A. In general
The Tenth Circuit has acknowledged “that a common law right exists to inspect and copy judicial records.” United States v. Hickey, 767 F.2d 705 (10th Cir. 1985). The court explained that this common law right “is an important aspect of the overriding concern with preserving the integrity of the law enforcement and judicial processes.” Id. But this right, however important, is not absolute. Id. “[A] court, in its discretion, may seal documents ‘if the public’s right of access is outweighed by competing interests.’” Id. (quoting In re Knight Publ’g Co., 743 F.2d 231, 235 (4th Cir. 1984)).
In cases involving access to documents in criminal cases, courts will inquire whether the documents at issue are "judicial documents" in addition to querying whether there is a right of access under the common law and the First Amendment.
United States v. Graham, 257 F.3d 143, 147 (2d Cir. 2001) provides an example. In Graham, Defendants indicted on drug trafficking charges moved to seal courtroom during detention hearings to prevent dissemination of audiotapes and videotapes to be played by government. Judge Katzman, for the Second Circuit, held inter alia that the tapes were "judicial records" subject to the presumption of access, that there was a strong presumption favoring access, and that presumption was not overcome by the fact that the tapes would enhance public awareness of the case. In support of its holding, the court stated that its "approach with respect to the common law right in the criminal context is shaped both by our responsibility to ensure that criminal defendants are not deprived of their right to a fair trial and by our recognition that “[w]hat transpires in the court room is public property." Id. at 149; see also Application of Nat'l Broad. Co., Inc., 635 F.2d 945 (2d Cir. 1980) (affirming district court finding that three television networks could make copies of and televise videotapes entered into evidence during criminal prosecution.)
The right of access is not, however, absolute. Recently, in United States v. Armstrong, 185 F. Supp. 3d 332 (E.D.N.Y. 2016), the District Court for the Eastern District of New York held that the sealing of two documents related to sentencing in a criminal trial was narrowly tailored to protect the government's compelling interest. The court reasoned that sealing was justified given the government's compelling interest to secure current and future cooperation from defendants. Id. at 337-338.
“It is well settled that the public and press have a qualified right of access to judicial documents and records filed in civil and criminal proceedings.” Doe v. Pub. Citizen, 749 F.3d 246, 265 (4th Cir. 2014); see also United States v. Anderson, No. 1:11-cr-231, 2015 WL 11111065, *1 (E.D. Va. Mar. 16, 2015) (“There is a fundamental public policy supporting open access to court records, particularly for criminal proceedings.”) (citations omitted), aff'd, 607 F. App'x 314 (4th Cir. 2015). “Publicity of such records, of course, is necessary in the long run so that the public can judge the product of the courts in a given case.” Columbus-Am. Discovery Grp. v. Atl. Mut. Ins. Co., 203 F.3d 291, 303 (4th Cir. 2000).
A district court in the Fourth Circuit has suggested that a First Amendment right of access to judicial records in criminal matters arises after indictment but before arrest. See In re Application of Reporters Committee for Freedom of the Press To Unseal Criminal Prosecution of Julian Assange, No. 1:18-mc-37, 2019 WL 366869, *4 (E.D. Va. Jan. 30, 2019).
The mere filing of a document does not trigger the public’s right of access. See In re Policy Mgmt. Sys., 67 F.3d 296 (4th Cir. 1995) (per curiam) (citing United States v. Amodeo, 44 F.3d 141, 145 (2d Cir.1995)). Rather, for a right of access to a document to exist under either the First Amendment or the common law, the document must be a “judicial record.” In re U.S. for an Order Pursuant to 18 U.S.C. Section 2703(D), 707 F.3d 283, 290 (4th Cir. 2013). A document is a judicial record if it plays a role in the adjudicative process or adjudicates substantive rights. Id.; see also Rushford v. New Yorker Magazine, Inc., 846 F.2d 249, 252 (4th Cir. 1988); Baltimore Sun Co. v. Goetz, 886 F.2d 60, 63–64 (4th Cir. 1989) (search warrant affidavits are judicial records). Assuming the document is a judicial record, the extent of the public’s right of access (common law vs. First Amendment) depends on the circumstances in which the record is submitted. See Rushford, 846 F.2d at 252; Baltimore Sun Co., 886 F.2d at 64.
