New York

Delinquency and dependency proceedings: The state Family Court Act presumably permits the general public to attend juvenile court proceedings in New York. Because the statute states that the general public may be excluded, the assumption is that the public and media are allowed to attend and that an affirmative act by the court is required to exclude the public. N.Y. Fam. Ct. Act § 741 (McKinney 2012). Implementing this statute, the Uniform Rules for the Family Court explicitly provide that the public, including the news media, has access to proceedings before the court. Closure is allowed only if the judge determines by supporting evidence that exclusion from a family court proceeding is warranted in that case because of factors designated in the rule. Among the factors governing the court’s exercise of its discretion are the nature of the proceeding, the privacy interests of the individuals involved, the need to protect litigants, namely children, from harm and the unavailability or inappropriateness of less restrictive alternatives to exclusion. N.Y. Fam. Ct. R. 205.4. In 1997, the same year these rules were revised to provide greater public access, the family court allowed two news reporters to sit inconspicuously in the rear of the room during a hearing on charges that Malcolm Shabazz set a fire resulting in the death of his grandmother Betty Shabazz, the widow of Malcolm X. Citing the value of openness and applying constitutional standards, the court found that the juvenile failed to demonstrate an overriding interest establishing that closure of the hearing was essential to preserve higher values. “The public, as represented by the press, has a right to know that the Court is meeting its responsibility toward the community,” the court said. Matter of Application for News Media Coverage in the Matter of M.S., 662 N.Y.S.2d 207, 209 (N.Y. Fam. Ct. 1997); see also Capital Newspapers Div. v. Moynihan, 519 N.E.2d 825, 830 (N.Y. 1988) (involving youthful offenders who could not overcome the presumption of openness of their sentencing proceedings); Matter of Chase, 446 N.Y.S.2d 1000, 1009 (N.Y. Fam. Ct. 1982) (involving juvenile who failed to overcome the presumption of openness of fact-finding trial in a delinquency proceeding). However, another family court denied the news media access to a fact-finding hearing to determine whether a 9-year-old committed acts that would have been criminal if committed by an adult. The court’s ruling was based on the extreme youth of the juvenile, his attorney’s objection to public access and the court’s inability, if it granted access, to shield the juvenile and his family from public identification in connection with any damaging or sensitive facts that may have been revealed at trial. Matter of Robert M., 439 N.Y.S.2d 986, 990 (N.Y. Fam. Ct. 1981).

This rule allowing closure in certain circumstances does not apply, however, to juveniles charged with felonies. N.Y. Crim. Proc. Law § 720.15. Interpreting this statute, the state’s highest appellate court held that sentencing proceedings for youthful offenders are presumptively open to the media and public and cannot be closed simply because juveniles are involved. Moynihan, 519 N.E.2d at 829.

Although child protective proceedings also are presumptively open, New York courts have noted a concern for the physical, mental and emotional well-being of children as a basis for distinguishing access issues in such dependency cases from those that arise in the context of delinquency proceedings. N.Y. Fam. Ct. Act §§ 1011, 1043. For example, a state appellate court held that in an abuse and neglect proceeding involving parents charged with murdering their 6-year-old child, the family court erred in opening the proceedings to the public “in light of the extraordinarily sensitive and personal nature of the information that will be addressed . . . coupled with the strong evidence presented that publication of this information would be harmful to the [surviving] children and the impossibility of protecting the children’s right to privacy due to the previous disclosure of the children’s identities.” Matter of Ruben R., 641 N.Y.S.2d 621, 629 (N.Y. App. Div. 1996); see also In re A.H., No. NN-2734-06, 2007 WL 2331882, at *2 (N.Y. Fam. Ct. Aug. 8, 2007) (denying access to child protective hearing to protect children’s privacy and avoid psychological harm); In re S./B./B./R. Children, 34 Media L. Rep. (BNA) 2147, 2152 (N.Y. Fam. Ct. 2006) (denying access to child protective proceedings because public attention would be detrimental to children’s mental health and welfare and suggesting instead that the media cover “the hundreds of truly ‘anonymous’ child protective cases filed each year”). Yet other New York courts have recognized that the strong presumption of public access to court proceedings extends to those before the family court. The state appellate court noted that “public access to court proceedings is strongly favored, both as a matter of constitutional law and as statutory imperative.” Anonymous v. Anonymous, 550 N.Y.S.2d 704, 705 (N.Y. App. Div. 1990).

