A. In general
The Supreme Court has not directly addressed whether the public and the press have a constitutional right of access to civil proceedings, though a plurality found that “historically both civil and criminal trials have been presumptively open.” Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 580 n.17 (1980).
Beyond the constitutional right of access, the Supreme Court and Tenth Circuit acknowledge “the axiom that a common law right exists to inspect and copy judicial records” in civil proceedings. United States v. Hickey, 767 F.2d 705, 708 (10th Cir. 1985); see also Nixon v. Warner Commc’ns, Inc., 435 U.S. 589, 597 (1978) (acknowledging common law right of access to civil judicial documents).
In Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 580 n.17 (1980) a plurality opinion of the Supreme Court found that historically both civil and criminal trials have been presumptively open." The Second Circuit has also found "that the First Amendment does secure to the public and to the press a right of access to civil proceedings in accordance with the dicta of the Justices in Richmond Newspapers." Westmoreland v. CBS, Inc., 752 F.2d 16, 22–23 (2d Cir.1984) (recognizing First Amendment right of public access to civil trials); N.Y. Civil Liberties Union v. N.Y.C. Transit Auth., 684 F.3d 286, 298 (2d Cir. 2012) ("We have concluded that the First Amendment guarantees a qualified right of access not only to criminal but also to civil trials and to their related proceedings and records."). As noted in N.Y. Civil Liberties Union, "all the other circuits that have considered the issue have come to the same conclusion." See, e.g., Rushford v. New Yorker Magazine, Inc., 846 F.2d 249, 253–54 (4th Cir. 1988); In re Continental Ill. Secs. Litig., 732 F.2d 1302, 1308 (7th Cir. 1984); Publicker Indus., Inc. v. Cohen, 733 F.2d 1059, 1070 (3d Cir.1984); In re Iowa Freedom of Info. Council, 724 F.2d 658, 661 (8th Cir.1983); Newman v. Graddick, 696 F.2d 796, 801 (11th Cir.1983).
“[P]retrial civil proceedings are generally open to the public.” 360 Mortg. Grp., LLC v. Stonegate Mortg. Corp., No. 5:14-cv-00310-F, 2016 WL 3030166, *6 (E.D. N.C. May 25, 2016) (citing Va. Dep't of State Police v. Wash. Post, 386 F.3d 567, 580 (4th Cir. 2004)).
In the civil context, much of the case law concerns access to judicial records, not proceedings. However, one district court in the Fourth Circuit has observed that the distinction is immaterial. See Minter v. Wells Fargo Bank, N.A., 258 F.R.D. 118, 121 (D. Md. 2009) (“Courts have interpreted Richmond Newspapers broadly, and make little distinction between the right of access to court proceedings and the right of access to court records. These courts understand Richmond Newspapers to recognize the public’s general right to receive information within a court’s control.”) (internal quotations omitted).
The Fifth Circuit has not specifically addressed the press and public’s right to attend civil trials, but the presumption is that such proceedings are open, and the Fifth Circuit has noted a clear and strong First Amendment interest in ensuring that what transpires in the courtroom is public property. Doe v. Stegall, 653 F.2d 180, 185 (5th Cir. 1981).
However, the public’s right to attend trials and the public’s right to know the identity of the parties in civil proceedings is not the same. This is because the public right to scrutinize governmental functioning is not so completely impaired by a grant of anonymity to a party as it is by closure of the trial itself. Doe v. Stegall, 653 F.2d 180, 185 (5th Cir. 1981). The assurance of fairness preserved by public presence at a trial is not lost when one party’s cause is pursued under a fictitious name. Id.
“Most of the cases recognizing the presumption of access relate to the right of the public (and press) to attend criminal proceedings and to obtain documents used in criminal cases that the policy reasons for granting public access to criminal proceedings apply to civil cases as well. . . . These policies relate to the public's right to monitor the functioning of our courts, thereby insuring quality, honesty and respect for our legal system.” In re Continental Illinois Secs. Litig., 732 F.2d 1302, 1308 (7th Cir. 1984). “Though its original inception was in the realm of criminal proceedings, the right of access has since been extended to civil proceedings because the contribution of publicity is just as important there. . . . In fact, mistakes in civil proceedings may be more likely to inflict costs upon third parties, therefore meriting even more scrutiny.” Grove Fresh Distribs., Inc. v. Everfresh Juice Co., 24 F.3d 893, 897 (7th Cir.1994) (citing Smith v. United States Dist. Court, 956 F.2d 647, 650 (7th Cir. 1992)).
