A. In general
“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 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 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 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.