The Supreme Court has not recognized a right of access to juvenile delinquency proceedings or records. In an early case, the Supreme Court found that “[t]here is no reason why, consistently with due process, a state cannot . . . provide . . . for the confidentiality of records of police contacts and court action relating to juveniles.” In re Gault, 387 U.S. 1, 25 (1967).
The First Circuit held that proceedings conducted pursuant to the federal Juvenile Delinquency Act may be closed only on a case-by-case basis, when necessary to preserve legitimate confidentiality interests and only after reasonable alternatives to closure have been considered. United States v. Three Juveniles, 61 F.3d 86, 86-87 (1st Cir. 1995) (“We hold that the Act authorizes, but does not mandate, closure of juvenile proceedings.”). The court held:
For these reasons, we hold that the Act does not mandate across-the-board closure for all juvenile proceedings, but merely authorizes closure, or any other measures designed to ensure confidentiality, to be determined on a case-by-case basis at the discretion of the district court. We think that this interpretation fully comports with the purpose and language of the statute as a whole, and is far preferable to a strained construction of the Act that mandates complete closure and thus triggers First Amendment concerns.
Id. at 92. The court declined to rule on whether a “common law right of access applies to juvenile court records.” Id. at 94 n.9.
Given that the Supreme Court has not recognized a right of access to juvenile delinquency proceedings or records, the confidentiality of proceedings involving minors varies from state to state. In the Second Circuit, the Court has upheld New York State statutes providing for the confidentiality of public agency records pertaining to abandoned, delinquent, destitute, neglected or adopted children. Alma Soc. Inc. v. Mellon, 601 F.2d 1225, 1229 (2d Cir. 1979); see also Singleton v. City of New York, 632 F.2d 185, 194 (2d Cir. 1980) (discussing New York State rule requiring that records generated in juvenile proceedings are segregated from those involving the arrests of adults, and all fingerprints and photographs generated pursuant to juvenile delinquency adjudications must be destroyed by the police department when and if the individual reaches the age of 21 without having suffered any criminal convictions).
“Throughout and upon the completion of the juvenile delinquency proceeding, the records shall be safeguarded from disclosure to unauthorized persons.” 18 U.S.C. § 5038. This includes both the name and the picture of the minor. United States v. Doe, 801 F. Supp. 1562, 1566 n.1 (E.D. Tex. 1992). These records may be inspected only by certain individuals and agencies designated by the statute. 15 U.S.C. § 5038.
The Seventh Circuit has observed that under the Illinois Juvenile Court Act, law enforcement and court records relating to juveniles are sealed, 705 ILCS 405/1–7, –8, “but that doesn’t preclude the victim of a juvenile crime, or anyone else for that matter (us judges for example), from talking about the crime, whether privately or in public. Indeed, we know from the Pentagon Papers case . . . and from many cases since, that often the First Amendment is held to protect a disclosure of state secrets that violates state law—not to mention obnoxious invasions of personal privacy. . . .” Gschwind v. Heiden, 692 F.3d 844, 847 (7th Cir. 2012) (citing Cox Broad. Corp. v. Cohn, 420 U.S. 469 (1975)).
The Supreme Court has not recognized any right of access to juvenile proceedings or records. Federal law states that “throughout and upon the completion of the juvenile delinquency proceeding, the records shall be safeguarded from disclosure to unauthorized persons.” 18 U.S.C. § 5038 (2018). State law will often govern the confidentiality of such proceedings as well.
Alabama law allows the parties, their counsel, witnesses, and other persons requested by a party to be admitted to delinquency hearings. Ala. Code § 12-15-129 (2019). Other persons as the juvenile court finds to have a “proper interest” in the case or in the work of the juvenile court may be admitted by the juvenile court on condition that the persons refrain from divulging any information which would identify the child under the jurisdiction of the juvenile court or family involved. Id. The general public is specifically excluded from delinquency hearings. Id.
Juvenile delinquency matters are governed by AS 47.12.010 et seq. Section 47.12.110(a) provides: “The public shall be excluded from the hearing, but the court, in its discretion, may permit individuals to attend a hearing (on a petition to adjudicate a minor as delinquent) if their attendance is compatible with the best interests of the minor. Nothing in this section may be applied in such a way as to deny a minor's rights to confront adverse witnesses, to a public trial, and to a trial by jury.”
Notwithstanding section 47.12.110(a), a court hearing on a petition seeking the adjudication of a minor as a delinquent shall be open to the public, except as prohibited or limited by order of the court, if (1) the department files with the court a motion asking the court to open the hearing to the public, and the petition seeking adjudication of the minor as a delinquent is based on (A) the minor's alleged commission of an offense, and the minor has knowingly failed to comply with all the terms and conditions required of the minor by the department or imposed on the minor in a court order; (B) the minor's alleged commission of (i) a crime against a person that is punishable as a felony; (ii) a crime in which the minor employed a deadly weapon (b), in committing the crime; (iii) arson; (iv) burglary; (v) distribution of child pornography; (vi) promoting prostitution in the first degree; or (vii) misconduct involving a controlled substance under AS 11.71 involving the delivery of a controlled substance or the possession of a controlled substance with intent to deliver; or (C) the minor's alleged commission of a felony and the minor was 16 years of age or older at the time of commission of the offense when the minor has previously been convicted or adjudicated a delinquent minor based on the minor's commission of an offense that is a felony; or (2) the minor agrees to a public hearing on the petition seeking adjudication of the minor as a delinquent, AS 47.12.110(d), or when the district attorney has elected to seek imposition of a dual sentence and a petition has been filed under AS 47.12.065, or when a minor agrees as part of a plea agreement to be subject to dual sentencing. AS 47.12.110(e).
