C. Overcoming a presumption of openness

Overview

Where a constitutional presumption of access applies, the court may close proceedings only after making specific, on-the-record findings: (1) that closure is necessary to further a compelling governmental interest; (2) the closure order is narrowly tailored to serve that interest; and (3) that no less restrictive means are available to adequately protect that interest. Press-Enterprise Co. v. Superior Court (Press-Enterprise II), 478 U.S. 1, 13-14 (1986); see also Press-Enterprise Co. v. Superior Court (Press-Enterprise I), 464 U.S. 501, 510-11 (1984); Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 607 (1982) (access restrictions must be “necessitated by a compelling governmental interest, and … narrowly tailored to serve that interest”). The party seeking access restrictions bears the burden of showing the procedure is “strictly and inescapably necessary.” Associated Press v. District Court, 705 F.2d 1143, 1145 (9th Cir. 1983).

The common-law right of access generally is less absolute than the constitutional right – at times bowing, for example, to the less-than-compelling interest in ensuring that court records “are not ‘used to gratify private spite or promote public scandal’ through the publication of ‘the painful and sometimes disgusting details of a divorce case.’”Nixon v. Warner Communications, Inc., 435 U.S. 589, 598 (1978) (internal citation omitted). The Supreme Court found it “difficult to distill … a comprehensive definition of what is referred to as the common-law right of access or to identify all the factors to be weighed in determining whether access is appropriate,” instead concluding that “the decision as to access is one best left to the sound discretion of the trial court, a discretion to be exercised in light of the relevant facts and circumstances of the particular case.” Id. at 598-99.

6th Cir.