Should probate court records be secret?

Frank S. Ganz (J.D. 2009, Quinnipiac University School of Law) has recently published his note entitled Privacy in Probate Court: Why Connecticut Should Seal the Record, 22 Quinnipiac Prob. L.J. 136 (2009).

Here is the conclusion of his article:

The matters handled in Connecticut probate courts involve privacy concerns that far outweigh the minimal interest the public has in overseeing the probate system. The public’s right to inspect court records has been substantially unhindered throughout history with very few exceptions. However, the Supreme Court has set out a balancing test to determine when privacy can overcome this public right. The two major factors of this test are whether the type of record in question has traditionally been open to the public and whether the public’s involvement is significantly important to the process.

Though probate records and proceedings have traditionally been open to the public, public involvement is not significantly important to the probate process itself. It is difficult to find a significantly important use for probate records outside the context of the specific dispute in which they are filed. Furthermore, probate records do not have the precedential effect of other court records and opinions, leaving the public interest considerations as minimal at best. Probate matters are inherently personal and the public nature of probate records discourages individuals from using the probate system. Therefore, the private and government interests related to the probate system are far more significant than the barely present public interest.

Though the focus of this article is to present the idea that privacy should be allowed in the probate system, it has also presented a model regulatory scheme based on tools used in other jurisdictions and areas of law. For further development in this area, the possibility of reporting probate opinions should be explored, along with the effect reported opinions would have on the public interest in the probate system. While it may seem at first glance that privacy and public access are inherently at odds with one another, both public access and individual privacy can be protected by a proper regulatory scheme, as proposed.