Last December, the chief administrative judge of the New York courts issued “general guidelines to help ensure public access to Family Court proceedings” — a move prompted by a Nov. 18, 2011, New York Times article reporting routine and regular violations of the public’s right of access to family court proceedings. Memorandum from the Hon. A. Gail Prudenti to New York administrative judges (Dec. 19, 2011), available at http://www.rcfp.org/sites/default/files/docs/20111221_061013_ny_guidelin.... According to the article, a reporter “tried to enter 40 courtrooms [during one week] in [New York City’s] five Family Courts as a member of the public or a civic group monitoring the courts would. Entry was permitted to only five of the courtrooms . . . a closing rate of nearly 90 percent.” The reporter encountered “antagonistic” court officials and officers, several of whom cited “court policy” as the rationale for barring public access. One judge called the reporter to the bench and told him he had to present his credentials to the court clerk on another floor, and in another instance, the chief court clerk told the journalist he had to answer the clerk’s questions before gaining access. William Glaberson, New York Family Courts Say Keep Out, Despite Order, N.Y. Times, Nov. 18, 2011, at A1.

In addition to reiterating the procedure for barring public access, the guidelines state that court staff, “in a respectful manner,” may ask each person who wants to observe a proceeding if he or she is a party, witness or otherwise associated with a specific case scheduled to be heard. Courtroom staff will inform the judge of the presence of a member of the news media or general public and advise whether that individual has any role in the matter. When that case is called, the judge may notify the litigants that an outside party is in attendance and ask if they have any objections. The memo also notes that a person who wishes to observe the proceeding will be allowed to sit in the courtroom subject to capacity limitations. Memorandum from the Hon. A. Gail Prudenti.

Delinquency and dependency records: The records of any proceeding in family court are not open to “indiscriminate” public inspection. But the court may in the exercise of its discretion allow the inspection of any papers or records in any case. N.Y. Fam. Ct. Act § 166. However, in cases involving child abuse or maltreatment, information about the abuse or maltreatment and investigation into and services related to may be publicly disclosed if a state or local commissioner of social services determines that such disclosure is not contrary to the best interests of the child, the child’s siblings or other children in the house and any of the following factors is present: 1) the subject of the abuse or maltreatment report has been charged with committing a crime related to a report maintained in the statewide central register; 2) a law enforcement agency or official, a district attorney, any other state or local investigative agency or official or a judge publicly disclosed in a report required to be disclosed in the course of their official duties the investigation into the child abuse or maltreatment by the local child protective service or the provision of services by such service; 3) an individual named as the subject of a child abuse or maltreatment report previously made a knowing, voluntary, public disclosure concerning the report; or 4) the child named in the abuse or maltreatment report died or the report involves the near death of a child. Information released under this criteria may include, among other facts, the name and age of the abused or maltreated child and the identification of child protective or other services provided or actions taken regarding the child named in the report and the child’s family in response to the report. The disclosure of such information is limited, however, when the investigation into the report of abuse or maltreatment is ongoing; nor may the disclosed information identify the source of the report or other members of the child’s household who are not the subject of the report. When deciding whether disclosure would be contrary to the best interests of the child or others, the commissioner will consider the privacy of the child and the child’s family and the effects disclosure may have on efforts to reunite and provide services to the family. N.Y. Soc. Serv. Law § 422-a. Interpreting this statute, a New York trial court held that county social services records relating to a family, the father of which was convicted of murder in connection with a fire that killed his children, should be released under the state open records law where the county commissioner had determined that disclosure was in the public interest, he gave no specific reasons for nondisclosure, much of the information had already been released through the criminal proceedings and there were no surviving children whose best interests had to be considered. Gannett Co., Inc. v. County of Ontario, 661 N.Y.S.2d 920, 921 (N.Y. Sup. Ct. 1997).

In addition, civil or criminal court records relating to juveniles may be sealed in certain circumstances. A state trial court denied motions to seal records in a civil lawsuit brought against a school district by the parents of students allegedly sexually abused and held that where the identities of the alleged offenders had already been published and the identities of the alleged victims were known to the media, the mere fact that embarrassing allegations might be made against the school district was an insufficient showing of good cause to outweigh the presumption against sealing court records. In such cases, the media’s First Amendment right to report and the public’s right to be informed of allegations of sex crimes contained in court records outweighed the confidentiality interests of the parties. But the court did order that pseudonyms of the alleged victims be used in all court documents and that any documents using their real names be redacted. Doe v. Bellmore-Merrick Cent. High Sch. Dist., 770 N.Y.S.2d 847, 850—51 (N.Y. Sup. Ct. 2003).

Restrictions on coverage: New York law allows child victims and witnesses 14 years old or younger to testify about sexual offenses outside the presence of the defendant via closed-circuit television. Unless the courtroom has been closed pursuant to a court order, the public may hear the testimony and view the image of the child witness as it is broadcast in the courtroom. N.Y. Crim. Proc. Law §§ 65.00—.30. In addition, the state’s highest appellate court held that a trial court did not abuse its discretion when it excluded the media and public from a pretrial suppression hearing in the murder prosecution of a 13-year-old and instead granted the media access to a redacted transcript of the hearing. Because that transcript excluded matters ruled inadmissible during the closed suppression hearing, the defendant’s interest in a fair trial was no longer in jeopardy. Merola v. Bell, 393 N.E.2d 1038, 1039 (N.Y. 1979).