In a 1971 case interpreting Alaska Constitution, art. 1, §11, and the Sixth Amendment to the U.S. Constitution, the Alaska Supreme Court established that children are entitled to a public trial by the Alaska Constitution, and that rules providing for closing of juvenile delinquency proceedings to the public must be interpreted and applied in a manner consistent with the child’s constitutional right to a public trial. R.L.R. v. State, 487 P.2d 27, 35–38 (Alaska 1971). R.L.R. extensively discussed the important purposes served by enforcing a right to public trials, including “teach[ing] the spectators about their government and giv[ing] them confidence in their judicial remedies.” The R.L.R. court noted a diversity of opinion on the policy question but noted that “in both the federal and Alaska's constitutions, the right to public trial is part of a list of rights explicitly stated to be rights of the accused.” But this case was decided before Richmond Newspapers and its progeny established that there is a First Amendment right of the press and public to attend trials, and it did not expressly address this First Amendment question. Citing pre-Richmond federal authority it concluded, “thus the right of ‘public trial’ is not one belonging to the public, but one belonging to the accused,” Id. at 36 (quoting Justice Harlan’s concurring opinion in Estes v. Texas—which itself was later distinguished and superseded in the cases recognizing a First Amendment right of access to courts). The Alaska court in R.L.R. did say that “The reasons for the constitutional guarantees of public trial apply as much to juvenile delinquency proceedings as to adult criminal proceedings.” Id. at 38. The last sentence in AS 47.12.110(a) cited at the beginning of this section reflects holdings of R.L.R. guaranteed juveniles the right to jury trial, and a public trial, and in Davis v. Alaska, 499 P.2d 1025 (Alaska 1972), rev’d. sub nom Davis v. State, 415 U.S. 308 (1974).
Under Rule 123(d)(1)(A) of the Arizona Supreme Court Rules, “[r]ecords of all juvenile delinquency and incorrigibility proceedings are open to the public to the extent provided for in the Rules of Procedure for the Juvenile Court or by law.”
Rule 19(A) of the Juvenile Court Rules explains that the Court shall maintain a “legal file” for each matter, and certain information within that file may be marked as “confidential.” The Rule also permits a judge to order that “all or part of the legal file” may be closed “upon a finding of a need to protect the welfare of the child or another person or a clear public interest in confidentiality.” With the exception of the portions of the file marked confidential, “the legal file shall be open to public inspection without order of the court.” Further, the “court shall state its reasons for withholding the legal file, or portions thereof, from public inspection.”
Delinquency, incorrigibility, and diversion proceedings “shall be open to the public, except upon the court’s written finding of a need to protect the best interests of a victim, the juvenile, a witness, the state, or a clear public interest in confidentiality.” Ariz. R. Juv. Ct. 19(B).
Under Welfare & Institutions Code § 676, delinquency hearings generally are closed to the public, with three exceptions: (1) when the minor and a parent or guardian requests an open hearing; (2) when the court exercises its discretion to admit persons it “deems to have a direct and legitimate interest in the particular case or the work of the court,” which can include the press; or (3) when the minor is charged with one of the serious criminal offenses listed in the statute, including murder, arson, armed robbery, rape, kidnapping, carjacking, etc. Id. § 676(a).
Where a juvenile is charged with one of the enumerated serious criminal offenses from Welfare & Institutions Code § 676(a), “courts have given a broad reading to the public’s right to attend the hearings.” KGTV Channel 10 v. Superior Court, 26 Cal. App. 4th 1673, 1679 n.4, 32 Cal. Rptr. 2d 181 (1994) (detention hearing for a juvenile charged with murder); see also Cheyenne K. v. Superior Court, 208 Cal. App. 3d 331, 332, 256 Cal. Rptr. 68 (1989) (competency hearing for juvenile charged with murder); Brian W. v. Superior Court, 20 Cal. 3d 618, 626, 574 P.2d 788, 143 Cal. Rptr. 717 (1978) (fitness hearing; murder and other crimes); Tribune Newspapers West, Inc. v. Superior Court, 172 Cal. App. 3d 443, 446, 221 Cal. Rptr. 673 (1985) (fitness hearing; bank robbery).
A court can close a hearing that is otherwise open under Welfare & Institutions Code § 676(a) if the minor “establishes a reasonable likelihood of substantial prejudice to the right to receive a fair and impartial trial.” KGTV Channel 10, 26 Cal. App. 4th at 1684-1685.
Juvenile delinquency proceedings (adjudicating allegations that children have committed crimes) in state court are closed except as to complaining witnesses. Conn. Gen. Stat. § 54-76h(b).
State law also mandates the confidentiality of all information pertaining to a delinquency proceeding. Conn. Gen. Stat. § 46b-124; Conn. R. Sup. Ct. § 30a-8. This includes police records concerning the arrest of a juvenile; all court proceedings, including detention and probation, which are administered by the Judicial Branch; and post-adjudication secure treatment facilities, which are administered by DCF.
Disclosure is allowed only to those involved with the case or those “who may have a legitimate need for the information.” These include court personnel who require access to the records; employees of agencies involved in the proceedings or providing services to the juvenile; law enforcement conducting criminal investigations. The victim of the act at issue may also receive certain information. Conn. Gen. Stat. § 46b-124a. Redisclosure is strictly limited. Conn. Gen. Stat. §§ 46b-124(c), (d), (e).
The Supreme Court has held that the strong presumption of confidentiality of juvenile records justifies a narrow construction of the discretion afforded a trial court with regard to releasing information. See In re Sheldon G., 216 Conn. 563, 568, 583 A.2d 112, 115 (1990) (construing disclosure statute), abrogated in part by Conn. Gen. Stat. § 46b-124a (allowing increased access to information by victims of the offense).
Although federal law provides for the possibility of the District of Connecticut hearing both federal juvenile delinquency matters, 18 U.S.C. § 5032, and of trying juveniles over the age of fifteen as adults for federal crimes, id., both are vanishingly rare.
Under the Juvenile Transfer Act, adopted by the Connecticut legislature in October 2019, defendants between the ages of fifteen and eighteen who are charged with certain felonies and whose cases are transferred to adult criminal court will have their cases shielded from public view, even though these are not delinquency proceedings. Conn. Gen. Stat. Ann. § 46b-127(a)–(b). The Hartford Courant has filed suit challenging the constitutionality of this provision.
The D.C. Circuit upheld the Federal Youth Corrections Act, providing that minors’ conviction records be “automatically set aside” in certain circumstances and requiring that such records be physically removed from central criminal files, placed in a separate storage facility, and not disseminated to anyone, public or private. Doe v. Webster, 606 F.2d 1226 (D.C. Cir. 1979).
