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”).
The Supreme Court has stated that “the courts of this country recognize a general 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). The Eighth Circuit recognizes a “common law presumption in favor of public access to judicial records,” but it has “rejected the strong presumption standard adopted by some circuits,” and gives deference to the trial court’s findings. United States v. McDougal, 103 F.3d 651 (8th Cir. 1996) (emphasis in original).
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).
In NBC Subsidiary (KNBC-TV), Inc. v. Superior Court, 20 Cal. 4th 1178, 980 P.2d 337, 86 Cal. Rptr. 2d 778 (1999), the California Supreme Court held that California Code of Civil Procedure § 124 establishes a presumption of access to court proceedings. Its analysis was driven largely by U.S. Supreme Court cases finding a First Amendment right of access to criminal proceedings. Thus, its analysis applies to criminal court records. Appendix 1 of the Trial Court Records Manual contains a complete list of court records designated confidential by statute or rule. See id., available at www.courts.ca.gov/documents/trial-court-records-manual.pdf. See also Weaver v. Superior Court, 224 Cal. App. 4th 746, 749-750, 168 Cal. Rptr. 3d 864 (2014) (in discussion of California Public Records Act, court held that district attorney’s copies of judicial records, including charging documents, were public records).
California Rules of Court, Rules 2.550 and 2.551, set forth the procedures to obtain a sealing order. Courts may seal records only if they hold a hearing and expressly find, on the record or in a written order, that sealing is warranted under the NBC Subsidiary four-factor test. 20 Cal. 4th at 1218. The parties’ agreement to seal is insufficient. See H.B. Fuller Co. v. Doe, 151 Cal. App. 4th 879, 891, 60 Cal. Rptr. 3d 501 (2007) (reversing sealing order based on parties’ stipulation). See also In re Marriage of Nicholas, 186 Cal. App. 4th 1566, 1568-1569, 113 Cal. Rptr. 3d 629 (2010) (constitutional right of access applies to family court cases; restrictions to protect children’s privacy must meet “overriding interest” standard); In re Marriage of Burkle, 135 Cal. App. 4th 1045, 1063, 37 Cal. Rptr. 3d 805 (2006) (same). But see In re Marriage of Candiotti, 34 Cal. App. 4th 718, 722, 724, 34 Cal. Rptr. 2d 299 (1995) (sealing personal information, driving records and criminal history where dissemination would harm children); Oiye v. Fox, 211 Cal. App. 4th 1036, 1068-1070, 151 Cal. Rptr. 3d 65 (2012) (sealing medical records of alleged victim of sexual molestation).
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.
District of Columbia
The D.C. Courts’ Case Management Branch handles requests for access to criminal court records.
Access to criminal court records is more constrained than access to criminal court proceedings. See Mokhiber v. Davis, 537 A.2d 1100, 1107 (D.C. 1988) (“We deal here with a question of access to court records, not to court proceedings...[The Supreme Court] has never held that the right is one of access to documents in the court record relating to those proceedings.”).
In a 1981 decision, the D.C. Circuit Court of Appeals weighed six factors that have now been commonly cited in D.C. decisions addressing sealed records: (1) the need for public access to the documents at issue; (2) the extent to which the public had access to the documents prior to the sealing order; (3) the fact that a party has objected to disclosure and the identity of that party; (4) the strength of the property and privacy interests asserted; (5) the possibility of prejudice to those opposing disclosure; and (6) the purposes for which the documents were introduced. See United States v. Hubbard, 650 F.2d 293, 317-22 (D.C. Cir. 1981).
The Florida Supreme Court’s decision in Miami Herald Publishing Co. v. Lewis, 426 So. 2d 1, 6 (Fla. 1983), applies to closure of criminal court records as well as proceedings. Thus, a proponent of closure must overcome the presumption of openness and satisfy the Lewis test defined above.
In addition, the Florida Constitution provides a right of access to judicial branch records, including criminal court records. Art. I, §24, Fla. Const. Florida Rule of Judicial Administration 2.420 governs confidentiality of some criminal court records.
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).