“Secrecy in judicial proceedings is disfavored, as it makes it difficult for the public (including the bar) to understand why a case was brought (and fought) and what exactly was at stake in it and was the outcome proper.” GEA Group AG v. Flex-N-Gate Corp., 740 F.3d 411, 419 (7th Cir. 2014). “People who want secrecy should opt for arbitration. When they call on the courts, they must accept the openness that goes with subsidized dispute resolution by public (and publicly accountable) officials. . . . What happens in the halls of government is presumptively public business. Judges deliberate in private but issue public decisions after public arguments based on public records. . . . Any step that withdraws an element of the judicial process from public view makes the ensuing decision look more like fiat, which requires compelling justification.” Union Oil Co. of California v. Leavell, 220 F.3d 562, 568 (7th Cir. 2000); Hicklin Eng'g, L.C. v. Bartell, 439 F.3d 346, 348 (7th Cir. 2006).
Use of pseudonyms to conceal litigants’ names is also a form of secrecy that the Seventh Circuit disfavors, because it obscures the “grounds and motivations of a decision”; sometimes these concerns are overridden, i.e., in cases where “the plaintiff is a victim of sexual abuse, especially a child victim. . . . Yet even in such cases we've required some evidence of an incremental effect on the victim of disclosure of his or her name in a judicial opinion.” Mueller v. Raemisch, 740 F.3d 1128, 1136 (7th Cir. 2014) (plaintiffs challenging sex offender registration were “not victims of sexual abuse, but perpetrators of it” and the “value of their claim to privacy” could not support “pseudonymous litigation”) (citing Doe v. Smith, 429 F.3d 706, 710 (7th Cir. 2005) (remanding for determination of whether plaintiff may proceed anonymously in case alleging surreptitious taping of sexual activity, court notes that “[p]laintiff was a minor when the recording occurred but is an adult today”)); see also R.R.D. v. Holder, 746 F.3d 807 (7th Cir. 2014) (former Mexican law enforcement officer seeking asylum allowed to proceed in court under his initials “to avoid what may be an ongoing risk to his safety”); Duff v. Central Sleep Diagnostics, LLC, 801 F.3d 833, 844 (7th Cir. 2015) (“While secrecy in judicial proceedings is generally disfavored,” district court did not abuse its discretion in receivership proceeding in ordering that names of claimant-fraud victims not be made public).
The Supreme Court of Alabama has stated generally that “[o]nly in special circumstances, or where justice requires, are proceedings limited or completely closed to the public.” Ex parte Balogun, 516 So. 2d 606, 610 (Ala. 1987); see also Holland v. Eads, 614 So. 2d 1012, 1015 (Ala. 1993) (“Most other courts . . . have recognized a similar presumption of a right of public access to judicial proceedings . . . and placed the burden on the party seeking secrecy.”)
The Arizona Supreme Court has held that “[t]here is no doubt that there exists a common law right of access to civil trials.” Lewis R. Pyle Mem. Hosp. v. Superior Court, 149 Ariz. 193, 197, 717 P.2d 872, 876 (1986).
Generally, access to civil court records is similar to access to criminal records and 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.”
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 . . . .”
Under Ariz. R. Civ. P. 5.4, a party seeking to seal a record in a civil case must make a heightened showing that would justify keeping otherwise public material private. More specifically, the party must show (A) “an overriding interest exists that supports filing the document under seal and overcomes the right of public access to it,” (B) a “substantial probability” of prejudice if the document is not sealed, (C) the proposed restriction is “no greater than necessary to preserve the confidentiality of the information subject to the overriding interest,” and (D) “no reasonable, less restrictive alternative exists to preserve the confidentiality of the information subject to the overriding interest.” Ariz. R. Civ. P. 5.4(c)(2).
Arkansas Code Annotated 16-10-105 says that all sittings of Arkansas trial courts are public and may be attended by any person. There are, however, statutory limitations on that general rule, as several other statutes require certain proceedings—like adoption hearings and domestic relations cases—to be closed. Ark. Code Ann. 4-75-605 (adoption hearings); Ark. Code Ann. 16-13-222 (domestic relations cases).
One of the basic principles of a democracy is that people have a right to know what is done in their courts. Arkansas Dep’t of Human Services v. Hardy, 316 Ark. 119, 871 S.W.2d 352 (1994). Correlative of this principle is the vital function of the press to subject the judicial process to extensive public scrutiny and comment. Id. (citing Arkansas Television Co. v. Tedder, 281 Ark. 152, 662 S.W.2d 174 (1983)). Thus, there is a strong presumption in favor of the right of access in civil cases. See id.; see also IDT Corp. v. eBay, 709 F.3d 1220, 1222 (8th Cir. 2013) (stating that the common-law right of access applies to civil proceedings).