The fact that both the defendant and the prosecuting attorney desire sealing is not dispositive. “The court is not obliged to indulge the requests of the trial participants but must make an independent judgment balancing all the interests.” Matter of Application & Affidavit for a Search Warrant, 923 F.2d 324, 331 (4th Cir. 1991).
The Fifth Circuit has recognized a common-law right to inspect and copy judicial records, but that right is not absolute and will generally only apply to “original records.” Pratt v. Dennis, 511 F.3d 483, 485 (5th Cir. 2007). Audiotapes which constitute original records may be obtained, but back-up tapes of a stenographer’s transcript do not constitute original records and may only be obtained if there is reason to doubt the accuracy of the stenographer’s transcript. Id.
“[T]he press' right of access to documents submitted for use in a hearing must be considered separately from the press' right to attend the hearing itself.” United States v. Corbitt, 879 F.2d 224, 228-29 (7th Cir. 1989) (“Whether or not the public and the press have a first amendment right of access to sentencing hearings, we must determine independently whether there is a right to disclosure of presentence reports submitted at such hearings”).
Under Alabama law, criminal court records are subject to the same federal constitutional rights of access as criminal proceedings; furthermore, because the closure of criminal proceedings and the sealing of court records are related matters implicating similar interests, Alabama courts apply the same standard of review to both issues. Ex parte Birmingham News Co., 624 So. 2d 1117, 1126 (Ala. Crim. App. 1993); see Ex parte Consol. Publ’g Co., 601 So. 2d 423, 433–34 (Ala. 1992). Records related to grand jury proceedings and juvenile proceedings, however, are presumptively closed. See Ala. Code § 12-16-216 (prohibiting disclosure of information related to grand jury proceedings); Ala. Code § 15-19-7(b) (“The fingerprints and photographs and other records of a person adjudged a youthful offender shall not be open to public inspection; provided, however, that the court may, in its discretion, permit the inspection of papers or records.”).
Generally, access to criminal court records is governed by Arizona Supreme Court Rule 123. Under Rule 123(c)(1), the Arizona Supreme Court recognizes that “[t]his state has always favored open government and an informed citizenry. In the tradition, the records in all courts and administrative offices of the Judicial Department of the State of Arizona are presumed to be open to any member of the public for inspection or to obtain copies at all times during regular office hours at the office having custody of the records.” Additionally, Rule 123(d)(2)(C) explains that any material that is not specifically closed “in the adult criminal case files maintained by the clerk of the court is open to the public, unless prohibited by law or sealed by court order.”
Rule 123(c)(1) clarifies, however, that “access to some court records may be restricted or expanded in accordance with the provision of this rule” if there are “countervailing interests of confidentiality, privacy or the best interests of the state . . . .”
In addition to Rule 123, access to certain criminal records may fall within the Arizona Public Records Law, Ariz. Rev. Stat. § 39-121, et seq. Subject to certain limitations regarding victim information or highly sensitive material (graphic crime scene photographs, for example), many criminal records may be obtained from law enforcement agencies through the Public Records Law.
In 2007, the Supreme Court of Arkansas adopted an administrative order that outlines the state’s policy on court record access, with a purpose to promote accessibility to court records. Ark. Sup. Ct. Admin. Order No. 19. Criminal records may be excluded from public access if they are sealed or expunged pursuant to Ark. Code Ann. §§ 16-90-901, et seq. A reporter may make a written request for such records if they can demonstrate that “reasonable circumstances exist that require deviation from the general provisions of the order” or “the public interest in disclosure outweighs the harm of disclosure.” Ark. Sup. Ct. Admin. Order No. 19(VIII)(A)(1-2).
