited in filings in the


                                     4
  underlying case. The court explained that, while it would consider

  the cases in making its final determination, it would not admit the

  case into evidence. Regarding the second exhibit, the district court

  explained that the stipulation was a “pleading” previously filed in,

  and considered by, the court, and it did not need to be admitted

  into the court file as an evidentiary exhibit.

¶8     T.T.’s attorney also requested that T.T. be allowed to testify,

  but the district court declined the request, explaining that T.T.’s

  expected testimony was not relevant to the central issue of what

  “index of cases” meant as used in section 27-65-107(7).

¶9     On May 30, 2017, the district court granted in part T.T.’s

  motion to omit his name from the index, directing the Arapahoe

  County Clerk to omit T.T.’s name from “any list generated or

  produced, even for the purposes of storage.” The court also denied

  the motion in part, stating that T.T.’s name shall “remain in the

  [Eclipse] database for the purposes of the Clerk of Court’s

  maintenance of records and to comply with Section 27-65-107(7).”

                    II.   Name Omission Requirement

¶ 10   T.T. argues that the district court erred in denying his motion

  because, based on the pertinent statutes’ plain language and the


                                     5
  stipulated facts, the court clerk should have omitted T.T.’s name

  from the Eclipse system when T.T. was released from treatment.

  T.T. further asserts that refusing to omit his name from the Eclipse

  system is contrary to the legislature’s express intent to provide the

  fullest possible measure of privacy to people receiving treatment for

  a mental health disorder. We agree.

               A.    Preservation and Standard of Review

¶ 11   The parties agree that this issue has been properly preserved.

¶ 12   Statutory interpretation is a question of law that we review de

  novo. Kyle W. Larson Enters., Inc. v. Allstate Ins. Co., 2012 COA

  160M, ¶ 9. “We read words and phrases in context and construe

  them literally according to common usage unless they have

  acquired a technical meaning by legislative definition.” People

  v. Yascavage, 101 P.3d 1090, 1093 (Colo. 2004). We consider the

  statute as a whole, interpreting it in a manner giving “consistent,

  harmonious, and sensible effect to all its parts,” and we “should not

  interpret the statute so as to render any part of it either

  meaningless or absurd.” Lujan v. Life Care Ctrs. of Am., 222 P.3d

  970, 973 (Colo. App. 2009).




                                     6
¶ 13   In construing legislation, we look first to the plain language of

  the statute; then, if the language is ambiguous, we “construe the

  statute in light of the General Assembly’s objective.” Anderson

  v. Vail Corp., 251 P.3d 1125, 1127-28 (Colo. App. 2010). “A statute

  is ambiguous only if it is fairly susceptible of more than one

  interpretation.” Kyle W. Larson Enters., Inc., ¶ 11. “The plainness

  or ambiguity of statutory language is determined by reference to the

  language itself, the specific context in which that language is used,

  and the broader context of the statute as a whole.” People v. Nance,

  221 P.3d 428, 430 (Colo. App. 2009) (citation omitted).

                          B.    Applicable Law

                          1.    Public Records

¶ 14   “[T]he courts of this country recognize a general right to

  inspect and copy public records.” Pierce v. St. Vrain Valley Sch.

  Dist. RE-1J, 981 P.2d 600, 605 (Colo. 1999) (quoting Nixon

  v. Warner Commc’ns, Inc., 435 U.S. 589, 597 (1978)). The public

  policy of Colorado similarly favors making official records accessible

  to the public. See § 24-72-201, C.R.S. 2017; see also Chief Justice

  Directive 05-01, Public Access to Court Records, § 1.00(a)(1)

  (amended Oct. 18, 2016) (CJD 05-01). This right, however, is not


                                    7
  absolute. See Nixon, 435 U.S. at 598; see also CJD 05-01 § 4.60(b)

  (noting the types of case records, including indices in mental health

  cases, that are not accessible to the public). Public access to official

  records is meant to advance “citizens’ right to be informed about

  ‘what their government is up to,’” not merely to disclose

  “information about private citizens that is accumulated in various

  governmental files but that reveals little or nothing about an

  agency’s own conduct.” U.S. Dep’t of Justice v. Reporters Comm. For

  Freedom of Press, 489 U.S. 749, 773 (1989) (citation omitted).

¶ 15   Specifically regarding judicial records, the Colorado legislature

  did not intend court records to be open to public inspection for all

  purposes under the Public Records Act. Background Info. Servs.,

  Inc., 994 P.2d at 426. When the legislature chooses to address and

  resolve the balance between the public’s interest in accessing

  records and a private individual’s interest in privacy, “its specific

  intent clearly governs,” as evidenced in statutes such as section

  27-65-107. Id. at 429.