District of Columbia
Juvenile proceedings are closed to the public. Journalists may be admitted by applying to the presiding judge. The D.C. Superior Court Rules Governing Juvenile Proceedings specifically provide that “the general public shall be excluded from judicial hearings concerning juvenile delinquency or persons in need of supervision.” Super. Ct. Juv. R. 53(a)(1); see also D.C. Code § 16-2316(e). Nonetheless, “a person having a proper interest in a particular case or in the work of the Family Court may be admitted,” Super Ct. Juv. R. 53(a)(1), and “[a]ny authorized representative of the news media” are among the persons who “shall be deemed to have a proper interest in the work of the Family Court, and shall be admissible to Family Court proceedings after filling out an application pursuant to” Rule 53(a)(1). See Super. Ct. Juv. R. 53(a)(3). Among other things, the applicant is required to state that he or she “will refrain from divulging information identifying the respondent or members of the respondent’s family or any other child involved in the proceedings.” Id. at 53(a)(1).
Interpreting these rules in In re J.D.C., 594 A.2d 70 (D.C. 1991), the D.C. Court of Appeals directed that all media be excluded from proceedings in the trial of a juvenile charged in a shooting death, where the juvenile had already been identified in an article in The Wall Street Journal. The court held that the admission of the press at juvenile proceedings was a “discretionary” determination for the trial court. Id. at 75. In particular, the court explained: “[I]f there is no reasonable assurance that the admission of the press will be consistent with the protection of a juvenile respondent’s anonymity, then exclusion may be the only alternative which will not compromise the legislature’s paramount aim.” Id.
Delinquency hearings are presumptively “open to the public, and no person may be excluded except upon special order of the court.” Fla. Stat. § 985.035(1). The statute also specifically provides that, except as provided in subsection (1), “nothing in this statute shall prohibit the publication of proceedings in a hearing.” § 985.035(2). However, the court, in its discretion, “may close any hearing to the public when the public interest and the welfare of the child are best served by so doing.” Fla. Stat. § 985.035(1).
Juvenile court records are closed to inspection except in limited circumstances. Fla. Stat. § 985.045(2). See also Fla.R. Jud. Admin. 2.420(d)(1)(B)(xvii) (noting that clerks must automatically seal delinquency records). The child, parents, guardians, or legal custodians of the child, and a variety of law enforcement agencies, may inspect the court records. Fla. Stat. § 985.045(2). Otherwise, a court order is necessary in which the court finds that the person requesting access has “a proper interest” in the requested records. Id. There is a limited right of access for the compilation of statistical information for authorized representatives of recognized organizations, such as the media. Id.; see also Op. Att’y Gen. Fla. 91–32 (1991) (allowing access to a newspaper of general circulation under a similar provision of another such statute). Typically, orders allowing access for such research purposes will provide that identifying information be redacted.
A law enforcement agency may release for publication the “name, photograph, address, and crime or arrest report” of a child taken into custody “for a violation of law which, if committed by an adult, would be a felony.” Fla. Stat. § 985.04(2)(a)1.a. The law enforcement agency may also reveal the identity of a child: (1) “charged with a violation of law, which if committed by an adult, would be a felony,” (2) “found to have committed an offense which, if committed by an adult, would be a felony”, or (3) “transferred to adult court pursuant to part X of this chapter.” Fla. Stat. § 985.04(2)(a)1.b-d. Law enforcement agencies should release such juvenile offender records, unless some other justifiable reason exists for keeping the record confidential.
The law enforcement agency is not confined to release of the name, photograph, and address of the juvenile, but also may release other background information regarding the offense or arrest. Op. Att’y Gen. Fla. 94-91 (1994); see also Fla. Stat. § 985.04(2) (releasable information includes the crime or arrest report of the child). Further, law enforcement records which “have been transmitted to and are in the hands of a criminal justice agency such as the Department of Juvenile Justice” also may be released. Op. Att’y Gen. Fla. 94-91 (1994). The only information that remains non-public are those law enforcement records of juveniles arrested for a felony prior to October 1, 1994. Op. Att’y Gen. Fla. 95-19 (1995).
If the juvenile has committed some other delinquent act, which, if committed by an adult, would be a crime but not a felony, the record is confidential and only will be released to specified, interested agencies, certain relatives, and upon order of the court. Fla. Stat. § 985.04(1) (information obtained by the Department of Juvenile Justice, Florida Commission on Offender Review, the Department of Corrections, circuit juvenile justice circuit boards, any law enforcement agent or any licensed professional community agency participating in the assessment or treatment of a juvenile is confidential); see also Harvard ex rel. J.H. v. Vill. of Palm Springs, 98 So. 3d 645 (Fla. 4th DCA 2012) (permitting release of juvenile record to victim was discretionary, rather than mandatory, and videotaped interview of minor was exempt from public records request).
However, reporters wishing to obtain generalized information for research purposes should be aware that there is a conditional, limited right of access in this provision for the compilation of statistical information in this statute as well. See Fla. Stat. § 985.04(7)(a).
Georgia’s juvenile code affords a presumptive statutory right of public access to records and proceedings concerning an “adjudicatory hearing involving an allegation of delinquency brought in the interest of any child who has previously been adjudicated for committing a delinquent act; provided, however, the court shall close any delinquency hearing on an allegation of sexual assault or any delinquency hearing at which any party expects to introduce substantial evidence related to matters of dependency.” O.C.G.A. §§ 15-11-700(b)(2); 15-11-704(b).
In the case of other delinquency proceedings, the Georgia Supreme Court has held that, based on constitutional considerations, the public and/or press must be given an opportunity to show that the state’s or juveniles’ interest in a closed hearing is not overriding or compelling, in which case access must be granted. Florida Publ’g Co. v. Morgan, 253 Ga. 467 (1984).
Idaho rules approach juvenile criminal records differently depending on the defendant’s age and nature of the criminal charge. The court determines this at an “admit/deny hearing,” which is similar to an arraignment in an adult criminal proceeding and which often is combined with the initial detention hearing. See Idaho Juvenile Rule 6(a), et seq. For juveniles under 14 years of age, or for those charged with a crime that would not be considered a felony if committed by an adult, records are exempt from public disclosure if the court says so in writing. I.C.A.R. 32(g)(9)(B). For juveniles 14 years or older who are charged with a crime that would be considered a felony if committed by an adult, the court must determine that “extraordinary circumstances” exist that justify closing the records. Id.