Consistent with the standard in criminal cases, Presley v. Georgia, 558 U.S. 209, 212–13 (2010), court closures in civil cases must be rare. The court must cite specific legal authority for closure, and the party seeking closure must demonstrate “an overriding interest that is likely to be prejudiced” if the proceeding, or portion thereof, remains open to the public. Id. Upon such a showing, the court must provide notice and opportunity to be heard to the opposing party, and must make a finding, on the record, that the proceeding can be properly closed consistent with the standard set forth in Presley. Id. Moreover, “the closure must be no broader than necessary to protect [the] interest [specified by the moving party, and] the trial court must consider reasonable alternatives to closing the proceeding.” Id.
The tradition of access to Georgia civil proceedings is reflected in Uniform Superior Court Rule 22, which provides for electronic and photographic news coverage of all judicial proceedings. See Uniform Superior Court Rule 22(A) (“Open courtrooms are an indispensable element of an effective and respected judicial system. It is the policy of Georgia’s courts to promote access to and understanding of court proceedings not only by the participants in them but also by the general public and by news media who report on the proceedings to the public.”); 22(G) (“A properly submitted request for recording should generally be approved . . . .”).
The Idaho Supreme Court has not directly addressed the issue of whether there is a constitutional right of access to civil proceedings. But, the language of Article 1, section 18 of the Idaho Constitution (“Courts of justice shall be open to every person, and a speedy remedy afforded for every injury of person, property or character, and right and justice shall be administered without sale, denial, delay, or prejudice”) appears broad enough to encompass both civil and criminal proceedings. Likewise, the U.S. Supreme Court has not directly addressed whether the public has a constitutional right of access to civil cases, although a plurality of the Court found that “historically both civil and criminal trials have been presumptively open.” Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 580 n.17 (1980) (plurality opinion). Given history and experience, it is fair to assume that most civil proceedings will be open to the public.
Kansas courts have not had occasion to rule specifically that the presumption of openness established in a criminal context, in Kansas City Star Co. v. Fossey, 630 P.2d 1176, 1182 (Kan. 1981), also applies to civil proceedings. However, the Kansas Judicial Branch maintains a policy of openness that applies to civil, as well as criminal, proceedings. See, e.g., Request Court Records, Kansas Judicial Branch, http://www.kscourts.org/rules-procedures-forms/open-records-procedures/default.asp.
Although Kansas courts have focused on openness in criminal cases, a federal court in the state has ruled in favor of open civil proceedings. A defendant in Mike v. Dymon, Inc., No. 95-2405-EEO, 1997 WL 38111 (D. Kan. 1997), allegedly breached an employment contract by making an unauthorized disclosure about a business. The defendant, without objection from the plaintiff, asked that the courtroom proceedings “be closed to unauthorized personnel during presentation or discussion of ‘competitive confidential’ or ‘confidential’ information.” In rejecting the request for closure, the judge recognized “that members of the public possess both a common law and First Amendment right of access to civil trials.” Dymon, 1997 WL 38111, at *1 (citing Publicker Indus., Inc. v. Cohen, 733 F.2d 1059, 1066–71 (3rd Cir. 1984)). The judge quoted In re Krynicki, 983 F.2d 74, 75 (7th Cir. 1992), saying:
“[W]hat happens in the halls of government is presumptively open to public scrutiny. Judges deliberate in private but issue public decisions after public arguments based on public records. The political branches of government claim legitimacy by election, judges by reason. Any step that withdraws an element of the judicial process from public view makes the ensuing decision look more like fiat; this requires rigorous justification.”
In 2019, the Kansas Supreme Court adopted Rules Relating to Kansas eCourt, contained in eCourt rules 20, 21, 22, 23, and 24. See Rules Adopted by the Supreme Court, Kansas Judicial System, http://www.kscourts.org/rules/eCourt.asp. The rules apply to all cases in district court, civil and criminal. “The Kansas Supreme Court has developed a centralized case management system that maintains case records of the Kansas judicial branch.” Kan. Sup. Ct. R. 20. “Unless otherwise indicated, these rules apply to courts as the Kansas eCourt case management system is implemented.” Id. “A request for documents is subject to the Kansas Open Records Act, K.S.A. 45-215 et seq., and other statutes, caselaw, Supreme Court rules, and court orders.” Rule 22.
The Mississippi Rules of Civil Procedure mandate that “[a]ll trials upon the merits shall be conducted in open court, except as otherwise provided by statute.” Miss. R. Civ. P. 77(b). Further, Miss. R. Civ. P. 43(a) states that in all trials, “the testimony of witnesses shall be taken orally in open court, unless otherwise provided by these rules or the Mississippi Rules of Evidence.”