              2.    Court Indices and Mental Health Cases

¶ 16   Section 27-65-107(7) states the following:




                                     8
             Records and papers in proceedings under this
             section and section 27-65-108 shall be
             maintained separately by the clerks of the
             several courts. Upon the release of any
             respondent in accordance with the provisions
             of section 27-65-110, the facility shall notify
             the clerk of the court within five days of the
             release, and the clerk shall forthwith seal the
             record in the case and omit the name of the
             respondent from the index of cases in such
             court until and unless the respondent becomes
             subject to an order of long-term care and
             treatment pursuant to section 27-65-109 or
             until and unless the court orders them opened
             for good cause shown. In the event a petition
             is filed pursuant to section 27-65-109, such
             certification record may be opened and become
             a part of the record in the long-term care and
             treatment case and the name of the
             respondent indexed.

¶ 17   The legislative declaration found in section 27-65-101(1)(c),

  C.R.S. 2017, states that one of “the purposes of this article [is]

  . . . [t]o provide the fullest possible measure of privacy, dignity, and

  other rights to persons undergoing care and treatment for a mental

  health disorder.” This section also provides that, in order to “carry

  out these purposes, . . . the provisions of this article shall be

  liberally construed.” § 27-65-101(2).

¶ 18   Although no Colorado statute defines the term “index of

  cases,” section 13-1-101, C.R.S. 2017, requires clerks of Colorado’s



                                      9
  “courts of record” — including district courts — to “keep in their

  respective offices suitable books for indexing the records of their

  said offices, one to be known as the direct index and one as the

  inverse index.” Section 13-1-102, C.R.S. 2017, further provides

  that, “[i]n said indexes, the clerks shall properly enter the title of

  each cause . . . and the case number references to the various

  [filings] and other proceedings of the court in such cause.”

¶ 19   While the Colorado Supreme Court has detailed various

  historical uses of electronic databases for storing case records, see

  Background Info. Servs., Inc., 994 P.2d at 423, neither party cites to,

  and we are unaware of, any Colorado precedent explaining how

  clerks are to keep an “index of cases” in any given court, including

  computerized indices.

                               C.    Analysis

¶ 20   As a preliminary matter, court records for mental health cases,

  including indices, are not open to public access. See id. at 429; see

  also CJD 05-01 §§ 3.03(a)(3), 4.60(b)(5). Although the district court

  did not conclude whether and to what extent T.T. was able to

  access his case file at the district court clerk’s office, the alleged

  public disclosure by the district court clerk of T.T.’s case records


                                      10
  was clearly prohibited. See § 27-65-121(1), C.R.S. 2017 (Subject to

  limited exceptions, “all information obtained and records prepared

  in the course of providing any services pursuant to this article

  65 . . . are confidential and privileged matter.”); see also CJD 05-01

  §§ 3.03(a)(3), 4.60(b)(5).

¶ 21   The plain language of section 27-65-107(7) requires that,

  subject to exceptions not applicable here, “the clerk shall . . . omit

  the name of the respondent from the index of cases in such court”

  after the clerk is notified of the respondent’s release from

  involuntary treatment pursuant to section 27-65-110. See

  Yascavage, 101 P.3d at 1093. One of the definitions of “index”

  provided by Merriam-Webster is “a list (as of bibliographical

  information or citations to a body of literature) arranged usually in

  alphabetical order of some specified datum (such as author,

  subject, or keyword).” Merriam-Webster Dictionary,

  https://perma.cc/H9NZ-QV5R. In section 27-65-107(7), the term

  “index” refers to a single “index of cases,” is not used again in the

  statute, and is not defined by this or any other Colorado statute.1


  1Montana’s parallel statutory provision also does not define or
  explain the term “index.” See Mont. Code Ann. § 53-21-103 (2017)

                                     11
  See Anderson, 251 P.3d at 1127-28; Nance, 221 P.3d at 430.

  Because of the language’s statutory context and the various paper

  and electronic methods available to district court clerks to keep

  records of case names and numbers, as mentioned by the parties

  and the district court, we determine that the phrase “omit the name

  of the respondent from the index of cases in such court” is

  ambiguous. See Kyle W. Larson Enters., Inc., ¶ 11.

¶ 22   We therefore construe the language at issue liberally and in

  light of the General Assembly’s objective: to “provide the fullest

  possible measure of privacy, dignity, and other rights to persons

  undergoing care and treatment for a mental health disorder.”

  § 27-65-101(1)(c); § 27-65-101(2) (“[T]he provisions of this article

  shall be liberally construed.”); see also Anderson, 251 P.3d at

  1127-28.

