Conference committee removes petition requirement, tightens court review for sealed records in S 12

A Senate Judiciary conference committee working on S 12 met May 20 to reconcile House and Senate language on sealed records and expungement, and agreed to remove a proposed petition-for-access step while bolstering an exceptions provision that would require court permission before sealed documents are used in public filings or open court.

The change matters because it alters how criminal justice agencies, defense counsel and prosecutors may view and disclose records that would otherwise be sealed under expanded expungement rules. Committee members said the revisions aim to balance broader sealing of records with protections against misuse that could affect employment, housing or other opportunities.

Committee members described the most significant Senate-to-House change as dropping the petition requirement for initial access. "The main thing that on the senate side we're most concerned about is the initial review piece for accessing, using, and disclosing sealed records," a committee member said during the meeting. The same committee member said, "we took that petition out" after testimony from judges and other witnesses raised concerns that a petition process would overwhelm courts.

Under the language discussed, sealed records in a prosecutor's or defense file may be examined by counsel for use in a criminal defense or prosecution, but disclosures outside core criminal-justice uses—such as providing a sealed record in a deposition, to an expert, or in a public filing—would trigger additional steps. Committee members said internal review by defense counsel or prosecutors would not require court petitions, but further disclosure would require notice or a court order. One participant warned that unauthorized disclosure could carry a monetary penalty and described a "thousand dollar" sanction in the draft language.

Members discussed discovery obligations, noting prosecutors must still provide exculpatory material under Brady obligations. The committee clarified that discovery and internal review differ from disclosure: internal use by counsel was treated as permissible without court petition, while public filings or open-court uses would require judicial permission and the court would assess relevance and prejudice under ordinary evidentiary standards.

The committee also discussed whether sealed records should be usable in related civil litigation. The handout language under discussion said an entity or attorney "may continue to use a record for any litigation arising out of the same incident or occurrence, including use in the record in reasonable anticipation of litigation." Committee members interpreted that to allow use in civil matters that are tied to the same underlying incident, while unrelated civil uses would not be covered by the proposed exceptions.

Deferred sentences emerged as a separate, contested issue. Committee members described testimony expressing concern that certain changes could alter incentives tied to deferred sentences. One committee member said the panel's "preference would be keeping deferreds as is," and other members said the point requires further discussion; no final change on deferred sentences was adopted during the session.

The committee debated a proposed statewide access policy for criminal-justice agencies that would set uniform rules for who may access sealed records and under what conditions. Members noted such a policy could take roughly a year to implement and could create an interim surge of expungement requests; several said the current bill's tightened court-review language may address core access concerns without adding a yearlong delay. The panel agreed to revisit the statewide-policy issue at a follow-up meeting.

The committee planned a reconvening on the item the following day at 1:15 p.m. and agreed to circulate the redlined handout to members and staff for further review before finalizing language.

Ending: The committee left the conference process with the petition requirement removed and subsection modifications strengthened but deferred final votes on deferred-sentence treatment and adoption of a statewide access policy until the next meeting.