International news agency Reuters asked the Oklahoma Supreme Court on Tuesday to order a trial judge to "immediately unseal the trial transcripts and all judicial records" in Harold Hamm's divorce trial. Hamm, one of America's wealthiest men, is chairman and majority shareholder of Continental Resources Inc., a publicly traded oil company.

His divorce proceedings were conducted in near-complete secrecy for nearly 10 weeks. They ended Thursday -- a day after Reuters had asked an Oklahoma County judge for an expedited hearing on its motions to intervene in the case and to make the courtroom and sealed trial transcripts available to the public.

Special Judge Howard Haralson ignored that request, Reuters' attorneys told the state justices on Tuesday.

Reuters asked the state Supreme Court to assume original jurisdiction to determine if Haralson "has exceeded his judicial authority by cloaking a public civil action in near-total secrecy."

"The district judge has issued orders denying public access to trial transcripts and judicial records in a divorce proceeding that could change the shareholding structure of one of the most important publicly-traded companies in the U.S. oil industry," Reuters' attorneys contended Tuesday.

(See Reuters America v. Haralson, No. MA - 113296 (Okla. Co. Oct. 14, 2014))

Haralson closed the courtroom to the public on all but parts of three days and withheld from the public "nearly every substantive document filed in this proceeding," they wrote.

Among the sealed court records are a joint motion to withdraw certain testimony from the record and Haralson's order on that motion.

On Tuesday, Reuters' attorneys -- Mike Minnis and Doug Dodd -- reiterated what they had told Haralson: The public has a compelling interest in Hamm and Continental Resources.

They described the company as one of the most important in the U.S. oil industry and the 68-year-old Hamm, whose wealth is estimated at $20 billion, as “among the most important U.S. industrialists and public business figures of his generation.”

More than 260 filings in the case are sealed, they noted.

Reuters filed an open records request in late August for the court file, “including records that address the Court’s rationale for sealing the courtroom and trial transcripts.” But Haralson conceded that he never read the request, the news agency said.

Don't Close Court Records 'Unless Absolutely Necessary'

In a 2013 case involving the sealed divorce file of an Oklahoma City councilman running for mayor, the state Supreme Court reiterated that court records are public under the Open Records Act unless specifically exempted by statute. (Shadid v. Hammond, 2013 OK 103 (Taylor, J., concurring))

"There are no provisions in the Oklahoma Open Records Act that allow parties to simply agree to seal a public record and submit a summary agreed order to the court," wrote Justice Steven W. Taylor. "Sealing a public record should be a very rare event that occurs in only the most compelling of circumstances." (Id. ¶2)

Taylor noted that trial judges must "make a specific finding that sealing the public record is 'necessary in the interests of justice to remove the material from the public record.'" (Id. ¶3, quoting Okla. Stat. tit. 51, § 24A.29(A)(1))

"That is a very high standard for good reason and is required in every case," Taylor wrote. (Id.)

Trial judges "should rarely take the drastic measure of sealing public records," he emphasized. (Id. ¶4)

"My future guidance to the District Courts is to not block public access to court records unless it is absolutely 'necessary in the interests of justice,'" Taylor wrote. "Public records should remain public except in the most compelling of circumstances."

After a subsequent hearing, Oklahoma County Special Judge Lisa Hammond agreed to release that divorce file to the public.

Compelling Privacy Interest Must Outweigh Public Interest

If a statutory exemption doesn't apply, a new provision of the Open Records Act will allow judges to seal court records "only if a compelling privacy interest exists which outweighs the public's interest in the record." (Okla. Stat. tit. 51, § 24A.30)

The provision, which takes effect Nov. 1, requires a judge sealing a court record to issue a public order that must:

1. Make findings of fact which identify the facts which the court relied upon in entering its order;

2. Make conclusions of law specific enough so that the public is aware of the legal basis for the sealing of the record;

3. Utilize the least restrictive means for achieving confidentiality; and

4. Be narrowly tailored so that only the portions of the record subject to confidentiality are sealed and the remainder of the record is kept open.

 

Joey Senat, Ph.D. Associate Professor OSU School of Media & Strategic Communications

The opinions expressed in this blog are those of the commentators and do not necessarily represent the position of FOI Oklahoma Inc., its staff, or its board of directors. Differing interpretations of open government law and policy are welcome.