“With respect to the right of access to judicial documents under article I, section 4 of the Hawai’i Constitution, the firmly embedded general policy of openness . . . also applies to the transcript of closed proceedings.” Oahu Publ’ns Inc. v. Ahn, 133 Hawai’i 482, 506, 331 P.3d 460, 484 (2014), as corrected (Aug. 5, 2014). “[A] complete record of those parts of the proceedings closed to the public shall be kept and made available to the public for a legitimate and proper purpose following the completion of trial or disposition of the case without trial.” Id. (citing Gannett Pac. Corp. v. Richardson, 59 Haw. 224, 235, 580 P.2d 49, 57 (1978)). “‘Historically, post-trial transcript access has been granted as soon as the factors which prompted hearing closure have been resolved.’” Id. (quoting Phoenix Newspapers, Inc. v. U.S. Dist. Court for Dist. of Arizona, 156 F.3d 940, 947 (9th Cir. 1998)).
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.”).
Unless covered by a specific exemption (or by a properly issued protective order in litigation), all records of courts are covered by the Access to Public Records Act. Ind. Code § 5-14-3-2. The Act, however, provides for mandatory exemption from disclosure for any information that is “declared confidential by or under rules adopted by the supreme court of Indiana.” Ind. Code § 5-14-3-4(a)(8).
In 2004, the Indiana Supreme Court adopted amendments to Administrative Rule 9, which governs access to court records. The stated objective of the rule is to “provide maximum public accessibility to court records, taking into account public policy interests that are not always fully compatible with unrestricted access.” See Commentary to Ind. Admin. R. 9(A). Though many of the rule’s provisions simply reiterate exemptions provided by the Access to Public Records Act, see, e.g., Ind. Admin. R. 9(G)(2), the rule also exempts from disclosure many additional types of information. See Ind. Admin. R. 9(G). This exclusion can occur without a hearing and without a balancing of the competing interests involved. See Bobrow v. Bobrow, 810 N.E.2d 726, 734 (Ind. App. 2004) (“When public records fall within a mandatory exception under [Ind. Code § 5-14-3-]4(a), a trial court can seal those records without holding . . . a hearing and balancing the competing interests.”).
Generally, court records filed in the office of the clerk of court are public records open to inspection under Iowa Code Chapter 22. In Iowa, “[e]very person shall have the right to examine and copy a public record and to publish or otherwise disseminate a public record or the information contained in a public record.” Iowa Code § 22.2 (2018). Certain records, such as minutes of testimony that accompany a county attorney’s information, are confidential by court rule.
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.
Criminal court records are presumptively open to the public. Courier-Journal & Louisville Times Co. v. Peers, 747 S.W.2d 125 (Ky. 1988); see also Fiorella v. Paxton Media Grp., LLC, 424 S.W.3d 433, 439 (Ky. Ct. App. 2014) (“presumption of openness” applies to “everything filed with the courts”).
There is a constitutional right of access to public documents. Article 12, § 3 of the Louisiana Constitution states: “No person shall be denied the right to . . . examine public documents, except in cases established by law.” This right is implemented by the Louisiana Public Records Act, La. R.S. 44:1 et seq. Under the Public Records Act, “any person” may make a public records request. La. R.S. 44:32. “Any person who has been denied the right to inspect or copy a record” may “institute proceedings for the issuance of a writ of mandamus, injunctive or declaratory relief.” La. R.S. 44:35.
Courts are covered by the Public Records Act. See La. R.S. 44:1(A)(1), defining “public body” as including “any branch . . . of state . . . government,” and article 2, § 1 of the Louisiana Constitution: “The powers of government of the state are divided into three separate branches: legislative, executive, and judicial.”
Typically, court records in criminal cases, whether in the District Courts or on appeal, are obtained simply by going to the clerk’s office (or judge’s chambers) and filling out a form requesting a record.
In general, criminal court records are public in Maine pursuant to Administrative Order JB-05-20 “Public Information and Confidentiality,” which provides: “Information and records relating to cases that are maintained in case files, dockets, indices, lists, or schedules by and at the District, Superior, or Supreme Judicial Courts are generally public and access will be provided to a person who requests to inspect them or have copies made by the clerk’s office staff unless the information or a part of it is confidential . . . .” Id. § III(A)(1).
