Fourth Court Update

Confidentiality in a Court of Record

By Chief Justice Rebeca C. Martinez and Jack Salmon

The Fourth Court of Appeals must hand down written opinions that are cogent and meaningful, not only to the litigants, but also to members of the judiciary, the bar, and the public. See R.V.K. v. L.L.K., 103 S.W.3d 612, 614 (Tex. App.—San Antonio 2003, no pet.)(en banc). We may not issue sealed opinions. See Tex. Gov’t Code Ann. § 552.022(a)(12); Tex. R. App. P. 47.3; see also Tex. R. App. P. 76a.1. Our task is complicated, however, when confidential matters are in dispute or when sensitive matters, such as custody of children, are involved. Recently, we have seen an increase in requests to keep information confidential.

To write opinions, we review the clerk’s and reporter’s records and the parties’ briefs. Typically, records are sealed by the trial court and remain sealed on appeal. Texas Rule of Civil Procedure 76a sets out detailed rules regarding sealing trial court records, and a party wishing to challenge a sealing order may appeal the order. See Tex. R. Civ. P. 76a.8. When a record on appeal potentially should have been sealed but was not, we have some discretion to return the matter to the trial court. See Graven v. State, 630 S.W.3d 99 (Tex. App.—Waco, 2020, no pet.) (per curiam).

With briefs, Texas Rule of Appellate Procedure 9.10 specifically allows us to order that a document, such as a brief, be filed under seal in a criminal appeal. See Tex. R. App. P. 9.10(g). However, with civil appeals, no rule of appellate procedure, local rule, or internal operating procedure specifically allows a party to file a sealed brief. Instead, privacy protections are afforded by the requirement in Texas Rule of Appellate Procedure 9.9 that the parties redact sensitive data in their publicly available briefs. See Tex. R. App. P. 9.9(c). Nevertheless, we and our sister courts of appeals have allowed parties to file sealed briefs, but there is little published precedent on the matter. See In re Cook, 629 S.W.3d 591, 595 n.2 (Tex. App.—Dallas 2021, no pet.); Navasota Res., L.P. v. First Source Tex., Inc., 206 S.W.3d 791, 793 (Tex. App.—Waco 2006, no pet.) (Gray, C.J., dissenting).

When our opinions address sensitive matters, we face an “unusual problem.” Kartsotis v. Bloch, 503 S.W.3d 506, 510 (Tex. App.—Dallas 2016, pet. denied). We must “strike a fair balance” between keeping sensitive information confidential and fulfilling our responsibilities as a court of record. See R.V.K., 103 S.W.3d at 615. This task can be difficult to accomplish because sensitive information, which is sealed or redacted, may go to “the very heart of the controversy.” Id. at 614. To strike this balance, we have referenced and excerpted sealed portions of the record but kept identities hidden. See id. at 615. We also have adopted aliases to refer to minors and their adult family members if necessary to protect the minors’ identities. See Tex. R. App. P. 9.8. Other courts have stuck the balance by keeping references to sensitive information “deliberately vague” or “generalized.” TMX Fin. Holdings, Inc. v. Wellshire Fin. Services, LLC, 515 S.W.3d 1, 4 n.1 (Tex. App.—Houston [1st Dist.] 2016, pet. dism’d); Mi Gwang Contact Lens Co., Ltd. v. Chapa, No. 13-13-00306CV, 2015 WL 3637846, at *7 (Tex. App.—Corpus Christi–Edinburg June 11, 2015, no pet.).

When confidential matters are present, practitioners should be mindful of both the rules that apply to them concerning sealing and redacting sensitive information and our obligation to issue opinions open to the public. When the reason for confidentiality is not obvious, the parties should advise us, so that we can make every effort to preserve confidentiality while fulfilling our obligations as a court of record.

Chief Justice Rebeca C. Martinez has served on the Fourth Court of Appeals since January 2013, and as Chief Justice since January 2021. Chief Justice Martinez previously served for United States Magistrate Judge Eduardo E. de Ases for the Western District of Texas and for Justice Federico Hinojosa on the Thirteenth Court of Appeals, and she practiced trial law for over twenty years.

Jack Salmon has served as Staff Attorney to Chief Justice Martinez since April 2019, and as Chief Staff Attorney since July 2021. Previously, he served as Law Clerk to Judge Xavier Rodriguez and Judge Orlando L. Garcia for the Western District of Texas and practiced civil-rights law.