The Colorado Supreme Court refused to recognize “a constitutional right of access to any and all [criminal] court records in cases involving public concern.” People v. Owens, 2018 CO 55, ¶ 7, 420 P.3d 257, 258 (Colo. 2018). “[W]e have never recognized any such constitutional right—whether under the First Amendment [to the U.S. Constitution] or Article II, section 10 of the Colorado Constitution.” Id. ¶ 8. The Colorado Supreme Court stated that there is “no ‘absolute right to examine’ court records” but “inspection may be permitted ‘at the discretion of the court’” and in accordance with “laws and administrative procedures currently in place—including, but not limited to, the Colorado Criminal Justice Records Act, §§ 24-72-301 to -309, C.R.S. (2017)—that are predicated upon the absence of a constitutionally guaranteed right of access to criminal justice records.” Id. ¶¶ 9–10. The court noted “the absence of any indication from the nation’s high court that access to all criminal justice records is a constitutionally guaranteed right belonging to the public at large” and found “no compelling reason to interpret our state constitution as guaranteeing such a sweeping—and previously unrecognized—right of unfettered access to criminal justice records.” Id. ¶ 9.
The Colorado Criminal Justice Records Act, C.R.S. § 24-72-301, et seq. (“CCJRA”), generally provides for and favors access to certain criminal records but gives the custodian of most criminal justice records considerable discretion to limit access.
The CCJRA distinguishes between records of “official actions” and other “criminal justice records.” An “official action” includes “an arrest; indictment; charging by information; disposition; pretrial or posttrial release from custody; judicial determination of mental or physical condition; decision to grant, order, or terminate probation, parole, or participation in correctional or rehabilitative programs; and any decision to formally discipline, reclassify, or relocate any person under criminal sentence.” C.R.S. § 24-72-302(7). “Criminal justice records” are “all books, papers, cards, photographs, tapes, recordings, or other documentary materials, regardless of form or characteristics, that are made, maintained, or kept by any criminal justice agency in the state for use in the exercise of functions required or authorized by law or administrative rule . . . .” C.R.S. § 24-72-302(4).
There is a strong presumption of openness for records “official actions,” while the openness of other criminal justice records is largely discretionary. Madrigal v. City of Aurora, 2014 COA 67, ¶ 9, 349 P.3d 297, 299 (Colo. App. 2014) (citing C.R.S. §§ 24-72-303, 0304, -305). Freedom Colo. Info., Inc. v. El Paso Cnty. Sheriff’s Dept., 196 P.3d 892, 897 (Colo. 2008) (“When a request is made to inspect a particular criminal justice record that is not a record of an ‘official action,’ the decision whether to grant the request is consigned to the exercise of the custodian’s sound discretion under sections 24-72-304 and -305, C.R.S. (2008).”).
Custodians of records of both official actions and other criminal justice records may “make such rules and regulations with reference to the inspection of such records as are reasonably necessary for the protection of such records and the prevention of unnecessary interference with the regular discharge of the duties of the custodian or his office.” C.R.S. § 24-72-303(1); C.R.S. § 24-72-304(1). However, the Colorado Supreme Court has interpreted the CCJRA to circumscribe a custodian’s discretion regarding disclosure of records of “official actions.” People v. Thompson, 181 P.3d 1143, 1145–46 (Colo. 2008) (“[A] record of official action must be available for public inspection unless one of the two exceptions applies: (1) non-disclosure is required by the CCJRA, or (2) non-disclosure is required by other law. Consequently, the CCJRA does not grant any criminal justice agency, including a court, any discretion as to whether to disclose a record of official action in its entirety, in part, or not at all.”) (citations omitted).
The CCJRA prohibits the disclosure of certain information, including the names or identifying information of sexual assault or child victims (seeC.R.S. § 24-72-304), and permits denial of access on “public interest” grounds (see C.R.S. § 24-72-305(1.5) & (5); see also Madrigal, 2014 COA 67, ¶ 10, 349 P.3d at 299.
Chief Justice Directive 05-01, as amended, contains the Colorado Judicial Department’s Public Access to Court Records policy (“Public Access Policy”) (pdf), which governs access to court records generally. “Court records” include “any document, information, audio or video recording, or other item that is collected, received, and maintained by a court” or by a probation department, that is related to a judicial proceeding, defendant, or probationer. Generally, the Public Access Policy permits public access to court records, except as prohibited by federal or state statute, court rule, court order, or the Public Access Policy itself. (Section 4.10; Section 4.60.) Section 4.60 of the Public Access Policy lists several case classes, case types, and court records that are not accessible to the public, absent a court order. The Public Access Policy identifies the “Clerks of Court” as the official custodians of all case-related documents and information.