In a Maine Superior Court case involving access to criminal court records, a Superior Court Justice considered whether to allow access to records of a bindover hearing to determine whether two juveniles arraigned in Juvenile Court on murder charges would be bound over for trial as adults in Superior Court. In re Am. Journal, 1986 Me. Super. LEXIS 347 (Me. Super. Ct. Dec. 3, 1986). The Court reversed an earlier order to impound the bindover hearing, the Court’s findings related to the hearing, findings in a Superior Court bail hearing, and ordered that the complete files “be opened to the public and the media forthwith.” Id. at *9–10.
The Maryland Court of Special Appeals has recognized a right of access to criminal court records inherent in the First Amendment and Article 40 of the Maryland Declaration of Rights. Baltimore Sun v. Thanos, 607 A.2d 565, 567–68 (Md. Ct. Spec. App. 1992) (First Amendment right of access applies to presentence report that had been entered into evidence in a criminal trial).
Access to criminal Case Records is also governed by Maryland Rules 16-901, et seq. Under the Rules, “Case Records” are defined to include “all or any portion of a court paper, document, exhibit, order, notice, docket entry, or other record, whether in paper, electronic, or other form, that is made, entered, filed, or maintained by the clerk of a court in connection with an action or proceeding,” as well as any other “miscellaneous record filed with the clerk of the court pursuant to law that is not a notice record.” Md. Rule 16-902(c)(1)(A) & (C). In other words, this category includes nearly all documents that concern a specific case before a given court, or other items that are filed with the clerk as a matter of course. In general, a presumption of openness applies to these types of records.
The Rules, however, limit or forbid inspection of certain Case Records, including records that have been expunged, search warrants, records pertaining to an arrest warrant prior to its being served; records concerning an ongoing grand jury investigation; presentence investigation reports; transcripts or recordings of court proceedings that were closed to the public, as well as any materials maintained by a court reporter that were not filed with the clerk, records containing certain sensitive medical information, and tax returns. Md. Rule 16-907. With respect to these categories of documents, there is a presumption of closure. Id. These statutory provisions cannot override the constitutional right of access, however. Cf. Thanos, 607 A.2d at 567–68.
Where the presumption of openness applies, a party seeking to seal Case Records must show that a “special and compelling reason exists” to limit access to such records. Md. Rule 16-912(d)(5)(A). Moreover, any order limiting access to Case Records—which can only be made after notice is given and an opportunity provided for interested parties to oppose closure—must be “as narrow as practicable in scope and duration to effectuate the interest sought to be protected by the order.” Md. Rule 16-912(d)(3). Conversely, for records that are presumptively closed, the burden is on the party seeking access to show a “special and compelling reason” requiring access. Rule 16-912(d)(5)(B). For information on the procedure for seeking access to Case Records, see the “Procedure for asserting right of access to proceedings and records” section above.
First Amendment and common law rights of access extend to judicial records such as transcripts of proceedings, court briefs, and evidence. Republican Co. v. Appeals Ct., 812 N.E.2d 887, 892 n.8 (Mass. 2004) (citing Globe Newspaper Co. v. Pokaski, 868 F.2d 497 (1st Cir. 1989)).
To the extent the Supreme Court and Massachusetts courts have not yet decided whether a right of access applies to a certain type of record, Massachusetts courts make this determination based on the type of proceeding associated with the records; if there is a right of access to the proceeding, then the court would likely afford the same access to the records. See, e.g., Newspapers of New England, Inc. v. Clerk-Magistrate, 531 N.E.2d 1261, 1265 (Mass. 1988) (citing Press–Enterprise II, 478 U.S. 1, 8 (1986); Press–Enterprise. I, 464 U.S. 501, 513 (1984)).
Any person may obtain a copy of a recording of open proceedings in all divisions of the trial court known as the District Court Department and in the Boston Municipal Court Department, unless those records have been sealed or impounded. District Court Special Rule 211(A)(5)(a). There is no right of access to a court reporter’s unofficial recording of court proceedings where that recording was not made part of the official court record. Commonwealth v. Winfield, 985 N.E.2d 86, 90–92 (Mass. 2013).