¶ 23   The record indicates that the district court clerk records case

  names and numbers in the Eclipse system, and the Eclipse system

  is then used to generate other lists of case names and numbers —

  (requiring the clerk to “seal the record in the case and omit” the
  affected person’s name “from the index or indexes of cases”); see
  also T.L.S. v. Mont. Advocacy Program, 144 P.3d 818, 823 (Mont.
  2006) (interpreting section 53-21-103 to allow the disclosure of
  certain redacted sealed documents).

                                    12
  such as lists of open cases, closed cases, and mental health and

  juvenile cases (to later find the separately kept records and

  materials). The record contains no evidence of a paper list or

  volume or an electronic record apart from the Eclipse system kept

  by the district court clerk to index all cases in that court in

  compliance with sections 13-1-101 and -102. Moreover, the People

  specifically stipulated that T.T.’s name was not “omitted from the

  index of cases of the court under [section] 27-65-107(7).” We

  therefore conclude that, on the facts of this case, the term “the

  index of cases” in section 27-65-107(7) (emphasis added) refers to

  the Eclipse system, not merely the various sub-indices generated

  from the Eclipse system’s data. To conclude otherwise would

  render the statute’s reference to a single index meaningless and

  would fail to fulfill the statute’s stated purpose of maximizing the

  privacy of the mental health treatment recipients referenced in the

  statute. See Lujan, 222 P.3d at 973; see also § 27-65-101(1)(c).

¶ 24   While the General Assembly obligates court clerks to keep

  records and index cases, see §§ 13-1-101, -102, identifying

  information (including names) is often omitted from court records

  and case names as required in the interest of privacy; for example,


                                     13
  the full names of victims of sexual assault and children are omitted

  in various contexts and replaced with initials or some other

  reference excluding identifiable information. See, e.g., In re People

  in Interest of A.A., 2013 CO 65, ¶ 3 (referring to a juvenile defendant

  accused of sexual assault on a child by the defendant’s initials and

  referring to the victim as “one of [the defendant’s] neighbors”);

  People in Interest of C.S., 2017 COA 96, ¶¶ 1-3 (referring to the child

  involved in a dependency and neglect proceeding by the child’s

  initials or as “child” only).

¶ 25   Consequently, we disagree with the People’s contentions that

  omitting T.T.’s name from the Eclipse system would cause the court

  record of the case to be “obliterated” and would make it impossible

  for the clerk to re-index T.T.’s name as required by statute should

  T.T. become subject to an order of long-term care pursuant to

  section 27-65-109, C.R.S. 2017, or should the court order T.T.’s

  case records opened for good cause. See § 27-65-107(7). Based on

  the regular, orderly handling of cases in other contexts where party

  names are omitted from case names, there is no reasonable basis to

  conclude that omitting T.T.’s name from the Eclipse system by

  using his initials or another similar method would destroy the


                                    14
  entire case record or prevent the district court clerk from

  re-indexing T.T.’s full name should the need arise.

¶ 26   Accordingly, we reverse the district court’s May 30, 2017,

  order and remand for the district court to order that T.T.’s name be

  omitted from the Eclipse system and lists generated from the

  Eclipse system’s data by use of T.T.’s initials or any other method

  omitting identifying information that the district court chooses to

  employ in accordance with this opinion.

¶ 27   Because we reverse the challenged order on these grounds, we

  need not address T.T.’s other arguments for reversal. See In re

  Marriage of Krejci, 2013 COA 6, ¶ 10 (declining to address a party’s

  remaining claims of error where one was sufficient to reverse the

  trial court’s ruling).2


  2 The district court was understandably proactive in learning about
  the filing systems at issue. However, an evidentiary hearing with
  counsel for any relevant witnesses would have created a more
  useful record for this court to review, allowing the trial court to
  remain as an impartial decision-maker. See Colo. Attorney Gen.’s
  Office, State Services, https://perma.cc/CF4Y-3QCU (“The Public
  Officials Unit [of the Colorado Attorney General’s Office] represents
  the statewide elected officials as well as the Judicial Department
  . . . [and] primarily handles litigation and appeals[.]”); Barber v.
  Ritter, 196 P.3d 238, 241 (Colo. 2008) (deciding a case where
  attorneys in the Public Officials Unit represented the Colorado
  Governor and State Treasurer); Coffman v. Colo. Common Cause,

                                    15
                            III.   Conclusion

¶ 28   The district court’s order is reversed, and the case is

  remanded with directions to omit T.T.’s name from the Eclipse

  system and lists generated from the Eclipse system’s data by use of

  T.T.’s initials or any other method omitting identifying information

  that the district court chooses to employ consistent with this

  opinion.