If a custodian denies access to a criminal justice record, the applicant may request a “written statement of the grounds for the denial,” and the custodian must produce a response within 72 hours, citing the law or regulation under which access is denied or explaining the general nature of the public interest to be protected by the denial. C.R.S. § 24-72-305(6). The applicant may also apply to the district court where the record is found seeking an order directing the custodian to show cause why the custodian should not permit the inspection of the record. C.R.S. § 24-72-305(7). Unless the court “finds that the denial of inspection was proper,” the court “shall order the custodian to permit such inspection,” and, in certain cases, may award the applicant court costs, attorney fees, and a daily penalty for each day inspection was denied. Id. When reviewing discretionary denials of access to ordinary criminal justice records, courts analyze whether the custodian abused his or her discretion, which makes it difficult for an applicant reverse a decision of a custodian through the courts. See Madrigal, 2014 COA 67, ¶¶ 12–14, 349 P.3d at 300.
In the high-profile criminal trial of the Aurora movie theater shooter, People v. Holmes, a Colorado trial court declined to unseal “affidavits of probable cause, subpoenas, arrest warrants, [and] search warrants,” as “contrary to the public interest” under the CCJRA. See Order Re: Motion to Unseal Court File, People v. Holmes, No. 12CR1522, at *7 (Dist. Court, Cnty. of Arapahoe Aug. 13, 2012) (pdf). The court did unseal the register of actions and many pretrial motions and orders, upon a motion of a media coalition. Id. at **7–9.
In Georgia, the public has a presumptive right of access to all court records and that right may be overridden only “in cases of clear necessity.” See Atlanta Journal v. Long, 258 Ga. 410, 413 (1988).
The state’s court rules provide that: “all court records are public and are to be available for public inspection unless public access is limited by law or by the procedure set forth [in the Rule].” Pursuant to the rule, a party seeking to have presumptively public court records sealed “has the burden of overcoming this presumption, by demonstrating that ‘the harm otherwise resulting to [his privacy] clearly outweighs the public interest.’” Atlanta Journal v. Long, 258 Ga. 410, 414 (1988) (quoting Uniform Superior Court Rule 21.2).
In State v. Turpen, 147 Idaho 869, 216 P.3d 627 (2009), the Idaho Supreme Court analyzed Idaho Court Administrative Rule 32 and recognized that the public has a “right to examine and copy the judicial department’s declarations of law and public policy and to examine and copy the records of all proceedings open to the public.” Id. at 871, 216 P.3d at 629. The Court then went on to provide that sealing orders should only be issued on a case-by-case basis after a hearing and the issuance of specific factual findings (as provided in I.C.A.R. 32(i)) made “as to whether the individual’s interest in privacy or whether the interest in public disclosure predominates.” Id. If the court finds that an individual’s privacy interests predominate, “it must fashion the least restrictive exception from disclosure consistent with privacy interests.” Id. Finally, “[t]he decision of the trial courts will be subject to review for abuse of discretion.” Id. at 872, 216 P.3d at 630; see also State v. Gurney, 152 Idaho 502, 272 P.3d 474 (2012) (district court’s denial of request, pursuant to I.C.A.R. 32, to expunge criminal record because of “economic harm” caused by existence of criminal record to “rehabilitated” felon was affirmed my Idaho Supreme Court); State v. Collins, 157 Idaho 857, 860, 340 P.3d 1173, 1776 (Idaho Ct. App. 2014) (“A party seeking to seal [a court] record [under I.C.A.R. 32(i)] bears the burden of demonstrating that the party’s privacy interest predominates over the public interest in disclosure”); State v. Doe, 155 Idaho 99, 106, 305 P.3d 543, 550 (Idaho Ct. App. 2013) (I.C.A.R. 32 does not allow records to be expunged, it only provides a mechanism to seal records); Doe v. State, 153 Idaho 685, 690, 290 P.3d 1277, 1282 (Idaho Ct. App. 2013) (I.C.A.R. 32(i) “gives the court discretion to consider the many types of economic or financial loss that may be reasonably asserted as a claimed justification for sealing court records, including financial harm asserted by those convicted of crimes. . . . Because the public interest in access to criminal court records is obviously weighty, we surmise it would be an exceptional circumstance where a custodian judge would find that interest exceeded by a convicted person’s assertion of economic harm flowing from the conviction.”).