The Minnesota Rules of Public Access to Records of the Judicial Branch provide that as a general policy, the “[r]ecords of all courts and court administrators … are presumed to be open to any member of the public for inspection or copying at all times during the regular office hours.” Minn. R. Pub. Access Rec’ds. Jud. Br. 2. “Records” are defined as “any recorded information that is collected, created, received, maintained or disseminated by a court or court administrator.” Id. 3, subd. 5.
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.
In Montana ex rel The Missoulian v. Montana Twenty-First Judicial District, 933 P.2d 829 (Mont. 1997), the Montana Supreme Court ruled that orders sealing evidence in a homicide prosecution and restricting dissemination of information about the case violated the Montana Constitution and statutory law because no evidentiary hearing was held, no findings were made, and tests for closure and a gag order were not met.
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 North Carolina Constitution provides a qualified right of access to records and documents in a criminal proceeding. In re Investigation into Death of Cooper, 683 S.E.2d 418, 426 (N.C. App. 2009); N.C. Const. art. I, sec. 18. This qualified right of access may be outweighed by a compelling, countervailing governmental interest, and any subsequent sealing or closure must be narrowly tailored to serve that interest. A trial court’s decision to seal documents or close proceedings must be supported by specific findings of fact stated on the record, and it must consider alternatives to sealing before issuing sealing orders. See Cooper, 683 S.E.2d at 427. In Cooper, for example, the sufficiently compelling government interests were the protection of the ongoing investigation; the State’s right to prosecute the perpetrator; and the rights of any future accused to a fair and impartial trial. Id.
Additionally, N.C.G.S. 7A-109(a) specifically grants the public a right to inspect court records in criminal and civil proceedings. This right is not unlimited, however. In Brooksby v. NC Admin. of the Courts, 789 S.E.2d 540 (2016), a real estate company sought copies of all foreclosures since 2010. The court clerk provided copies of records sequentially as staff resources permitted. Requestors sued the Administrative Office of the Courts, arguing a right of independent access to all of the clerk's office's foreclosure records. The Court of Appeals upheld the actions of the clerks. Similarly, the Court of Appeals found nonexclusive contracts addressing remote electronic access to court records as the sole means of remote electronic access to ACIS database were acceptable. LexisNexis Risk Data Mgmt. Inc. v. N. Carolina Admin. Office of Courts, 368 N.C. 180, 775 S.E.2d 651 (2015).
Under North Carolina law, “[t]he following court records are public records and may be withheld only when sealed by court order: arrest and search warrants that have been returned by law enforcement agencies,indictments, criminal summons, and nontestimonial identification orders.” N.C.G.S. §132.1.4(k).
Court records are accessible to the public except as prohibited by N.D. Sup. Ct. Admin. R. 41. A court not may not adopt a more restrictive access policy or adopt any restrictions contrary to Rule 41. Rule 41 states:
In addition to any information which is inaccessible to the public under federal law, the following criminal records may not be accessed by the media or the public: (1) affidavits or sworn testimony and records of proceedings in support of the issuance of a search or arrest warrant pending the return of the warrant; (2) information in a complaint and associated arrest or search warrant to the extent confidentiality is ordered by the court under N.D.C.C. §§ 29-05-32 or 29-29-22; (3) documents filed with the court for in-camera examination pending disclosure; (4)case information and documents in Child Relinquishment to Identified Adoptive Parent cases brought under N.D.C.C. ch. 14-15.1; (5) domestic violence protection order files and disorderly conduct restraining order files when the restraining order is sought due to domestic violence, except for orders of the court; (6) documents in domestic violence protection order and disorderly conduct restraining order cases in which the initial petition was dismissed summarily by the court without a contested hearing; (7) names of qualified or summoned jurors and contents of jury qualification forms if disclosure is prohibited or restricted by order of the court; (8) records of voir dire of jurors, unless disclosure is permitted by court order or rule; (9) records of deferred impositions of sentences or pretrial diversions resulting in dismissal; (10) records of a case in which the magistrate finds no probable cause for the issuance of a complaint; (11) unless exempted from redaction by N.D.R.Ct. 3.4(c), protected information: (A) except for the last four digits, social security numbers, taxpayer identification numbers, and financial account numbers, (B) except for the year, birth dates, and (C) except for the initials, the name of an individual known to be a minor, unless the minor is a party, and there is no statute, regulation, or rule mandating nondisclosure; (12) judge and court personnel work material, including personal calendars, communications from law clerks, bench memoranda, notes, work in progress, draft documents and non-finalized documents; (13) party, witness and crime victim contact information gathered and recorded by the court for administrative purposes, including telephone numbers and e-mail, street and postal addresses; (14) the name of a patron of the North Dakota Legal Self Help Center or information sufficient to identify a patron or the subject about which a patron requested information.