In Illinois, access rights to juvenile proceedings are governed by the Juvenile Court Act of 1987 (the Act). Section 1-5(6) of the Act provides:
(6) The general public except for the news media and the crime victim, as defined in Section 3 of the Rights of Crime Victims and Witnesses Act, shall be excluded from any hearing and, except for the persons specified in this Section only persons, including representatives of agencies and associations, who in the opinion of the court have a direct interest in the case or in the work of the court shall be admitted to the hearing. However, the court may, for the minor's safety and protection and for good cause shown, prohibit any person or agency present in court from further disclosing the minor's identity. Nothing in this subsection (6) prevents the court from allowing other juveniles to be present or to participate in a court session being held under the Juvenile Drug Court Treatment Act.
705 Ill. Comp. Stat. 405/1-5(6) (West 2019). This provision allows the trial court to suppress the minor’s identity but nothing beyond that. In re M.B., 137 Ill. App. 3d 992, 999, 484 N.E.2d 1154, 1159, 92 Ill. Dec. 299, 304 (Ill. App. Ct. 4th Dist. 1985) (construing identical language in the previous version of the Act). Any court order that prohibits more than disseminating the minors’ identities is subject to strict scrutiny. Id. When a judge issues a prior restraint in the context of pending judicial proceedings, the order will be invalid unless “it is: (1) necessary to obviate a ‘serious and imminent threat of impending harm, which (2) cannot adequately be addressed by other, less speech-restrictive means.” In re A Minor, 127 Ill.2d 247, 265, 537 N.E.2d 292, 300, 130 Ill. Dec. 225, 233 (1989) (emphasis added). In In re A Minor, the Supreme Court of Illinois determined this standard was not met where the newspaper learned the minor’s name with routine reporting techniques and the state asserted the minor’s safety as the reason for the order. Id. at 269, 537 N.E.2d at 301, 130 Ill. Dec. at 234. The court noted that the fears for the minor’s safety were speculative and protective custody was an available alternative. Id. at 270, 537 N.E.2d at 302, 130 Ill. Dec. at 235.
In M.B., the court found that protecting the minor defendants’ safety was a strong state interest, but it did not justify the trial court’s prohibition against publishing the identity, placement, or location of the minors. In re M.B., 137 Ill. App. at 1000, 484 N.E.2d at 1160, 92 Ill. Dec. at 305. Some of this information had already been disseminated, and the appellate court held that there were less restrictive means of protecting the minors. Id. at 1000, 484 N.E.2d at 1159-60, 92 Ill. Dec. at 304-05.
Indiana Code Section 31-39-2-8 governs public access to records of juvenile delinquency proceedings. The general rule is that juvenile records are available to the public, with restrictions, whenever a petition is filed alleging that a child is delinquent based on the following acts: (1) an act that would be murder or a felony if committed by an adult, (2) an aggregate of two unrelated acts that would be misdemeanors if committed by an adult if the child was at least twelve (12) years of age when the acts were committed; or (3) an aggregate of five unrelated acts that would be misdemeanors if committed by an adult if the child was less than twelve (12) years of age when the acts were committed. Ind. Code § 31-39-2-8(a). Subsection (b) of Indiana Code Section 31-39-2-8 limits the types of information or documents that may be released. Ind. Code § 31-39-2-8(b).
Indiana Code Section 31-32-6-3 provides that delinquency proceedings are open to the public whenever a petition alleges that the child has committed an act that would be murder or a felony if committed by an adult, except as Indiana Code Section 31-32-6-4 provides. See also Phelps v. State, 969 N.E.2d 1009, 1017–18 (Ind. Ct. App. 2012) (holding that the question of whether the juvenile proceedings should have remained open was a moot question).
In Iowa, at any time during juvenile proceedings, the court, on the motion of any of the parties or upon the court’s own motion, may exclude the public from hearings if the court determines that the possibility of harm to the child outweighs the public’s interest in having an open hearing. Iowa Code § 232.39 (2018). If the court has excluded the public from a hearing, the transcript of the proceedings shall not be deemed a public record and inspection and disclosure of the contents of the transcript will not be permitted except pursuant to court order. Iowa Code § 232.147(2)(c) (2018). Typically, Juvenile court records are confidential, and the contents will not be disclosed except as provided by statute. Iowa Code § 232.147(1) (2018).
Official juvenile court records in cases alleging delinquency are public records but the records are subject to several restrictions including confidentiality orders and sealing. Iowa Code § 232.147(2)(b) (2018). Upon application of the accused or upon the court’s own motion, the court shall order official juvenile court records in a case to be kept confidential and no longer public records if the court finds that the case has been dismissed and the person is no longer subject to the jurisdiction of the juvenile court and making the records confidential is in the best interests of the person and the public. Iowa Code § 232.149A (2018). In addition, juvenile records may be sealed if the court finds “[t]he person is eighteen years of age or older and two years have elapsed since the last official action in the person’s case . . . [t]he person has not been subsequently convicted of a felony or an aggravated or serious misdemeanor or adjudicated a delinquent child for an act which if committed by an adult would be a felony, an aggravated misdemeanor, or a serious misdemeanor and no proceeding is pending seeking such conviction or adjudication. . . [and] [t]he person was not placed on youthful offender status, transferred back to district court after the youthful offender’s eighteenth birthday, and sentenced for the offense which precipitated the youthful offender placement.” Iowa Code § 232.150 (2018). The court also retains jurisdiction over certain matters even after the child attains the age of majority and may order the records to be sealed after the case has terminated. In re B.A., 737 N.W.2d 665, 668 (Iowa Ct. App. 2007); see Iowa Code § 232.150 (2018).
The Kansas juvenile code provides that, in general, “[a]ll hearings shall be open to the public . . . .” A hearing may be closed only if a judge determines that opening it “is not in the best interests of the victim or of any juvenile who at the time of the alleged offense was less than 16 years of age.” The rule in favor of openness applies to “detention, first appearance, adjudicatory, sentencing and all other” juvenile hearings. K.S.A. 38-2353(a).
In a 2008 case, the Kansas Supreme Court observed that the Legislature generally had “eliminated the presumption of confidentiality” for juvenile hearings, and also acknowledged various ways in which juvenile records have been opened. In re L.M., 186 P.3d 164, 170 (Kan. 2008) (citing K.S.A. 38-2353). The official file in a juvenile case is open, with an exception for juveniles under the age of fourteen, if a judge finds that closure is in their best interests. In re L.M., 186 P.3d 164 (citing K.S.A. 38-2309(b)). Also, law enforcement records and municipal court records for juveniles age fourteen and over are open on the same terms as records for adults. In re L.M., 186 P.3d 164 (citing K.S.A. 38-2310(c)). Confidentiality applies only to the law enforcement and municipal records of juveniles under the age of fourteen. In re L.M., 186 P.3d 164 (citing K.S.A. 38-2310(a)).