The presumption that criminal court records are open, established in Kansas City Star Co. v. Fossey, 630 P.2d 1176, 1182 (Kan. 1981), was reaffirmed in Wichita Eagle Beacon Co. v. Owens, 27 P.3d 881 (Kan. 2001). As the Kansas Supreme Court said,
"In Fossey, we held that a trial court . . . may seal the record of . . . proceedings. However, such closure is permitted only if 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 the prejudicial effect of such information on trial fairness cannot be avoided by any reasonable alternative means."
Owens, 27 P.3d 881, 883.
The U.S. Court of Appeals for the Tenth Circuit, whose jurisdiction includes Kansas, recognized a First Amendment access right to court records, although only in a limited way. A district judge in Colorado had sealed records in connection with the criminal proceedings that followed the 1995 bombing of the Murrah Federal Building in Oklahoma City, Oklahoma. In a 1997 case, United States v. McVeigh, the Tenth Circuit noted that, under the common law, court records “are presumptively available to the public, but may be sealed if the right to access is outweighed by the interests favoring nondisclosure.” McVeigh, 119 F.3d 806, 811 (10th Cir. 1997) (citing Nixon v. Warner Commc’ns, Inc., 435 U.S. 589, 602 (1978)). The common law, it also was noted, provides that a judge’s decision to seal records may be reviewed for abuse of discretion.
Before sealing the records in the Oklahoma City bombing case, however, the Colorado district judge had applied a First Amendment standard rather than the common law. The Tenth Circuit observed that, in a number of other federal courts, “the logic of Press-Enterprise II[, 478 U.S. 1 (1986),] extends to at least some categories of court documents and records, such that the First Amendment balancing test there articulated should be applied before such qualifying documents and records can be sealed.” McVeigh, 119 F.3d at 811. The Tenth Circuit declined to hold that the media generally have a First Amendment-based right of access to court records. Nevertheless, in its review of the media’s request for records in the Oklahoma City bombing case, the court assumed that access in that specific case was “governed by the analysis articulated in Press-Enterprise II.” McVeigh, 119 F.3d at 812. The court explained:
"In determining whether a particular type of document is included within the First Amendment right of access, courts engage in a two-pronged inquiry in which they ask: (1) whether the document is one which has historically been open to inspection by the press and the public; and (2) 'whether public access plays a significant positive role in the functioning of the particular process in question.' This two-part inquiry is referred to as the test of 'experience and logic.'
If the qualified First Amendment right of access is found to apply to the documents under the 'experience and logic' test, [a] court may then seal the documents only if 'closure is essential to preserve higher values and is necessary to serve that interest.'”
McVeigh, 119 F.3d at 812–13.
The Tenth Circuit upheld the district judge’s sealing of the records, concluding that when records are closed to the extent permissible under the First Amendment, the closure necessarily also satisfies the common law standard.
The Supreme Court has recognized a common law right “to inspect and copy public records and documents, including judicial records and documents.” Nixon v. Warner Commc’ns, Inc., 435 U.S. 589, 597 (1978) (footnote omitted).
The Mississippi Supreme Court agreed that there is a common law right and has ruled that there is no constitutional right of access to public records, and that no one has rights under the Public Records Act that would deprive the criminally accused of his right to a fair trial. Miss. Publishers Corp. v. Coleman, 515 So.2d 1163, 1167 (Miss. 1987) (“The petitioners are simply wrong in their claim that the right of access to public records is of constitutional dimensions. It is a right derived from the common law and from applicable statutes.”).
The court established the requirements for closing a court file or proceeding in Gannett River States Pub. Co. v. Hand, 571 So. 2d. 941, 943 (Miss. 1990). The court established that notice must be given to the media and the public at least 24 hours before a hearing on the closure. To provide adequate notice, a motion for closure must be docketed in the court clerk’s office. Id. at 945. At the hearing, the party seeking closure must: “advance an overriding interest that is likely to be prejudiced; the closure order must be no broader than necessary to protect that interest; the trial court must consider reasonable alternatives to closing the proceedings, and it must make findings adequate to support the closure.” Id. The press also must be allowed to present its argument, if any, against closure. Id. A court that grants closure must explain the alternatives it considered and why they were rejected. Id.
