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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).

Florida

The most common interests cited by proponents of closure in criminal matters are fair trial rights and privacy interests. E.g., Post-Newsweek Stations, Fla. Inc. v. Doe, 612 So. 2d 549 (Fla. 1992) (involving asserted privacy interest of non-parties in criminal records); Florida Freedom Newspapers, Inc. v. McCrary, 520 So. 2d 32, 36 (Fla. 1988) (fair trial rights objection to access to criminal court records); Miami Herald Publ’g Co. v. Lewis, 426 So. 2d 1, 6 (Fla. 1983) (fair trial rights objection to access to criminal court proceeding).

The Florida Supreme Court in Barron also enunciated a list of potential interests that could justify closure of civil proceedings and records. Closure is only permitted when necessary: “(a) to comply with established public policy set forth in the constitution, statutes, or case law; (b) to protect trade secrets; (c) to protect a compelling government interest [e.g., national security; confidential informants]; (d) to obtain evidence to properly determine legal issues in a case; (e) to avoid substantial injury to innocent third parties [e.g., to protect young witnesses from offensive testimony; to protect children in a divorce]; or (f) to avoid substantial injury to a party by disclosure of matter protected by a common law or privacy right not generally inherent in the specific type of civil proceeding sought to be closed.” Barron, 531 So. 2d at 118 (involving asserted privacy interest of party in medical and financial records).