01B

B. The common-law presumption of access

B. The common-law presumption of access

Overview

Pennsylvania

In Pennsylvania, the common law grants the public and press a presumptive right of access to “public judicial documents.”  Commonwealth v. Fenstermaker, 530 A.2d 414, 418 (Pa. 1987); see also Commonwealth v. Martinez, 917 A.2d 856, 860 (Pa. Super. Ct. 2007).  The common law presumption of openness requires courts to balance “the presumption of openness attached to a public judicial document” against the “circumstances warranting closure of the document to public inspection.”  Id. at 420.

B. The common-law presumption of access

Overview

3rd Cir.

The Third Circuit recognizes a common law right of access to judicial records, excluding material the court deems “impermissibly injurious” to third parties. See United States v.

B. The common-law presumption of access

Overview

California

California has recognized a common law right of access to judicial documents once they are filed for consideration by the court. See In re Coordinated Pretrial Proceedings, 101 F.R.D. 34 (C.D. Cal. 1980). 

B. The common-law presumption of access

Overview

Maryland

The Maryland Court of Appeals has recognized a common law right of access to both court proceedings and court records. In Baltimore Sun Co. v. Mayor & City Council of Baltimore, 359 Md. 653, 755 A.2d 1130 (2000), the Court of Appeals declined to consider whether the public has a First Amendment right to attend a settlement conference in a civil case, or to access the records concerning the settlement. Id. at 659, 755 A.2d at 1133-34. Instead, the court canvassed the history of public access to both civil and criminal trials dating back to pre-colonial times, and concluded that “‘historically both criminal and civil trials have been presumptively open’ to the public.” Id. at 660, 755 A.2d at 1134, quoting Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 566-67 (1980).

B. The common-law presumption of access

Overview

Kansas

Before the Kansas Supreme Court embraced a presumption of openness in Kansas City Star Co. v. Fossey, 630 P.2d 1176 (Kan. 1981), it acknowledged the common law right of access to records in Stephens v. Van Arsdale, 608 P.2d 972 (1980).  The state supreme court said that a judge had discretion to deny access to court records if they are to be used “‘to gratify private spite or promote public scandal’ through the publication of the details of a divorce case or for the publication of libelous statements for press consumption, or as sources of business information that might harm a litigant's competitive standing.”  Id. at 982, quoting  Nixon v. Warner Communications, Inc., 435 U.S. 589, 598 (1978).

B. The common-law presumption of access

Overview

New Mexico

New Mexico adopted the Tenth Circuit’s holding in United States v. Hickey, 767 F.2d 705 (10th Cir. 1985) that there was a common law right to inspect and copy judicial records, which explained that the purpose behind the right is to aid in preserving the integrity of the judicial process. See Thomas v. Thomas, 128 N.M. 177, 991 P.2d 7 (1999).