       JUDGE RICHMAN concurs.

       JUDGE BERNARD dissents.




  102 P.3d 999, 1000 (Colo. 2004) (deciding a case where attorneys in
  the Public Officials Unit represented the Colorado State Treasurer);
  see also Knop v. Johnson, 977 F.2d 996, 1011 (6th Cir. 1992) (“[I]t
  is ‘impermissible for a trial judge to deliberately set about gathering
  facts outside the record.’”) (citation omitted); City of Manassa
  v. Ruff, 235 P.3d 1051, 1056 (Colo. 2010) (“The due process
  requirement of neutrality in adjudicative proceedings entitles a
  person to an impartial and disinterested decision-maker.”).

                                    16
       JUDGE BERNARD, dissenting.

¶ 29    T.T. might have a point. Section 27-65-107(7), C.R.S. 2017,

  promised him that, after he had been released from short-term

  treatment, the court’s clerk would “forthwith seal the record in the

  case and omit [his] name . . . from the index of cases in such court.”

  But that promise was apparently broken because a court clerk

  apparently gave him access to his file, which should have been

  sealed.

¶ 30   I purposefully used the word “apparently” twice in the previous

  sentence because, after reviewing the record, I am left with more

  questions than answers. What is an index of cases? Is the Eclipse

  computer system such an index? If so, what does the phrase “omit

  [his] name” from such an index mean? What does it take, in the

  Information Age, to satisfy the statutory requirement that a clerk

  omit someone’s name from the computerized index? If Eclipse is

  not an index of cases, what is it? Can we tell that, in T.T.’s case,

  the clerk did not omit his name from the index? And why did a

  court employee give T.T. access to his file?

¶ 31   I hope that I can answer some of these questions — I cannot

  answer all of them — and I will try to do so below. But the answers


                                    17
  that I can find, when combined with the mysteries that remain,

  convince me that I must respectfully dissent from the majority’s

  decisions (1) to reverse the trial court’s order; and (2) to remand the

  case with directions that the trial court “omit T.T.’s name from the

  Eclipse system and lists generated from the Eclipse system’s data

  by use of T.T.’s initials or any other method omitting identifying

  information that the [trial] court chooses to employ consistent with

  this opinion.” Supra ¶ 26.

¶ 32   I begin my analysis by addressing the question of what an

  index of cases is.

¶ 33   Section 13-1-101, C.R.S. 2017, requires clerks of court to keep

  “suitable books for indexing the records of their said offices, one to

  be known as the direct index and one as the inverse index.” Section

  13-1-102, C.R.S. 2017, describes the information that clerks must

  include in them, including “the title of each cause . . . and the case

  number references to the various orders, rulings, judgments,

  papers, and other proceedings of the court in such cause or

  matter.” These two statutes have a lot of dust on them because

  they were enacted in 1889, and appellate courts have not cited

  them much since.


                                    18
¶ 34   But section 13-1-119, C.R.S. 2017, which has been around

  since 1887, was amended in a way that has helped me decide what

  sections 13-1-101 and -102 mean. Section 13-1-119 states today

  that “[t]he judgment record and register of actions shall be open at

  all times during office hours for the inspection of the public without

  charge,” and the court clerk is required “to arrange the several

  records kept by him in such manner as to facilitate their

  inspection.” (Emphasis added.) But this section assumed its

  present form when it was amended in 1979. It previously read that

  “[t]he judgment docket shall be open at all times during office hours

  for the inspection of the public without charge,” and the court clerk

  was required “to arrange the several dockets and books of record . . .

  in such manner as to facilitate their inspection.” Ch. 125, sec. 3,

  § 13-1-119, 1979 Colo. Sess. Laws 596 (emphasis added).

¶ 35   I submit that the reference to “books of record” in the original

  version of section 13-1-119 was to the “books” described in section

  13-1-101. And the purpose of these books — which consisted of

  the direct index and the inverse index — was, as the original

  version of section 13-1-119 pointed out, to facilitate the public’s

  inspection.


                                    19
¶ 36   This supposition is supported by Office of State Court

  Administrator v. Background Info. Servs., Inc., 994 P.2d 420 (Colo.

  1999). In that case, the supreme court stated that the General

  Assembly has made a “general pronouncement[]” that “courts of

  record shall maintain a registry of actions and a judgment record,

  and shall provide that they be open to the public for inspection.”

  Id. at 428. In support of this statement, the court cited sections 13-

  1-101, -102, and -119.

