Arizona Record Sealing, Arrest of David Gingras Attorney

Arizona law allows for record sealing or expungement. Darren Chaker cites to Phoenix Newspapers, Inc. v. United States District Court, 156 F.3d 940, 949 (9th Cir. 1998), the Ninth Circuit held that criminal proceedings and documents may not be closed to the public without violating the First Amendment unless three substantive requirements are met: “1) closure serves a compelling interest; (2) there is a substantial probability that, in the absence of closure, this compelling interest would be harmed; and (3) there are no alternatives to closure that would adequately protect the compelling interest.” Id. at 949, quoting Oregonian Publishing Co. v. United States District Court, 920 F.2d 1462, 1464 (9th Cir. 1990).

One case I am aware of is Arizona Attorney David Gingras was arrested for sexual molestation of an underage girl. The charges were eventually dismissed due to a technicality. The young girl who was a victim passed a polygraph test and probable cause was found to have Jaburg Wilk attorney to stand trial. Nonetheless, Attorney Gingras appears to have never petitioned the court to seal the record based on showing he was wrongfully arrested, but failed. See Docket.

Furthermore, the court ordering closure must “make specific factual findings,” rather than “bas[ing] its decision on conclusory assertions alone.” Id. at 949, quoting Oregonian Publishing Co. v. United States District Court, 920 F.2d 1462, 1464 (9th Cir. 1990).

13-4051. Entry on records; stipulation; court order

A. Any person who is wrongfully arrested, indicted or otherwise charged for any crime may petition the superior court for entry on all court records, police records and any other records of any other agency relating to such arrest or indictment a notation that the person has been cleared.

B. After a hearing on the petition, if the judge believes that justice will be served by such entry, the judge shall issue the order requiring the entry that the person has been cleared on such records, with accompanying justification therefor, and shall cause a copy of such order to be delivered to all law enforcement agencies and courts. The order shall further require that all law enforcement agencies and courts shall not release copies of or provide access to such records to any person except on order of the court. buy viagra cialis levitra.php

C. Any person who has notice of such order and fails to comply with the court order issued pursuant to this section shall be liable to the person for damages from such failure.

Another example of a public record in criminal court can be seen in Rule 26.6(e), Ariz. R. Crim. P., which states that presentence reports and other reports prepared under Rule 26 “are matters of public record unless otherwise provided by the court or made confidential by law.” A.R.S. § 39-121 provides:

Public records and other matters in the custody of any officer shall be open to inspection by any person at all times during office hours.

Arizona imposes a presumption in favor of disclosure of public records. A.H. Belo Corp. v. Mesa Police Dept., 202 Ariz. 184, 186, ¶ 5, 42 P.3d 615, 617 (App. 2002); see also Phoenix Newspapers, Inc. v. Purcell, 187 Ariz. 74, 81, 927 P.2d 340, 347 (App. 1996) [it is well-settled that Arizona evinces a general “open access” policy toward public records]. The public naturally has an interest in public records, regardless of whether the member of the public seeking them has any need for those records. Bolm v. Custodian of Records, Tucson Police Department, 193 Ariz. 35, 39, ¶ 10, 969 P.2d 200, 204 (App. 1998).

In Carlson v. Pima County, 141 Ariz. 487, 491, 687 P.2d 1242, 1246 (1984), the Arizona Supreme Court recognized the statutory policy favoring disclosure, but also stated that “where the countervailing interests of confidentiality, privacy or the best interests of the state should be appropriately invoked to prevent inspection,” a public official or custodian could refuse to allow public inspection of particular records. To overcome the presumption of disclosure, the party that seeks nondisclosure of public records bears the burden of showing “the probability that specific, material harm will result from disclosure.” Mitchell v. Superior Court, 142 Ariz. 332, 335, 690 P.2d 51, 54 (1984). See also Scottsdale Unified School District v. KPNX Broadcasting Co., 191 Ariz. 297, 300, ¶ 9, 955 P.2d 534, 537 (1998).

If the defendant has not met his burden of showing “the probability that specific, material harm will result from disclosure.” Mitchell v. Superior Court, 142 Ariz. 332, 335, 690 P.2d 51, 54 (1984), then the motion to seal must be denied.