01C

C. Overcoming a presumption of openness

C. Overcoming a presumption of openness

Overview

Pennsylvania

The Pennsylvania Superior Court explained what is required to overcome the presumption of access:

There are two methods for analyzing requests for closure of judicial proceedings, each of which begins with a presumption of openness--a constitutional analysis and a common law analysis. Under the constitutional approach, which is based on the First Amendment of the United States Constitution and Article I, Section 11 of the Pennsylvania Constitution, the party seeking closure may rebut the presumption of openness by showing that closure serves an important governmental interest and there is no less restrictive way to serve that interest. Under the common law approach, the party seeking closure must show that his or her interest in secrecy outweighs the presumption of openness.

PA Childcare, LLC v. Flood, 887 A.2d 309, ___ (Pa. Super. Ct. 2005).

C. Overcoming a presumption of openness

Overview

Maryland

On a number of occasions, Maryland’s appellate courts have considered the First Amendment right in the context of criminal proceedings and have consistently required that parties seeking closure demonstrate that the public’s right to access is overridden by a compelling state interest that cannot be protected by alternative means. E.g., Baltimore Sun Co. v. Colbert, 323 Md. 290, 302-03, 593 A.2d 224, 230 (1991) (the “presumption that pretrial proceedings are open to the public can be overcome only by an ‘overriding interest,’ such as an accused’s right to a fair trial”); id. (to overcome the presumption, “[t]he trial court must find specifically that no reasonable alternative short of closure of the courtroom will protect the defendant’s right to a fair trial”); Buzbee v. Journal Newspapers, Inc., 297 Md.

C. Overcoming a presumption of openness

Overview

Kansas

The presumption that courts are open in Kansas can be overcome only if the trial judge “‘affirmatively concludes’” that “‘the dissemination of information from the pretrial proceeding and its record would create a clear and present danger to the fairness of the trial,’” and that “‘the prejudicial effect of such information on trial fairness cannot be avoided by any reasonable alternative means.”’ Kansas City Star Co. v. Fossey, 630 P.2d 1176, 1182-1183 (Kan. 1981), quoting Fair Trial and Free Press: Standard 8-3.2 of the American Bar Association's Standing Committee on Association Standards for Criminal Justice (August, 1978)).

C. Overcoming a presumption of openness

Overview

Oklahoma

Oklahoma cases have recognized that the presumption of openness is merely a presumption; and the right of the public to access to judicial proceedings or records is not absolute and can be overcome by narrowly drawn restrictions supported by compelling reasons. See, e.g., Nichols v. Jackson, 2002 OK 65, 55 P.3d 1044; Nichols v. Jackson, 2001 OK CR 35, 38 P.2d 228; Reeves v. State, 1991 OK CR 101, 818 P.2d 495; Shipman v. State, 1982 OK CR 3, 639 P.2d 1248.

C. Overcoming a presumption of openness

Overview

D.C. Cir.

Where the First Amendment qualified right of access applies, the government has the burden of demonstrating that denying access to the documents advances a compelling interest and that the denial of access is narrowly tailored to serve that interest. In re Application of New York Times Co. for Access to Certain Sealed Court Records, 585 F.Supp.2d 83, 87 n. 3 (D.D.C. 2008); Washington Post v. Robinson, 935 F.2d 282, 288 (D.C. Cir.

C. Overcoming a presumption of openness

Overview

Maine

No Maine cases.

C. Overcoming a presumption of openness

Overview

Oregon

In Oregon, proceedings may be closed where the proceeding is not an adjudication, or where the proceeding was traditionally closed prior to the adoption of the Oregon constitution. See Oregonian Publishing Co. v. O’Leary, 303 Or. 297, 303, 736 P.2d 173 (1987).

C. Overcoming a presumption of openness

Overview

1st Cir.

Although the public’s right to “inspect [judicial] records is not absolute, ....the presumption is nonetheless strong and sturdy” since “only the most compelling reasons can justify non-disclosure of judicial records.” F.T.C. v. Standard Fin. Mgmt. Corp., 830 F.2d 404, 410 (1st Cir. 1987).