Public records and meetings are governed by ORS Chapter 192. In Oregon, subject to certain restrictions, “[e]very person has a right to inspect any public record of a public body[.]” ORS 192.314. Public records include “any writing that contains information relating to the conduct of the public’s business, including but not limited to court records . . . .” ORS 192.311(4)(a). Public bodies include state agencies, ORS 192.311(4), and state agencies include courts. ORS 192.311(6).
Article I, section 10 of the Oregon Constitution arguably provides access to court records as well. Although the Oregon Supreme Court has not published an opinion on the issue, the Court has considered it. In A.K.H. v. R.C.T., a U.S. District Court certified a question to the Oregon Supreme Court and transferred sealed court records to the Oregon Supreme Court at the same time. The defendant in the matter requested that those documents, which were under seal in a related federal court case, remain under seal at the Oregon Supreme Court. The Oregon Supreme Court declined, citing Article I, section 10. See Multnomah County Attorney Reference Manual 27 (2008) (citing A.K.H. v. R.C.T., Supreme Court Case 37202 (1990)).
However, Oregon excludes from disclosure various categories of information. These exclusions are listed in ORS 192.345 and 192.355. Notable exceptions from disclosure include public records pertaining to litigation, ORS 192.345(1), “investigatory information compiled for criminal law purposes,” ORS 192.345(3), and public records otherwise made confidential under Oregon law, ORS 192.355(9)(a).
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.
Pursuant to the test set forth by the U.S. Supreme Court in Press-Enterprise Company v. Superior Court of California, 478 U.S. 1, 9 (1986), the Utah Supreme Court requires that “a court first determine whether a qualified First Amendment right of public access exists for the particular proceeding [or documents related thereto].” State v. Archuleta, 857 P.2d 234, 237 (Utah 1993) (internal quotations omitted). “A qualified, or presumptive, right of access exists only if (1) there has been a tradition of accessibility to the information desired, and (2) public access would play a significant positive role in the functioning of the process in question.” Id. However, “[e]ven if a qualified right of access to a criminal proceeding or judicial records does exist, that right is not absolute.” Id. “Instead, it must be weighed against other considerations, including the accused’s Sixth Amendment right to a fair trial.” Id.
Consistent with these principles, Rule 4-202.04 of the Utah Rules of Judicial Administration states:
In deciding whether to allow access to a court record or whether to classify a court record as private, protected or sealed, the court may consider any relevant factor, interest or policy presented by the parties, including but not limited to the interests described in Rule 4-202. In ruling on a motion under this rule the judge shall:
(A) make findings and conclusions about specific records;
(B) identify and balance the interests favoring opening and closing the record; and
(C) if the record is ordered closed, determine there are no reasonable alternatives to closure sufficient to protect the interests favoring closure.
Utah R. Judicial Admin Rule 4-202.04(3); see also Tillotson v. Van Nederveen Meerkerk, 2015 UT App 142, ¶ 6,353 P.3d 165 (“‘[C]ourt records are public unless otherwise classified by this rule.’” (quoting Utah Code Jud. Admin. 4-202.02(1)). However, the Utah Supreme Court also has noted that the public’s “right to know” is not absolute and is subject to an “implied rule of reason.” KUTV Inc. v. Utah State Bd. of Educ., 689 P.2d 1357, 1361 (Utah 1984). An agency seeking to withhold records bears the burden to overcome the strong presumption that government records are open to inspection. Id. at 1361-62.