The juvenile code makes clear that a judge may close a hearing only after he or she “determines” that an open hearing would not be in the best interest of a juvenile or victim who was under sixteen years of age at the time of the offense. K.S.A. 38-2353(a).
The news media has standing to intervene to assert rights to attend juvenile hearings and obtain juvenile court records. Chi. Tribune Co. v. Muffray, 996 So.2d 1273 (La. App. 2008).
“All proceedings in a juvenile delinquency case involving a crime of violence . . . or a delinquent act which is a second or subsequent felony-grade adjudication shall be open to the public.” La. Ch.C. art. 879. The phrase “all proceedings” means just that—the adjudication hearing, as well as pre-adjudication and post-adjudication hearings are open. State ex rel. D.W., 865 So.2d 45, 48 (La. 2004); Chi. Tribune Co. v. Muffray, 996 So.2d 1273 (La. App. 2008).
In Maine, whether a juvenile hearing is open to the public depends on the nature of the crime committed. Any proceeding on a juvenile crime that would constitute murder or a felony (Class A, Class B or Class C crimes if the juvenile were an adult) is open to the public. 15 M.R.S.A. § 3307(2). Any proceeding involving a misdemeanor is closed unless the proceeding would constitute a Class D crime if the juvenile were an adult and the juvenile is a repeat offender (i.e., if it is the second or subsequent Class D crime not arising from the same underlying transaction). Id. In the case of a juvenile hearing open to the general public, “the petition, the record of the hearing and the order of adjudication are open to public inspection, provided that any court subsequently sentencing the juvenile after the juvenile has become an adult may consider only murder and Class A, Class B and Class C offenses committed by the juvenile.” 15 M.R.S.A. § 3308. The petition, the record of the hearing and the order of adjudication are open to inspection by the victim regardless of whether the hearing is open to the public. Id.
As recognized by the Maryland Court of Appeals in Baltimore Sun Co. v. State, 667 A.2d 166 (Md. 1995), courts “may close juvenile proceedings to the public in instances where closure would be impermissible in other court proceedings.” Id. at 171. Where a minor “in need of supervision” or charged with a delinquent act is charged with conduct that would be a misdemeanor if committed by an adult, “the court may exclude the general public from a hearing, and admit only the victim and those persons having a direct interest in the proceeding and their representatives.” Md. Code Ann., Cts. & Jud. Proc. § 3-8A-13(f)(2). Where the child is charged with conduct that would be a felony if committed by an adult, “the court shall conduct in open court any hearing or other proceeding at which the child has a right to appear.” Id. § 3-8A-13(f)(3)(i). Under such circumstances, “the name of the respondent and the date, time, and location of the hearing” are likewise “open to inspection.” Md. Rule 16-907(a)(2). However, even in these quasi-felony cases, the court may exclude the public for “good cause.” Md. Code Ann., Cts. & Jud. Proc. § 3-8A-13(f)(3)(ii).
In Baltimore Sun, the Court of Appeals held that a juvenile court could condition press access to a juvenile proceeding on the press’s agreement not to disclose confidential information obtained during the proceedings. 667 A.2d at 172–73. The court held that a juvenile court could not, however, constitutionally condition access to juvenile proceedings upon required publication of specific material or order the media to refrain from publishing material lawfully obtained from sources outside of the judicial proceeding. Id.
Proceedings against delinquent minors are closed to the public, unless the government proceeds by indictment (meaning that the government is prosecuting the minor as an adult). Mass. Gen. Laws. ch. 119, §§ 65, 54; see also News Grp. Boston, Inc. v. Commonwealth, 568 N.E.2d 600, 603 (Mass. 1991).
Under Minnesota statutes, juvenile delinquency hearings generally are not open to the public. Minn. Stat. § 260B.163, subd. 1; see also In re Welfare of C.D.L., 306 N.W.2d 819, 821 (Minn. 1981) (indirectly recognizing that “juvenile proceedings are closed to the public”). However, juvenile delinquency hearings are open to the public if a minor has committed an offense that would be a felony if committed by an adult and the minor was at least sixteen years old at the time of the offense. Minn. Stat. § 260B.163, subd. 1; see also Minneapolis Star Tribune v. Bush, 20 Media L. Rep. 2293 (Minn. Ct. App. 1993) (where it was undisputed that public had access to delinquency proceeding due to age and alleged crime of defendant, and public also had access to reference hearing at which court would decide whether defendant would be tried as an adult). The court may still exclude the public from the courtroom when the parties are discussing evidence relating to the minor’s psychological state or other evidence that would not be accessible to the public in an adult proceeding. Minn. Stat. § 260B.163, subd. 1
In other delinquency proceedings, the court may exercise its discretion to admit those persons who “have a direct interest in the case or in the work of the court.” Id. Victims are allowed to attend juvenile proceedings but may be excluded in certain limited circumstances. Id. Further, when a juvenile is certified to stand trial as an adult, “the prosecuting authority shall proceed with the case as if the jurisdiction of the juvenile court had never attached.” Minn. Stat. § 260B.125 subd. 7.
Generally, the records of juvenile delinquency proceedings are unavailable to the public. See Minn. Stat. 260B.171, subd. 4. The public, however, has access to the written appellate opinions of juvenile courts as well as the records of juvenile delinquency proceedings where the offender is over the age of sixteen and has committed a crime that would be a felony if committed by an adult. Id.
In In re Welfare of K, the Minnesota Supreme Court found that the statutory exclusion of the “public” from juvenile proceedings did not apply to the members of the news media. See In re Welfare of K, 269 N.W.2d 367, 370 (Minn. 1978). According to the court, the news media has “a direct interest … in the work of the court” pursuant to the statute and the trial court may exercise its discretion to allow reporters to be present during juvenile proceedings that are otherwise closed to the rest of the public. Id. at 371. Although the court in In re Welfare of K was interpreting a different section of the Minnesota statutes—Minn. Stat. § 260.155, subd. 1, which has since been repealed—the language in Minn. Stat. § 260B.163, subd. 1. is identical to the old statute and, therefore, the court’s reasoning is likely still applicable. It should also be noted, however, that In re Welfare of K did not involve a juvenile delinquency proceeding.
