Most state open records laws contain an exemption for juvenile records, protective custody and delinquency records.4 For most juvenile records, access is limited to the juvenile, his or her parents or guardians, or other parties directly involved in a legal matter. Some states, such as Tennessee and Colorado, allow for some disclosure depending on the age of the juvenile and the severity of the crime. Tennessee will permit access in cases where the juvenile is 14 years old or older and is charged with a serious crime. Colorado will open records if the juvenile is 12 years old or older if he or she is charged with a violent crime.
Relatively few court opinions exist regarding access to juvenile records because many state laws contain explicit exemptions for these types of records. However, Georgia and Virginia courts have advocated a balancing test in such circumstances, refusing to enforce a blanket prohibition on disclosure of juvenile records.
The Virginia Circuit Court, in an unpublished decision in In re Richmond Newspapers, Inc., found that an absolute rule barring access to juvenile records would be inappropriate. However, the court didn’t allow access to the records of a juvenile who was charged with murder. The court remanded the case and ordered the lower court to conduct a balancing test to weigh the interest of public disclosure against the interest in shielding juveniles from exposure and scrutiny from the press and public. The court held that society’s interest in “shielding juveniles from the same level of scrutiny which sometimes attaches to adults” is “just as compelling as society’s interest in gaining access to court records.”
In Florida Publishing Co. v. Morgan, the Supreme Court of Georgia found that while there cannot be an absolute closure, there can be a presumption of confidentiality in juvenile cases. The court held that the press and the public “must be given an opportunity to show that the state’s or juveniles’ interest in a closed hearing is not ‘overriding’ or ‘compelling.’”
As expressed in the Virginia case, states recognize a compelling state interest in protecting juveniles, as evidenced by the laws keeping these records confidential, even when they are accused of serious crimes. It is only in limited circumstances, generally involving teens accused of serious, violent crimes, where records and proceedings are open.
The Virginia decision, however, has not led to many changes in how things are done within the state. While a Virginia circuit court opinion is not particularly persuasive, Dick Hammerstrom, of The Free Lance-Star thinks the issue it greater than what has been announced in that particular case. Hammerstrom, who serves on the Virginia Coalition for Open Government, says that the norm in Virginia is to deny access to juvenile records and proceedings.
The judges make their own rules and they don’t follow In re Richmond Newspapers, he said. In fact, he says, judges will often deny reporters access to even cases where the offenders are adults if the crime is against a juvenile.
In Tennessee, the state legislature felt there was a need to have a more open juvenile system because of the very adult crimes that minors can commit, especially after a marked increase in juvenile crimes about 10 years ago, said Frank Gibson, executive director of the Tennessee Coalition for Open Government. With a desire to increase punishments for youth offenders came an increase in openness for the proceedings, but only for the most violent offenses.
The reason these records are secret is to protect the minor from being stigmatized by the press and to be better rehabilitated, Gibson said. “I’m not sure that a 14-year-old who pulls a gun and kills two people will be stigmatized by having his name published in the paper.”
The public has a right to know this information because juvenile crime affects the public just as any crime in the community does, Gibson said. People have a right to know what is going on in their community and to know if they are safe. Keeping juvenile records secret helps few people in reality, whereas secrecy can hurt. And like in Virginia, Gibson said that judges will often ignore the law and keep the proceedings closed because few parties sue over the issue and even if there is a law suit, the result is often too late to make any difference.
“Secrecy is bad in any context,” Gibson said.