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.
The public’s right of access under the First Amendment and under Article I, Section 12 of the Virginia Constitution extends to inspection of documents filed in criminal proceedings “[u]nder certain circumstances and with qualifications.” Globe Newspaper Co. v. Commonwealth, 264 Va. 622, 628, 570 S.E.2d 809, 812 (2002) (citing In re Washington Post Co., 807 F.2d 383, 390 (4th Cir.1986)).
In a civil case, the Virginia Supreme Court held that judicial records to which the right of access attaches include “the pleadings and any exhibits or motions filed by the parties and all orders entered by the trial court in the judicial proceedings leading to the judgment under review.” Shenandoah Pub. House, Inc. v. Fanning, 235 Va. 253, 257, 368 S.E.2d 253, 255 (1988).
The public’s right of access to evidence admitted during a criminal proceeding does not include the right to demand testing of such evidence. See Globe Newspaper Co. v. Commonwealth, 264 Va. 622, 630, 570 S.E.2d 809, 813 (2002) (public’s right of access did not include right to re-test DNA material submitted into evidence during criminal proceeding).
In Virginia, the public’s presumptive right of access to court records in criminal matters is protected by statute. Trial courts in Virginia are divided into two categories: courts of record, and courts not of record. Courts of record include the circuit courts. See Title 17.1 of the Va. Code. Public access to court records for proceedings pending in circuit courts is governed by Virginia Code § 17.1-208, which provides, in pertinent part, that “[e]xcept as otherwise provided by law, any records that are maintained by the clerks of the circuit courts shall be open to inspection in the office of the clerk by any person and the clerk shall, when requested, furnish copies thereof subject to any reasonable fee charged by the clerk pursuant to § 17.1-275.” See Va. Code § 17.1-208(B). Section 17.1-208(B) makes no distinction between criminal and civil proceedings, see Shenandoah Pub. House, Inc. v. Fanning, 235 Va. 253, 258, 368 S.E.2d 253, 255 (1988), and its presumption of access is “equivalent” to the right of access under the First Amendment and Article I, Section 12 of the Virginia Constitution, see Daily Press, Inc. v. Commonwealth, 285 Va. 447, 456, 739 S.E.2d 636, 641 (2013). Section 17.1-208 was substantially amended in 2018. Although the language most directly pertinent to public access was not altered, it remains to be seen if and to what extent the amendments affect how Virginia courts analyze access issues relating to court records.
Courts not of record include general district courts. See Title 16.1 of the Va. Code. Although on its face, Virginia Code § 17.1-208 only applies to circuit courts, it was previously understood to apply with equal force to general district court records. See Doe v. Paradigm Mgmt. Co., 69 Va. Cir. 446, 448, 2006 WL 147592, *2 (Arlington Cir. Ct. Jan. 20, 2006) (“While the General District Court is not directly subject to Virginia Code § 17.1-208, the common law rule of openness embodied in that statute nonetheless applies the General District Court.”). However, in 2018, the Virginia General Assembly enacted a new statute governing access to general district court records, Virginia Code § 16.1-69.54:1. See 2018 Acts of Assembly, c. 584 (S.B. 564). Effective July 1, 2019, § 16.1-69.54:1 provides that:
Except where the nature or size of the request would interfere with the business of the court or with its use by the general public, or as otherwise provided by law, the requested court records or reports of aggregated, nonconfidential case data shall be provided to the requester within a reasonable period of time, given the nature of the request and the availability of staff to respond to the request, but in no event longer than 30 days from the date of a complete request made by a requester that is fully compliant with the requirements of this section and other applicable law.
Va. Code § 16.1-59.54:1(E). It remains to be seen how Virginia courts construe the statute, including when and how a request might be deemed to interfere with the business of the court, and whether such interference is grounds to deny access entirely.
