B. Procedure for requesting access in criminal cases

Overview

The Supreme Court has declined to specify the proper method for requesting access. Practices vary, though “courts have widely recognized that the correct procedure for a non-party to challenge a protective order is through intervention for that purpose.” United Nuclear Corp. v. Cranford Ins. Co., 905 F.2d 1424, 1427 (10th Cir. 1990) (citing Public Citizen v. Liggett Group, Inc., 858 F.2d 775, 783 (1st Cir. 1988)); see also In re Associated Press, 162 F.3d 503, 507 (7th Cir. 1998) (intervention is the “most appropriate procedural mechanism” for challenging closure orders); Hertz v. Times-World Corp., 528 S.E. 2d 458, 463 (Va. 2000) (mandamus was erroneously granted because intervention provided adequate remedy at law). A minority of courts prefers mandamus – and some have questioned whether the media may properly intervene to request access, especially in criminal trials, with the First Circuit relying on the All Writs Act “because the right of a non-party to intervene in a criminal proceeding is doubtful.” In re Globe Newspaper Co., 920 F.2d 88, 90 (1st Cir. 1990) (citation omitted).

Many courts, by rule or practice, allow a less formal challenge in the form of an oral request for access or a letter to the judge overseeing the proceedings at issue. In some courts, the press liaison or public information officer may be able to assist the press in requesting access to closed proceedings or records.

5th Cir.

In the 5th Circuit, the media can challenge a closure order either by appeal or by writ of mandamus. U.S. v. Chagra, 701 F.2d 354, 361 (5th Cir. 1983).