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IX. Interests often cited in opposing a presumption of access

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).

D.C. Cir.

The public right of access, however, is not absolute. United States v. Hubbard, 650 F.2d 293, 315 (D.C. Cir. 1980) (listing “time-honored exceptions”) (quoting Nixon, 435 U.S. at 598); Tavoulareas v. Washington Post, 724 F.2d 1010(D.C. Cir. 1984)(corporation's constitutionally protected privacy interest in nondisclosure of its confidential commercial information); Schaffer v. Kissinger, 505 F.2d 389 (D.C. Cir. 1974)(national security secrets); U.S. v. Poindexter, 732 F.Supp. 165 (D.D.C. 1990)(national security); In re Sealed Documents, 15 Med.L.Rptr. 1983 (D.D.C. 1988)(compelling interest in successful completion of ongoing investigation into fraud in defense procurement process); Bigelow v. District of Columbia, 122 F.R.D. 111 (D.D.C. 1988)(protecting confidential informant).

But see In re Application of NBC, 653 F.2d 609 (D.C. Cir. 1981)(no risk of disclosure in prejudicing a hypothetical second trial);In re Applicationof New York Times Co. for Access to Certain Sealed Court Records, 585 F.Supp.2d 83, 87 (D.D.C. 2008)(disclosure of materials ordered in part because they revealed information the public already knew which was neither highly intimate nor personal, and no possibility of prejudice because investigation was complete)