Contrary to what many New York guardianship attorneys believe, guardianship case files are presumed open under state law, a Nassau County judge ruled.
Ruling in a case involving Amelia Gould, a property owner and art collector worth at least tens of millions of dollars who was incapacitated, acting Nassau County Judge Gary Knobel said a party who is not related to Gould did not show good cause for sealing the case records.
There are allegations in the case of “financial exploitation” and “Svengali-like manipulation” over Gould, Knobel said.
While he noted the allegations in In the Matter of the Appointment of Denise B. Caminite and Stephen W. Schlissel are “merely” allegations and have not been discussed in a hearing, he said sealing the record would have the effect of “burying secrets.”
Knobel’s ruling comes after a series of stories by Long Island-based newspaper Newsday revealed Long Island judges had sealed records for at least 200 cases over a 10-year period by using boilerplate phrases in their orders rather than tailoring them to the facts of the case.
Knobel signed his ruling on Sept. 5. Gould died on Sept. 6, said Saltzman Chetkof & Rosenberg partner Michael Chetkof, Gould’s attorney.
Chetkof said that, for guardianship practitioners, New York law regarding the sealing of records from guardianship cases is complicated by the Health Insurance Portability and Accountability Act of 1996, and the fact that matrimonial cases are sealed.
To reach his decision, Knobel had to balance privacy concerns for an incapacitated person and the need for transparency in the case, Chetkof said.
“It’s a hard balance and I think he tried to explain that in his decision,” Chetkof said.
Rocco Avallone of Avallone & Bellistri represented Denise Caminite, who is not related to Gould and moved to seal the records in the case. He did not respond to a message requesting comment.
Boeggeman, George & Corde partner Richard Corde represents Gould’s surviving relatives.
In New York, the disclosure of records in guardianship cases is governed by Mental Hygiene Law §81.14, but jurisprudence regarding the statute are relatively uncharted waters for New York courts.
There have been no appellate rulings in New York on whether guardianship records should be sealed, Knobel said, and only a few published trial court decisions on whether good cause has been shown to seal records.
Despite his ruling, Knobel called on the state Legislature to re-evaluate Mental Hygiene Law §81.14, which was enacted in 1993 to take into account the impact of the Health Insurance Portability and Accountability Act on guardianship proceedings as well as the relative ease of committing identity theft.
Knobel said the Legislature should also consider the patchwork of policies among the states with regard to public access to guardianship proceedings and records.
As of 2016, most states including New York have a presumption of openness for records related to guardianship proceedings, Knobel said, citing a recent report by the American Bar Association Commission on Law and Aging.
Nine states seal significant portions of the documents in guardianship cases, including the petition. Another 13 states impose a total blackout on documents and hearings, and public access is granted only on a showing of good cause.
States in the latter category include New Jersey, Connecticut, Ohio, Kentucky, Oklahoma and New Hampshire.
Additionally, New York and 42 other states have adopted the Uniform Guardianship and Protective Proceedings Act, which only requires reports and professional evaluations to be sealed, but those may be disclosed to parties and their attorneys upon a showing of good cause.