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).
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)).
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.
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).
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.
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 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).
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.”).
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
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).