A transcript of the closure hearing should be made public. Id. If a petition for extraordinary relief is filed, the petition should be accompanied by the transcript, the court's findings of fact and conclusions of law, and the evidence adduced at the closure hearing. Id.
Pursuant to Rule 5-123 NMRA, “court records are subject to public access unless sealed by order of the court.” The following court records shall be automatically sealed without motion or order of the court:
“(a) grand jury proceedings in which a no bill has been filed under Section 31-6-5 NMSA 1978;
(b) proceedings for testing commenced under Section 24-2B-5.1 NMSA 1978;
(c) proceedings commenced upon an application for an order for wiretapping, eavesdropping or the interception of any wire or oral communication under Section 30-12-3 NMSA 1978;
(d) pre-indictment proceedings commenced under Chapter 31, Article 6 NMSA 1978 or Rule 5-302A NMRA;
(e) proceedings commenced to remove a firearm-related disability under Section 34-9-19(D) NMSA 1978, subject to the firearm-related reporting requirements in Section 34-9-19 NMSA 1978.”
In proceedings to determine competency under NMSA 1978, Chapter 31, Article 9, the following records shall be sealed automatically without order of the court:
“(a) A motion for competency evaluation and responsive pleading;
(b) Any court record that contains the details of a competency, forensic, psychiatric, medical, or psychological assessment or evaluation;
(c) Any court record that includes the details of a treatment plan; and
(d) Any court record that includes an assessment of the defendant's dangerousness under Section 31-9-1.2 NMSA 1978 or an assessment of the defendant's risk under Section 31-9-1.6 NMSA 1978.”
The Pennsylvania Supreme Court has recognized the existence of a common law and First Amendment right to access judicial records. See, e.g., Commonwealth v. Upshur, 924 A.2d 642, 647-48 (Pa. 2007); Commonwealth v. Curley, --- A.3d ----, 2018 Pa. Super. LEXIS 599, at *8-9 (June 4, 2018); Commonwealth v. Selenski, 996 A.2d 494, 496-97 (Pa. Super. 2010); see also Commonwealth v. Fenstermaker, 530 A.2d 414, 419 (Pa. 1987). This right of access “provides an important check on the criminal justice system, ensuring not only the fair execution of justice, but also increasing public confidence and understanding.” Upshur, 924 A.2d at 647.
A public judicial record or document includes, but is not limited to, “any item that is filed with the court as part of the permanent record of a case and relied on in the course of judicial decision-making.” Upshur, 924 A.2d at 648. “Some items will fit squarely within the category of public judicial records and documents while others will just as clearly be excluded. For example, transcripts of bench conferences held in camera and notes maintained by the prosecutor and defense counsel during trial are not considered public judicial documents.” Id.
The Supreme Court has explained that “the status of materials as ‘part of the record’ or ‘filed with the court,’ though relevant, is not necessarily dispositive when deciding whether an item is a public judicial record or document.” Id. at 650. Rather, the Supreme Court has noted that Pennsylvania courts will give “weight to the character of the materials sought in terms of whether they are the sort upon which a judge can base a decision.” Compare id. at 648 (ruling that trial court did not abuse its discretion when it permitted a television station access to an audiotape played at a preliminary hearing, finding that the tape formed the basis of the judge’s decision as to whether the charges will be held for trial and was “clearly the type of material upon which a judicial decision is based”), with Robinson v. Montgomery Cty. Court Reporter, 2009 Pa. Commw. Unpub. LEXIS 467, at *11 (Oct. 1, 2009) (no right of access to audio recordings of homicide trial because recordings were merely created to aid court reporter in composition of official transcript, and were “neither filed with the trial court as part of the official record of a case, nor [ ] relied upon by the court in the course of judicial decision-making.”). “[T]he level of the reliance placed on a document in the judicial decision-making process is a critical factor in making th[e] determination” whether a document is a judicial record. Commonwealth v. Martinez, 917 A.2d 856, 860 (Pa. Super. 2007). The Pennsylvania Superior Court, however, has held that when a pretrial document is submitted to a judge, but is not docketed, “formally filed with the court, or required by any rule of criminal procedure,” the record is not considered a “‘public judicial document’ subject to the right of First Amendment or common law access.” Curley, 2018 Pa. Super. LEXIS 599, at *23-24 (no right to access letters sent to judge with proffers of witness testimony in connection with issue of attorney-client relationship, when records were never docketed or filed and witnesses did not testify).