Courts not of record also include juvenile and domestic relations (“JDR”) courts. Public access to JDR court records is governed by Virginia Code § 16.1-299, et seq. Generally speaking, the Virginia Code provides that JDR court records are not open for public inspection, with one particularly notable exception: 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 presumption of access to judicial records includes the right to contemporaneously review them. Therefore, absent a compelling interest sufficient to rebut the presumption of access, delayed access violates the public’s right of access. See Daily Press, Inc. v. Commonwealth, 285 Va. 447, 454, 739 S.E.2d 636, 640 (2013) (“Neither the expiration of the sealing order nor the later availability of the exhibits cured this deprivation of the right to contemporaneously review the files.”).
The public’s right of access to court proceedings includes the right of access to case records, and any limitations are subject to the five-factor Bone-Club/Ishikawa test. Dreiling v. Jain, 151 Wn.2d 900, 915, 93 P.3d 861, 870 (2004). Under the Bone-Club/Ishikawa framework,
1) the proponent of closure or sealing must make some showing of the need for doing so, and where that need is based on a right other than an accused’s right to a fair trial, the proponent must show a “serious and imminent threat” to that right;
2) anyone present when the closure motion is made must be given an opportunity to object to the closure;
3) the proposed method for curtailing open access must be the least restrictive means available for protecting the threatened interests;
4) the court must weigh the competing interests of the proponent of closure and the public; and
5) the order must be no broader in its application or duration than necessary to serve its purpose.
Seattle Times Co. v. Ishikawa, 97 Wn.2d 30, 36–39 (1982); State v. Bone-Club, 128 Wn.2d 254, 258–59 (1995).
In addition to the Bone-Club/Ishikawa factors, decisions to seal or redact records must comply with state court General Rule 15. In re Dependency of M.H.P., 184 Wn.2d 741, 364 P.3d 94 (2015); State v. Waldon, 148 Wn. App. 952, 962-67, 202 P.3d 325 (2009). GR 15(c) permits court files and records to be sealed or redacted only after a hearing and written findings by the judge that compelling privacy or safety concerns outweigh public interest in access. Failure to comply with either Ishikawa or GR 15 is reversible error. See In re Marriage of R.E., 144 Wn. App. 393, 404-06, 183 P.3d 339 (2008) (reversing trial court when sealing order “[did] not comply with GR 15”).
In West Virginia, both the West Virginia Constitution (article III, §17) and statutes (W. Va. Code § 51-4-2) provide a presumptive right of public access to court records. See State ex rel. Garden State Newspapers, Inc. v. Hoke, 205 W. Va. 611, 616, 520 S.E.2d 186, 191 (W. Va. 1999); Daily Gazette Co. v. Committee on Legal Ethics of the W. Va. State Bar, 174 W. Va. 359, 364, 326 S.E.2d 705, 710 (W. Va. 1984); State ex rel. Herald Mail Co. v. Hamilton, 165 W. Va. 103, 267 S.E.2d 544, 547-49 (1980).
With limited exceptions, Rule 10.04(a) of the West Virginia Trial Court Rules ( http://www.courtswv.gov/legal-community/court-rules/trial-court/chapter-1.html#rule10.04 ) mandates that “[a]ll persons are . . . entitled to full and complete information regarding the operation and affairs of the judicial system.” The only exceptions to this general rule are (a) when confidentiality is expressly provided by law or (b) a court order to “limit access to court files” pursuant to Rule 10.3 of the West Virginia Trial Court Rules ( http://www.courtswv.gov/legal-community/court-rules/trial-court/chapter-1.html#rule10.03 ).
Rule 10.04(d) of the West Virginia Trial Court Rules states,
“The custodian of any court file or other public record shall furnish copies of the requested information or, in the alternative, furnish proper and reasonable opportunities for the inspection and examination of the court file or public record in his or her office during usual business hours. Reasonable facilities for taking memoranda or abstracts from the court file or other public record shall be provided. If the court file or public record requested exists in magnetic, electronic or computer form, when requested, the custodian of the records shall make copies available in the format in which it is stored on magnetic or electronic media.”
Rule 10.04(e) states: “The court, circuit clerk, or other court employee may charge a fee reasonably calculated to cover the actual cost of reproducing or otherwise making available the public records.”
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 …."