The Supreme Court has not recognized a right of access to juvenile proceedings or records. In an early case, In re Gault, 387 U.S. 1, 25 (1967), the Court found that “[t]here is no reason why, consistently with due process, a state cannot . . . provide . . . for the confidentiality of records of police contacts and court action relating to juveniles.” Jurisdictions vary widely in allowing access to juvenile delinquency proceedings.
In Mississippi, law enforcement agencies may publicly disclose information involving the taking of a child into custody for the commission of a delinquent act without an order from the youth court. However, the information “shall not identify the child or his address unless the information involves a child convicted as an adult.” Miss. Code Ann. § 43-21-261.
Media and electronic media coverage of delinquency or “child in need of supervision” proceedings “is strictly prohibited except upon findings of facts and conclusions of law by the court of extraordinary and compelling circumstances.” Uniform Rules of Youth Court Practice, Rule 5 (U.R.Y.C.P. 5).
In juvenile dependency proceedings pursuant to Neb. Rev. Stat. § 43-247(3)(a) (Reissue 2016), pleadings, orders, and decrees and judgments are public documents, but medical, psychiatric, and social welfare reports and the records of juvenile probation officers as they relate to individual proceedings in juvenile court are confidential. Neb. Rev. Stat. § 43-2,108 (Reissue 2016).
Delinquency proceedings are governed by NRS § 62D.010(2):
Manner for conducting proceedings; proceeding open to public; exception.
2. Except as otherwise provided in this subsection, each proceeding conducted pursuant to the provisions of this title must be open to the public. If the juvenile court determines that all or part of the proceeding must be closed to the public because the closure is in the best interests of the child or the public:
(a) The public must be excluded; and
(b) The juvenile court may order that only those persons who have a direct interest in the case may be admitted. The juvenile court may determine that a victim or any member of the victim’s family is a person who has a direct interest in the case and may be admitted.
New Mexico Court Rules require the automatic sealing of records when a petition for delinquency has been filed that does not result in an adjudication of delinquency and when a juvenile is released from legal custody and supervision. Rule 10-262(E)(1) NMRA. Further, records of a juvenile delinquent offender may be sealed pursuant to a motion filed with the court when (1) two years have elapsed since the final release of the person from legal custody and supervision; or two years have elapsed since the entry of any other judgment not involving legal custody or supervision; and (2) the person has not, within the two years immediately prior to the filing of the motion, been convicted of a felony or of a misdemeanor involving moral turpitude or been found delinquent by a court and no proceeding is pending seeking such a conviction or finding. NMSA 1978, § 32A-2-26(A).
A district court's denial of a motion to seal is reviewed for an abuse of discretion. Fred Loya Ins. Co. v. Swiech, 2018-NMCA-022, ¶ 16, 413 P.3d 530, 534. If two years have elapsed since a person was released from legal custody and supervision and the department has not received any new allegations of delinquency regarding the person, that person’s file and records automatically seal. NMSA 1978, § 32A-2-26(H); see State v. Doe, 1981-NMCA-097, ¶ 13, 96 N.M. 648, 650, 633 P.2d 1246, 1248 (“A movant for a sealing order may not obtain the benefit of the mandatory provisions of s 32-1-45(A), supra, by showing two ‘clean’ years, then committing felonies, and then seeking a sealing order more than two years after his felony convictions. In such a situation, sealing is discretionary, not mandatory.”).
Under North Carolina law, all juvenile hearings "shall be open to the public unless the court closes the hearing or part of the hearing for good cause, upon motion of a party or its own motion." N.C.G.S. 7B-2402. The statute provides that when determining whether good cause exists to close all or part of a hearing, the court should consider the circumstances, including (but not limited to) the nature of the allegations against the juvenile; the juvenile's age and maturity; the benefit to the juvenile of confidentiality; the benefit to the public of an open hearing; and the extent to which the confidentiality of the juvenile's file will be compromised by an open hearing. Id. Accordingly, North Carolina courts recognize that "[t]he decision to close a juvenile hearing to the public is one that lies within the discretion of the trial court." In re K.T.L., 177 N.C. App. 365, 370 (2006) (citing In re Potts, 14 N.C. App. 387, 391-92 (1972)).
In North Carolina, "many statutes restrict the dissemination of information about juvenile cases." In re M.B., 153 N.C. App. 278, 281 (2002). See, e.g., N.C.G.S. 7B-3001(b) ("all law enforcement records and files concerning a juvenile shall be . . . withheld from public inspection"; subject to five exceptions, the records and files may only be examined or copied by court order); N.C.G.S. 7B-3100(b) (subject to two exceptions, "[d]isclosure of information concerning any juvenile under investigation or alleged to be within the jurisdiction of the court that would reveal the identity of that juvenile is prohibited . . . ."); N.C.G.S. 7B-2102(d) (fingerprints and photographs of juveniles taken pursuant to the Juvenile Code are not public records and "shall be withheld from public inspection or examination.").
Juvenile delinquency proceedings are neither presumptively open nor presumptively closed. State ex rel. Plain Dealer Publ’g Co. v. Geauga Cty. Court of Common Pleas, 734 N.E.2d 1214, 1220 (Ohio 2000). A court can “restrict public access to delinquency proceedings if . . . the court finds that (1) there exists a reasonable and substantial basis for believing that public access could harm the child or endanger the fairness of the adjudication, (2) the potential for harm outweighs the benefits of public access, and (3) there are no reasonable alternatives to closure.” Id. See also State ex rel. Plain Dealer Publ’g Co. v. Floyd, 855 N.E.2d 35 (Ohio 2006) (holding that a judge cannot close juvenile delinquency proceedings without a hearing). Minor misdemeanor proceedings are not immediately sealable. State ex rel. Cincinnati Enquirer v. Lyons, 14 N.E.3d 989, 998 (Ohio 2014).