The right to access judicial records “has been broadly construed, though the right has not been held to be absolute.” Fenstermaker, 530 A.2d at 420 (citing Nixon v. Warner Commc’ns, Inc., 435 U.S. 589, 597-99 (1978)). Access to the document or record may be denied if “the presumption of openness attached to a public judicial document is outweighed by circumstances warranting closure of the document to public inspection.” Id. When the constitutional right is implicated, a record can be sealed only for a “compelling interest.” Curley, 2018 Pa. Super. LEXIS 599, at *7-8.
The Vermont Rules for Public Access to Court Records (the “Rules”) govern the rights of access by the public to judicial records, including criminal court records. See Vt. Pub. Acc. Ct. Rec. Rule 1; see also State v. Whitney, 2005 VT 102, ¶ 9, 885 A.2d 1200, 1203 (Vt. 2005). These Rules “provide a comprehensive policy on public access to Judicial Branch records . . . [and] [t]hey shall be liberally construed in order to implement the policies therein.” Vt. Pub. Acc. Ct. Rec. Rule 1.
Recently, the Vermont Supreme Court made explicit that “[r]equests to courts for public access to case records should be evaluated under the Vermont Rules for Public Access to Court Records,” not the Vermont Public Records Act. In re Vsp-Tk/1-16-18 Shooting Gray TV, 2019 VT 47¶ 13 (July 19, 2019)
The general policy in Vermont with respect to public access to court records is that such records “shall be open to any member of the public for inspection or to obtain copies.” Vt. Pub. Acc. Ct. Rec. Rule 4 (emphasis added). Specifically, the Rules provide that “[t]he public shall have access to all case records, in accordance with the provisions of this rule, except as provided in subsection (b) of this section.” Vt. Pub. Acc. Ct. Rec. Rule 6(a) (emphasis added); see also In re Vsp-Tk/1-16-18 Shooting Gray TV, 2019 VT at ¶ 22.
see also In re Vsp-Tk/1-16-18 Shooting Gray TV, 2019 VT 47 ¶¶ 31-32 (July 19, 2019) (recognizing standard applicable to sealing decisions regarding search warrants and extending them to inquest materials). Recently, the Vermont Supreme Court rejected the State’s attempt to infer a categorical prohibition against disclosure of records relating to inquest proceedings because they are similar to other enumerated exceptions in the Rules regarding search warrants or affidavits of probable cause. In re Vsp-Tk/1-16-18 Shooting Gray TV, 2019 VT at ¶¶ 23-25.warrants
In 2019, the Vermont Supreme Court reaffirmed that under the Rules “all case records are public records presumptively subject to public disclosure unless an exception applies.” In re Vsp-Tk/1-16-18 Shooting Gray TV, 2019 VT 47 ¶ 9 (July 19, 2019). There, the State conceded that none of the exceptions expressly applied and the Court rejected the State’s attempt to infer a categorical prohibition against disclosure of records relating to inquest proceedings because they are similar to other enumerated exceptions in the Rules regarding search warrants or affidavits of probable cause. Id. at ¶¶ 23-25.
The Reporter’s Notes indicate that the Rules “do not govern access to court proceedings, a subject not now covered by a comprehensive rule or statute” . . . but “[i]f the public has access to a proceeding, it has access to a record of the proceeding, unless that record is specifically exempted from disclosure.” Vt. Pub. Acc. Ct. Rec. Rule 1.
See Wis. Stat. § 19.35(1)(a):
"Except as otherwise provided by law, any requester has a right to inspect any record. Substantive common law principles construing the right to inspect, copy or receive copies of records shall remain in effect."
See Wis. Stat. § 19.32(1): "'Authority' means any of the following having custody of a record: … any court of law …."