¶ 37   I would therefore conclude that the index of cases mentioned

  in section 27-65-107(7) consists of the direct index and the inverse

  index described in section 13-1-101. So, when section 27-65-

  107(7) required the clerk to omit T.T.’s name from the index of

  cases, it meant that his name should be removed from an index of

  cases that was open for public inspection.

¶ 38   Indeed, reading sections 13-1-101, -102, and -119 together

  with Background Info. Servs., it is clear to me that such books or

  paper indices were designed to be open for public inspection. (This

  is not a unique concept. One useful analog is the grantee-grantor

  indices, kept by the county clerk and recorder, that the public uses




                                   20
  when it researches real estate transactions. See § 30-10-408,

  C.R.S. 2017.)

¶ 39   Next, what does omitting a name from an index of cases mean

  when the name consists of electrons in a computer system instead

  of ink or type on a page? The record in this case does not convince

  me that the Eclipse system qualifies as an index of cases under

  section 13-1-101 and section 27-65-107(7). It could be an index of

  cases. Section 13-1-102 now states that an index may refer to

  “computer record[s].” And section 13-1-119 states that such

  records may “be presented on . . . computer terminal[s].”

¶ 40   But, as I concluded in the previous paragraph, this would

  mean that the Eclipse system, at least in part, facilitates the

  public’s inspection of certain information. And the record does not

  tell us whether, in addition to court employees, the public has

  access to the Eclipse system. I would doubt that the public has

  access because the record indicates that the system also contains

  confidential information. See, e.g., § 13-1-119.5(2), C.R.S. 2017

  (“The supreme court may adopt rules regarding access to the name

  index and register of actions, including rules identifying confidential

  information maintained in the system and state requirements for


                                    21
  using the confidential information.”). It is the presence of this

  confidential information on the system that leads to my surmise

  that the Eclipse system is not an index of cases and that the public

  should not be able to access it to look at confidential information.

¶ 41   There are rules governing access to confidential information.

  According to section 4.60 of Chief Justice Directive 05-01, Public

  Access to Court Records (amended Oct. 18, 2016), the public

  cannot obtain access to mental health cases. According to section

  3.07 of Chief Justice Directive 05-01, section 3.07, once the clerk

  sealed T.T.’s case under section 27-65-107(7), it should have only

  been accessible to “judges, court staff, and other authorized . . .

  staff,” unless a court issued an order granting a person access to it.

  Section 3.07 adds that “[j]udges and court staff should respond to

  requests for a statutorily-sealed court record by stating that no

  such court record exists.” According to the record, although sealed

  cases remain in the database, there is a clear designation on the

  computer screen that those cases are sealed, which means that a

  court employee, let alone a member of the public, cannot view them.

¶ 42   So it would seem that T.T.’s request of a court employee about

  his case should have been met with the statement that “no such


                                    22
  court record exists.” It was not — indeed, it seems that he obtained

  access to a file that should have been sealed — and, as I have

  recognized above, that means T.T. may have a point about the court

  not following section 27-65-107(7).

¶ 43   But, based on what little we know, even if I were to assume

  that the Eclipse system is or contains an “index of cases” for the

  purposes of section 27-65-107(7), that index is already

  appropriately cloaked to ensure that the public cannot gain access

  to T.T.’s case or to the fact that his case was filed. So I would

  conclude that T.T.’s name does not have to be removed from

  confidential information in a database that is supposed to be

  available only to judges and court staff, not to the public.

¶ 44   The record, although unclear, strongly suggests that the

  Eclipse system was not the source of T.T.’s complaint. Rather, the

  employee who provided him the confidential information apparently

  was the source. (I again use the word “apparently” because the

  record does not tell me much about how T.T. received the file. Did

  he ask to see it before or after the court had sealed it? Did the

  employee let him look at it because it was the file in his case? Did

  he ask to see the index of cases?) I must therefore respectfully


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  disagree with the majority’s decision to remand the case to the trial

  court so that it can alter the data in the Eclipse system because

  that remedy does not seem to address the reason why T.T. appears

  to have a complaint.

¶ 45   And the remand may be an empty act. The trial court quoted

  a court employee as saying that court employees could not “delete

  names [or] . . . [case] numbers” because they were “physically

  unable to do it.” (I interpret the words “physically unable” to mean

  that the computer system would not let court employees delete

  such information. The record suggests that such authority rests

  with the Office of the State Court Administrator.)

¶ 46   I recognize the importance of T.T.’s privacy interest in having

  his record sealed and in omitting his name from any publicly

  accessible databases. But I do not think that eliminating

  information from a confidential database would serve that interest.

  In other words, I respectfully submit that, although the remedy that

  the majority has chosen may have been spot on in an era of books

  and paper records, it is not well suited to our computerized world.




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