Senate Judiciary weighs judge-ordered access, exigent exceptions for sealed records; committee leans toward judge review with reasonable-suspicion standard

At a Senate Judiciary committee hearing, witnesses and committee members discussed procedures for law enforcement to access sealed criminal records, with testimony from Tom Zuni, chief superior judge, and law enforcement officials on how to balance officer safety, transparency and individual privacy.

The discussion centered on whether access to sealed records should require a court order presented to a judge (similar to an inquest) or allow a quicker after‑hours procedure in exigent circumstances, and what legal standard judges should apply. Judge Tom Zuni recommended establishing clear statutory or procedural language spelling out the process and asked the committee to define the standard judges would use when considering access requests.

Why it matters: the committee is considering rules that would affect when law enforcement can check sealed records during investigations (including roadside stops and searches) and how records for offenses that have been decriminalized could be handled without individual petitions. Any change would affect law enforcement practice, judicial workload and privacy rights for people with sealed records.

Most important facts: Zuni recommended clarifying that certain agency materials (he cited the Department of Children and Families and Adult Protective Services) are not "case records" under the referenced statutory definition and suggested replacing the phrase "produced in response to a lawful discovery order" with "produced in response to a court order" to cover non‑discovery uses. He emphasized the need for a written record of judicial reviews of access requests to preserve transparency and later reviewability.

On standards for review, the committee debated three approaches: (1) apply the low inquest standard (statutory language allowing a judge to "institute and conduct an inquest upon any criminal matter under investigation"), (2) require reasonable suspicion, or (3) require probable cause. Zuni described the inquest standard as "below all of" the formal standards such as preponderance or probable cause and noted that inquests historically can be used to obtain documentary evidence, including records via subpoena. He also said a court does have discretionary ability to deny inquests when the facts do not support a criminal investigation.

Multiple committee members and witnesses urged a middle path. Several speakers said reasonable suspicion is a familiar, statutory standard that sits below probable cause but above the very low inquest threshold and could serve as a workable rule for officers and judges. Committee members also raised officer safety and exigent‑circumstance examples in which immediate access might be necessary (for instance, a roadside stop with a visible firearm and no cell reception), and discussed whether an exception for exigent circumstances should be built into any statutory scheme while preserving a paper trail.

Sheriff Anderson—who described one use of sealed-record access in his career—was cited during the discussion as an example of rare, operational use. Committee members and Zuni agreed that such requests are not likely to be routine but that a clear, trainable standard is needed if access is authorized.

On petitionless sealing (automatic expungement for offenses that are no longer crimes), Zuni referenced his December report to the legislature about petitionless sealing and the committee discussed the marijuana Act 167 experience, which created a large, retrospective expungement load (Zuni described the marijuana workload as "over 10,000" cases). Zuni said a similar analysis would be needed to estimate workload and resource impacts for other categories of offenses before moving to a broad petitionless model.

The committee also heard that it is not proposing changes to deferred sentences: "we're actually not planning to change anything regarding deferred sentences and planning to just keep them as they are," a committee speaker said, meaning people who complete deferred sentences will continue to receive expungement under the current scheme.

Direction and next steps: committee members generally favored requiring a judge's order for access (filed by the state's attorney) with a clear statutory standard—many supported reasonable suspicion for nonexigent situations—and an explicit, limited exigent‑circumstances pathway that preserves documentation. Judge Zuni said he would consider statutory language and speak with stakeholders about a feasible process and possible updates to inquest statutes to balance expedition, judicial reviewability and recordkeeping.

No formal vote was taken and no bill language was adopted at the hearing; the committee requested additional drafting and stakeholder input before returning to the subject.