The Nevada Supreme Court has recognized that the public has a right to access proceedings in civil cases under state law and the U.S. Constitution. See Del Papa v. Steffen, 112 Nev. 369, 374, 915 P.2d 245, 248 (1996).
NRS § 1.090 provides that “[t]he sitting of every court of justice shall be public except as otherwise provided by law. . .” Id. (emphasis added). The term “court of justice” is defined to mean the Nevada Supreme Court, the Court of Appeals, the districts courts, justice courts, and such municipal courts as may from time to time be established by the legislature in incorporated cities or towns. NRS 1.010.
In Steffen, the Nevada Supreme Court invalidated confidentiality orders arising from judicial disciplinary proceedings, holding that the orders implicated the First Amendment of the U.S. Constitution. The Court held that a state may only deny the public’s right of access in civil proceedings if it shows that the denial is necessitated by a compelling government interest and is narrowly tailored to serve that interest. Steffen, 112 Nev. at 374 (1996) (citing Globe Newspaper Co. v. Super. Ct., 457 U.S. 596, 607 (1982)).
The Nevada Supreme Court has enacted rules governing electronic coverage of court proceedings. S.C.R. 229-246. Under these rules, there is a presumption that all courtroom proceedings that are open to the public are subject to electronic coverage. S.C.R. 230(2).
Rule 1-104 NMRA mandates that all courtroom proceedings be open to the public, unless the courtroom is closed automatically for: (1) adoption hearings as set forth in NMSA 1978, Section 32A-58(C); (2) proceedings to detain a person with a threatening communicable disease as set forth in NMSA 1978, Section 24-1-15(J); proceedings for testing as set forth in NMSA 1978, Section 24-2B-5.1(B); and pretrial proceedings under the New Mexico Uniform Parentage Act, as set forth in NMSA 1978, Section 40-11A-625.
An agreement of the parties to close the courtroom will not suffice to overcome the presumption of openness. Id. Rather, the motion for courtroom closure must advance an interest that overrides the public’s interest in attending the proceeding. Id. If the court determines, on its own initiative, that a proceeding should be closed, the court will file and serve on each party an order to show cause why the proceeding should not be. Id. If, by contrast, a party or any other person or entity with a sufficient interest moves to exclude the public from any portion of the courtroom proceeding, a written motion must be filed and served at least forty-five days prior to the commencement of the proceeding. Opposing parties will be allowed fifteen days after service of the motion to respond, and any member of the public may file a written response at any time before the hearing. Movants will be allowed fifteen days to reply to a written response by a party. Id.
An order for closure must be in writing, shall articulate the interest protected and specify the court’s findings underlying the order. Ultimately, the court may exclude the public to the extent that it finds: (1) such order is necessary to preserve an overriding interest that is likely to be prejudiced if the courtroom is not closed; (2) the order for courtroom closure is narrowly tailored to protect the overriding interest; and (3) the court has considered reasonable alternatives to courtroom closure. Id.
In general, Pennsylvania courts have recognized both a constitutional and common law right of access to civil proceedings. Hutchison v. Luddy, 581 A.2d 578, 582 (Pa. Super. 1990), aff’d in relevant part, rev’d in part, 594 A.2d 307 (Pa. 1991). This right, however, is not absolute. Id. Under the First Amendment and the Pennsylvania Constitution, closure of a civil proceeding is permitted only when there is “a showing that the denial serves an important governmental interest and there is no less restrictive way to serve that governmental interest.” Id. (quoting Publicker Indus., Inc. v. Cohen, 733 F.2d 1059, 1070 (3d Cir. 1984)); accord PA Childcare LLC v. Flood, 887 A.2d 309, 312 (Pa. Super. 2005) (“only a compelling government interest justifies closure and then only by a means narrowly tailored to serve that interest” (citation omitted)).
Under the common law, a party seeking closure must show that “the interest in secrecy outweighs the presumption” of access. Id.(quoting Bank of America Nat’l Tr. & Sav. Ass’n v. Hotel Rittenhouse Assocs., 800 F.2d 339, 344 (3d Cir. 1986)). In deciding whether to grant a motion for closure, a court must balance the interests in favor of access against those interests in opposition to access. Id.; accord PA Childcare LLC, 887 A.2d at 313.
See Wis. Stat. § 757.14:
The sittings of every court shall be public and every citizen may freely attend the same, except if otherwise expressly provided by law on the examination of persons charged with crime; provided, that when in any court a cause of a scandalous or obscene nature is on trial the presiding judge or justice may exclude from the room where the court is sitting all minors not necessarily present as parties or witnesses.