Sealing the trial record

The U.S. Supreme Court recognized in its 1978 landmark case Nixon v. Warner Communications, Inc. a common-law right “to inspect and copy public records and documents, including judicial records and documents.” Nixon involved more than 20 hours of tape-recorded conversations held in former President Richard Nixon’s White House and Executive Office Building offices. They were broadcast to the press and public during Nixon's trial on obstruction of justice charges in connection with the Watergate investigation.

Although the trial court had furnished jurors, members of the news media and others present in the courtroom during the trial with copies of transcripts of the recordings, a group of television networks asked the judge for access to the audio tapes themselves. The judge denied the request, finding that release of the tapes would prejudice the convicted defendants’ appeal, and given the widespread reporting of information in the transcripts, the public’s right of access did not outweigh the need to safeguard the defendants’ rights on appeal. The District of Columbia federal appellate court disagreed, holding that the mere possibility of prejudice to defendants’ appeal rights did not overcome the public’s common-law right of access to the materials.

The Supreme Court reversed the appellate court, finding that this right to inspect and copy judicial records is not absolute, and the decision about whether to grant access to the documents is best left to the discretion of the trial court. In this case, the ability to obtain the recordings through another means -- the procedures established by a federal statute governing the public release of Nixon presidential materials -- tipped the scales in favor of the trial court’s denial of the release, the Supreme Court ruled.

Since Nixon, many lower courts have recognized a constitutional right of public access to civil and criminal court records as well. Whether the access right is anchored in the First Amendment or the common law is a significant distinction because it determines the standard a court must use when evaluating requests to seal documents or otherwise infringe the right of access.

Where the First Amendment protects the right of access to court documents, judges must, before restricting public access to a case, articulate specific, on-the-record findings demonstrating that sealing is necessary to serve a compelling government interest and that the sealing order is narrowly tailored to serve that interest.

Under the common law’s more relaxed standard, courts make sealing decisions by balancing the interests of the parties involved with those of the public and the press. In these cases, courts must begin their analysis with a strong presumption in favor of access. They then consider a variety of factors to determine whether the presumption of openness is overcome by certain interests of the parties. The factors relevant to this decision vary by jurisdiction. But they generally include evaluations such as whether disclosure of the material at issue would reveal trade secrets or other sensitive business information, reveal state secrets and threaten national security, threaten a criminal defendant's fair-trial rights or the safety of undercover witnesses or officers, or invade a person's privacy. These interests are balanced against the public interest in understanding the judicial process.

Despite this tradition of openness, reporters are often frustrated to find that documents filed in connection with cases they are covering are sealed. This secrecy is often due to state and federal laws and some court rules that specifically apply to certain kinds of judicial proceedings and records and govern when those proceedings and records may be shielded from public view. Moreover, courts routinely grant sealing requests, especially when the opposing party does not object to the request, without undertaking the proper analysis. In these cases, journalists and the public may move to intervene for access to the sealed materials.

And the problem is not limited to trial courts. A Summer 2011 study by The Reporters Committee for Freedom of the Press found that the number of cases involving court documents that include information filed under seal in the Supreme Court has increased dramatically in recent years. In 1993, for example, only six cases involved documents under seal, with the Court allowing sealing in only two of those cases. In comparison, the Court allowed sealed records in all 18 cases during the October 2008 term in which sealing was requested, and in 14 of 19 cases in the October 2009 term. In the October 2010 term, the Court granted requests to file records under seal in at least 24 of 28 cases.  

The Reporters Committee presented its findings to the Court in a letter that proposed a procedural rule providing that every document filed with the high Court, except those required to be sealed by statute or other rule, would be presumptively public, regardless of whether it was sealed by a lower court.   

The Court declined to adopt such a rule, citing a September 2011 policy by the policy-making body of the federal justice system that encourages federal judges to limit the number of cases they seal from public view.