Pennsylvania has a statute that provides detailed rules on when juvenile delinquency hearings and records may be closed. See 42 Pa. Cons. Stat. § 6336. Juvenile delinquency hearings in Pennsylvania are closed unless the hearing is:
1. To declare a person in contempt of court.
2. Pursuant to a petition alleging delinquency where the child was 14 years old or older at the time of the alleged conduct and the alleged conduct would be a felony if done by an adult.
3. Pursuant to a petition alleging delinquency where the child was 12 years old at the time of the alleged conduct and the alleged conduct is: murder, voluntary manslaughter, aggravated assault, arson, involuntary deviate sexual intercourse, kidnapping, rape, robbery, or attempt to commit or conspiracy to commit any of the foregoing.
Even if those circumstances are present, the proceedings may be closed to the extent of any agreement between the child and the attorney for the Commonwealth. § 6336(d), (e).
Notwithstanding the above, the court may admit “any other person . . . [with] a proper interest in the proceeding . . . .” § 6336(d). The comments to the statute confirm that under this provision, the court may, in its discretion, admit members of the media into hearings that would otherwise be closed to the general public. See § 6336 cmt. If the media has access to these hearings, it should be allowed to publish whatever is learned at the hearings; an order to the contrary would constitute a prior restraint. However, the notes to this statute state: “This section as drawn permits the court in its discretion to admit news reporters. This is frequently done with the understanding that the identity of the cases observed will not be published, a procedure generally satisfactory to the news media.”
Despite this statute, the courts have noted that there is a presumptive First Amendment right of access to juvenile delinquency hearings. In re J.B., 39 A.3d 421, 434 (Pa. Super. 2012). However, that presumptive right can be overcome if there is a compelling government interest that cannot be served by any means less restrictive than closure. Id. (closure of courtroom warranted during juvenile delinquency proceeding because state had compelling interest in maintaining minor’s privacy and no less restrictive means to closure were available). Furthermore, the Superior Court has rejected the notion that a juvenile’s privacy interests are less significant in a delinquency proceeding than in a dependency proceeding: “We agree with the juvenile court that In re M.B. was not creating any ‘brightline’ distinction between the privacy interests of a juvenile in a dependency proceeding and a juvenile in a delinquency proceeding.” Id. at 429.
In addition, the Public Access Policy of the Unified Judicial System of Pennsylvania: Case Records of the Appellate and Trial Courts; No. 477 Judicial Administration requires that certain information in judicial filings concerning minors be kept confidential. Such information includes a minor’s name, date of birth, and educational records. See 204 Pa. Code § 213.81
R.I. Gen. Laws § 14-1-66 provides:
“Upon written motion by the victim of a crime or his or her attorney, the family court may, in its discretion, and upon good cause shown, divulge the name and address of the juvenile accused of committing the crime solely for the purpose of allowing the victim to commence a civil action against the juvenile and/or his or her parents to recover for damages sustained as a result of the crime[.]”
In Matter of Falstaff Brewing Corp. Re: Narragansett Brewery Fire, the Rhode Island Supreme Court recognized “the legislative intent to afford juveniles the opportunity to enter adulthood free of the stigmatization that follows criminal offenders[,]” yet upheld a request for access to a juvenile’s police file and name under R.I. Gen. Laws § 14-1-66 even though the juvenile was found not delinquent. See 637 A.2d 1047, 1050-52 (R.I. 1994). The Court held that because R.I. Gen. Laws § 14-1-66 permits the release of the juvenile’s name, the confidentiality of the juvenile is already breached and there remains “no reasonable basis” for withholding the police records describing the charged crime. Id. at 1050. The Court noted that “a finding of delinquency is not a prerequisite to release of a juvenile’s name” under the statute. Id. at 1050 n.2.
Outside such circumstances, R.I. Gen. Laws § 14-1-64 provides that:
“All police records relating to the arrest, detention, apprehension, and disposition of any juveniles shall be kept in files separate and apart from the arrest records of adults and shall be withheld from public inspection, but the police report relating to the arrest or detention of a juvenile shall be open to inspection and copying upon request . . . by the parent, guardian, or attorney of the juvenile involved. After disposition of an offense and upon execution of an appropriate release . . . records relating to the arrest, detention, apprehension and disposition of the juveniles shall be open to inspection and copying by the parent, guardian, or attorney of the juvenile involved.”
Under South Carolina’s Title 63 of the Children’s Code, the name, identity, or picture of a child under the jurisdiction of the court must not be provided to a newspaper or radio or television station unless:
(1) authorized by court order;
(2) the solicitor has petitioned the court to waive the child to circuit court;
(3) the child has been bound over to a court which would have jurisdiction of the offense if committed by an adult; or
(4) the child has been adjudicated delinquent in court for one of the following offenses:
(a) a violent crime, as defined in Section 16-1-60;
(b) grand larceny of a motor vehicle;
(c) a crime in which a weapon, as defined in Section 59-63-370, was used; or
(d) distribution or trafficking in unlawful drugs, as defined in Article 3, Chapter 53 of Title 44.
S.C. Code Ann. § 63-19-2040 (emphasis added).
Hearings are closed “unless court finds compelling reasons to require otherwise. . . .” S.D. Codified Laws § 26-7A-36. However, proceedings “shall be open,” if the juvenile is 16 and charged with a crime of violence or serious drug offense. In In re M.C., 527 N.W.2d 290 (S.D. 1995), the Supreme Court of South Dakota denied access to a juvenile hearing and transcript, finding that the newspaper seeking such access had failed to present compelling reasons to provide access. The Supreme Court also affirmed closure of a juvenile proceeding in In re Hughes County, 452 N.W.2d 128, 133 (S.D.1990).
Adjudication hearings regarding delinquency are governed by the Juvenile Justice Code. See Tex. Fam. Code Ann. § 54.03(a) (“A child may be found to have engaged in delinquent conduct or conduct indicating a need for supervision only after an adjudication hearing conducted in accordance with the provisions of this section.”). Courts have a duty to open delinquency hearings involving juveniles who are fourteen years or older to the public unless good cause is shown that the proceedings should be closed. See In re Fort Worth Star-Telegram, 441 S.W.3d 847, 854–55 (Tex. App.—Fort Worth 2014, orig. proceeding) (construing Tex. Fam. Code Ann. § 54.08(a)). As in other contexts, Texas courts require “good cause” to be shown on the record. See In re Fort Worth Star-Telegram, 441 S.W.3d at 854–55. In adjudication hearings involving juveniles who are under fourteen years old, courts are required to keep hearings closed to the public unless the interests of the child or the public would be better served by an open hearing. See Tex. Fam. Code Ann. § 54.08(c). There are no published cases explaining when the public would be better served in the context of this statute. Transcripts or recordings of public hearings are not confidential under the Texas Family Code. See In re Fort Worth Star-Telegram, 441 S.W.3d at 859–60 (citing Tex. Fam. Code Ann. §§ 54.08(a), 58.005, 58.007).
