E. Procedural prerequisites to closure

Overview

Where a presumption of access applies, courts must make specific, on the record findings about the need for closure. Press-Enterprise Co. v. Superior Court (Press-Enterprise II), 478 U.S. 1, 13-14 (1986). Lower courts have specified the procedure that should be followed. In a criminal case, for example:

First, the district court must give the public adequate notice that the closure of a hearing or the sealing of documents may be ordered. In particular, closure motions must be docketed reasonably in advance of their disposition so as to give the public and press an opportunity to intervene and present their objections to the court. Moreover, although individual notice is generally not necessary, when the district court has been made aware of the desire of specific members of the public to be present, reasonable steps to afford them an opportunity to submit their views should be taken before closure. Second, the district court must provide interested persons an opportunity to object to the request before the court ma[kes] its decision. Third, if the district court decides to close a hearing or seal documents, it must state its reasons on the record, supported by specific findings. Its findings must be specific enough to enable the reviewing court to determine whether closure was proper. In addition, the court must state its reasons for rejecting alternatives to closure.

In re Washington Post Co., 807 F.2d 383, 390-91 (4th Cir. 1986) (citations and quotations omitted). Failing to observe the procedural prerequisites to closure constitutes error even if the closure might otherwise be proper, and appellate courts generally will “remand the issue to the district court for a second consideration using correct procedures and correct substantive standards.” Id. at 393.

6th Cir.