Overview
Even where a court finds a constitutional presumption of access to proceedings or records, that presumption can be rebutted “by an overriding interest based on findings that closure is essential to preserve higher values and is narrowly tailored to serve that interest.” Press-Enterprise Co. v. Superior Court (Press-Enterprise I), 464 U.S. 501, 510 (1984).
As one court noted, “[o]ther than a right to a fair trial, interests compelling enough to overcome the presumption of openness usually take the form of a privacy right. See Seattle Times Co. v. Rhinehart, 467 U.S. 20, 104 S.Ct. 2199, 81 L.Ed.2d 17 (1984) (protective orders for discovery materials); In Re Knoxville News-Sentinel Co., Inc., 723 F.2d 470 (6th Cir. 1983) (personal financial records of innocent third parties); Megapulse Inc. v. Lewis, 672 F.2d 959 (D.C. Cir. 1982) (trade secrets); Schaffer v. Kissinger, 505 F.2d 389 (D.C. Cir. 1974) (national security secrets); Park v. Detroit Free Press Co., 72 Mich. 560, 40 N.W. 731 (1888) (libelous statements); In Re Caswell, 18 R.I. 835, 29 A. 259 (1893) (details of a divorce).” State v. Cottman Transmission, 542 A.2d 859, 864 (Md. App. 1988).
5th Cir.
The right to a fair trial is the most common interest cited in opposing a presumption of access. See U.S. v. Edwards, 785 F.2d 1293, 1294 (5th Cir. 1997). The 5th Circuit has held that the presumption of openness can be overcome if there is an overriding interest based on court findings that closure is essential to preserve higher values, and so long as the closure order is narrowly tailored to serve that interest. U.S. v. Hitt, 473 F.3d 146, 154 (5th Cir. 2006).
Protection of a minor’s privacy interests and psychological rights may, in certain circumstances, override the presumption of openness. U.S. v. Hitt, 473 F.3d 146, 154 (5th Cir. 2006); see also U.S. v. Osborne, 68 F.3d 94, 98 (5th Cir. 1995).
The “inherent privateness” of religious beliefs can contribute to overcome the presumption of openness. Doe v. Stegall, 653 F.2d 180, 186 (5th Cir. 1981).
Protecting jurors from harassment and invasion of privacy may, in certain cases, overcome the presumption of openness. U.S. v. Brown, 250 F.3d 907, 921 (5th Cir. 2001).
Protection of a confidential government informant may, in certain circumstances, overcome the presumption of openness. U.S. v. De Los Santos, 810 F.2d 1326, 1333 (5th Cir. 1987).
