The New Jersey State Bar Association endorsed proposed amendments to Rule 1:38 regarding public access to court and administrative records in a letter to the state Administrative Office of the Courts last week. The proposed amended rule would exclude medical and related records from public access.
“We believe that medical, psychiatric, psychological and alcohol and drug dependence records, reports and evaluations are personal, sensitive documents that should be kept confidential and shielded from public access as proposed, unless a court orders otherwise,” said NJSBA President Jeralyn L. Lawrence. “We note that this is already the case in family law matters related to child support, child custody and parenting time determinations, and the Association believes it is appropriate to provide the same exclusion from public access in other matters as well.”
The amendments would remove the good cause provision to releasing confidential information and replace it with a requirement to obtain a court order. Additionally, the records to be kept confidential continue to include those required to be kept confidential by statute, rule, or prior case law consistent with R. 1:38-3, as well as a new group of documents - medical, psychiatric, psychological, and alcohol and drug dependency records, reports and evaluations. Excluded from confidentiality are statements required for medical billing that do not include descriptions of medical diagnoses, conditions or services.
A similar proposal was made in October 2019 based on recommendations of the Supreme Court Advisory Committee on Public Access to Court Records, which considered whether the presumption of public access in R. 1:38 should be revisited considering technological advances. A 2007 Report of the Supreme Court Special Committee on Public Access to Court Records, also known as the Albin Report, determined that medical documents and reports admitted into evidence or attached to a motion or pleading submitted to the court generally should be publicly accessible, except for certain family division records.
The advisory committee noted that since certain records were already excluded from public access in certain family matters, given that they may be filed in all case types, the presumptive exclusion of such records should be broadened.
The comment period concluded on June 20 and the NJSBA continues to monitor the status and implementation.
This is a status report provided by the New Jersey State Bar Association on recently passed and pending legislation, regulations, gubernatorial nominations and/or appointments of interest to lawyers, as well as the involvement of the NJSBA as amicus in appellate court matters. To learn more, visit njsba.com.