The Utah Court of Appeals has held that, “[u]nlike criminal trials, juvenile proceedings have not been historically open.” Kearns-Tribune Corp. v. Hornak, 917 P.2d 79, 86 (Utah Ct. App. 1996) (citing In re N.H.B., 769 P.2d 844, 849 (Utah Ct. App. 1989)). “[P]ublic access does not play as significant a role in the proper functioning of the juvenile justice system as it does in the adult system.” Id. “In contrast to adult criminal procedures, juvenile court proceedings do not involve criminal convictions, but are regarded as civil proceedings.” Id. “Because juvenile proceedings are not intended to punish, public access would not serve as a check against unjust conviction and the undeserved taint of criminality.” Id. “Indeed, confidentiality of juvenile proceedings is designed to avoid such taint” and “furthers society’s interest in rehabilitation of youthful offenders and their integration as law-abiding adults.” Id. Because “[p]ublic access to juvenile proceedings would detrimentally affect those purposes of the juvenile justice system,” the Utah Supreme Court has held “that the state has a compelling interest in maintaining the confidentiality of juvenile court proceedings which outweighs the media's right of access." Id.
“In delinquency cases[,] the court shall admit all persons who have a direct interest in the case and may admit persons requested by the parent or legal guardian to be present.” Id.§ 78A-6-114(1)(b). Furthermore, “[i]n delinquency cases in which the minor charged is 14 years of age or older, the court shall admit any person unless the hearing is closed by the court upon findings on the record for good cause” if the minor is charged with either “an offense which would be a felony if committed by an adult” or “an offense that would be a class A or B misdemeanor if committed by an adult, and the minor has been previously charged with an offense which would be a misdemeanor or felony if committed by an adult.” § 78A-6-114(c); accord, e.g., In re C.S., No. 1131061 (Utah 3d Dist. Juv. Ct. Mar. 22, 2017) (allowing access to minor’s certification hearing under Section 78A-6-114(c)); In re J.C., No. 1099751 (Utah 3d Dist. Juv. Ct. Mar. 21, 2017) (allowing access to juvenile hearings under Section 78A-6-114(c) and to public juvenile records enumerated in Utah Code Jud. Admin 4-202.02(2)(II)); In re E.A., 1136112 (Utah 3d Dist. Juv. Ct. Nov. 30, 2016) (all hearings, including minor’s certification hearing, were subject to presumptive right of access under Section 78A-6-114(c) and presumptive right of electronic media coverage under Utah Code Jud. Admin. 4-401.01).
In Vermont, all juvenile court proceedings, including delinquency proceedings, are confidential. See 33 V.S.A. § 5110(a); see also In re J. S., 140 Vt. 458, 464, 438 A.2d 1125, 1127 (Vt. 1981) (“Far from a tradition of openness, juvenile proceedings are almost invariably closed.”). The public does not have access to juvenile court files or juvenile court hearings. See 33 V.S.A. § 5110(b); 33 V.S.A. § 5117(a); Vt. Pub. Acc. Ct. Rec. Rule 6(4) (providing an exception under the Vermont Rules for Public Access to Court Records for “records of the family court in juvenile proceedings”). The Vermont Supreme Court has held that “juvenile proceedings are not criminal prosecutions, a fact which makes at least some of the First Amendment purposes served by open criminal trials inapplicable.” In re J. S., 140 Vt. at 464, 438 A.2d at 1127 (finding need for confidentiality in juvenile proceedings overrides any First Amendment goals which public access might serve).
Proceedings in Virginia’s juvenile and domestic relations (“JDR”) courts are generally closed to the public. However, proceedings in cases involving an adult charged with a crime and hearings held on a petition or warrant alleging that a juvenile fourteen years of age or older committed an offense which would be a felony if committed by an adult “shall be open,” and may only be closed “for good cause shown.” See Va. Code § 16.1-302(C). The statute distinguishes between proceedings and hearings, indicating that as used in § 16.1-302(C), the term “proceedings” includes court records. This interpretation is supported by a separate statutory provision providing that law enforcement records with respect to juveniles “shall not be open to public inspection nor their contents disclosed to the public unless a juvenile 14 years of age or older is charged with a violent juvenile felony.” Va. Code § 16.1-301(A).
The Virginia Supreme Court has not yet defined good cause under this statute. In practice, the existence of good cause usually turns on whether the party seeking closure or sealing has identified an interest that is unique to the particular proceeding and not all juvenile proceedings, and whether the interest can be protected by other reasonable prophylactic measures, such as voir dire and partial closure or sealing.
Delinquency involves acts that would be criminal under state law or municipal ordinance if an adult committed them. W.Va. Code § 49-1-202. Juvenile jurisdiction for a delinquency offense may continue to age 21. W.Va. Code § 49- 4-701(f)(1). Juvenile records are not public records, and juvenile hearings are not public. Juvenile proceedings can be transferred to adult criminal jurisdiction under W.Va. Code § 49-4-710 and Rule 20, Rules of Juvenile Procedure. When the transfer to adult status to occurs, hearings and records are then public. Rule 10, Rules of Juvenile Procedure, http://www.courtswv.gov/legal-community/court-rules/juvenile-procedure/juvenile-rules1-26.html#rule10.
See Wis. Stat. § 938.299(1)(a):
Except as provided in par. (ar), the general public shall be excluded from hearings under this chapter unless a public fact-finding hearing is demanded by a juvenile through his or her counsel. … If a public hearing is not held, only the parties, their counsel, witnesses, a representative of the news media who wishes to attend the hearing for the purpose of reporting news without revealing the identity of the juvenile involved and other persons requested by a party and approved by the court may be present.
See State ex rel. E.R. v. Flynn, 88 Wis. 2d 37, 276 N.W.2d 313 (Wis. App. 1979) (recognizing news media’s right to attend hearing involving minor before the passage of the statute).