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 right to public access extends to civil matters, in order to “assure the public that procedural rights are respected and that justice is afforded equally.” B.P. Explorat. & Prod. v. Claimant ID 100246928, 920 F.3d 209, 210 (5th Cir. 2019) (quoting Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 595 (1980) (Brennan, J. concurring)). The issue revolves around public confidence in the judicial system. “Sealing a record undermines that interest, but shutting the courthouse door poses an even greater threat to public confidence in the justice system.” Id. at 211. 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 are not treated the same. Courts have reasoned that 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. Id. Courts have held that 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. But see Doe v. Merritt Hosp., L.L.C., 353 F. Supp. 3d 472, 482 (E.D. La. 2018) (holding that the concern of possible future harm to a HIV-affected employment discrimination plaintiff was “outweighed by the public's interest in an open judicial forum and basic fairness to the [defendant’s] employees accused of undertaking discriminatory actions”).
“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).
Although Eighth Circuit case discussion is limited, the Supreme Court has suggested that civil trials would—like criminal trials—be presumptively open to the public. Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 580 n.17 (1980) (“[W]e note that historically both civil and criminal trials have been presumptively open.”).
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).
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. The Court observed that although those decisions were rendered “in the criminal context, the reasoning of these decisions suggests that the First Amendment right of access extends beyond the context of criminal proceedings and encompasses civil proceedings as well.” Id. at 1207. The Court held that “it is clear today that substantive courtroom proceedings in ordinary civil cases are presumptively open” and that statutory law “must be interpreted to preclude closure of proceedings that satisfy” the U.S. Supreme Court’s criteria for openness. Id. at 1217 (internal quotations omitted). It added that “every lower court opinion of which we are aware that has addressed the issue of First Amendment access to civil trials and proceedings has reached the conclusion that the constitutional right of access applies to civil as well as to criminal trials.” Id. at 1208 (internal citations omitted).
This presumption of access is only defeated when a court “hold[s] a hearing and expressly find[s] that (i) there exists an overriding interest supporting the closure and/or sealing; (ii) there is a substantial probability that the interest will be prejudiced absent closure and/or sealing; (iii) the proposed closure and/or sealing is narrowly tailored to serve the overriding interest; and (iv) there is no less restrictive means of achieving the overriding interest.” Id. at 1217-1218.
In response to NBC Subsidiary, the California Judicial Council adopted California Rules of Court, Rules 2.550 and 2.551, entitled “Sealed records” and “Procedures for filing records under seal.” Rule 2.550(c) states that “[u]nless confidentiality is required by law, court records are presumed to be open.” According to the accompanying Advisory Committee Comment, Rules 2.550 and 2.551 provide a standard for sealing civil and criminal records, and are based on NBC Subsidiary. The rules “recognize the First Amendment right of access to documents used at trial or as a basis of adjudication.” Id.
Colorado appellate courts have not addressed the constitutional or common law right of access to civil proceedings. In the context of a criminal case, the Colorado Supreme Court stated that “[t]he press has . . . a fundamental right to attend any court proceeding, which is open to the public.” Star Journal Publ’g Corp. v. Cnty. Court, 591 P.2d 1028, 1030–31 (Colo. 1979).
In dicta in another criminal case, the Colorado Supreme Court recently recognized that “presumptive access to judicial proceedings is a right recognized under both the state and federal constitutions,” but simultaneously declined to recognize a constitutional or common law right of access to criminal court records. People v. Owens, 2018 CO 55, ¶ 1, 420 P.3d 257, 257 (Colo. 2018).
Delaware recognizes a right of access to civil proceedings pursuant to its common law, in addition to the right of public access arising under the First Amendment to the Constitution of the United States. C. v. C., 320 A.2d. 717, 723 (Del. 1974) (recognizing common law right); Gannett Co., Inc. v. State, 571 A.2d 735, 742 (Del. 1989) (First Amendment right); Horres v. Chick-Fil-A, Inc., 2013 WL 1223605 at *1 (Del. Ch. Mar. 27, 2013) (recognizing the two sources of the right to access are the First Amendment and common law); Matter of 2 Sealed Search Warrants, 710 A.2d 202, 206 (Del. Super. 1997) (criminal).
District of Columbia
The D.C. Circuit has recognized a “strong presumption in favor of public access to judicial proceedings” in civil cases, as in criminal cases. Metlife, Inc. v. Fin. Stability Oversight Council, 865 F.3d 661, 665 (D.C. Cir. 2017); SEC v. American International Group, 712 F.3d 1, 3 (D.C. Cir. 2013); see also Richmond Newspapers, 448 U.S. 555, 580 n. 17 (1980) (“[H]istorically both civil and criminal trials have been presumptively open.”); see also id. at 599 (Stewart, J., concurring) (“[T]he First and Fourteenth Amendments clearly give the press and the public a right of access to trials themselves, civil as well as criminal.”); In re Guantanamo Bay Detainee Litig., 630 F. Supp. 2d 1, 10 (D.D.C. 2009).
Like proceedings in criminal cases, civil proceedings, too, are presumptively open. Under Barron v. Florida Freedom Newspapers, Inc., 531 So. 2d 113, 116 (Fla. 1988), to overcome the strong presumption of openness in civil proceedings, a proponent of closure must satisfy a three-prong test. The first prong requires a proponent to show that closure is necessary: “(a) to comply with established public policy set forth in the constitution, statutes, or case law; (b) to protect trade secrets; (c) to protect a compelling government interest [e.g., national security; confidential informants]; (d) to obtain evidence to properly determine legal issues in a case; (e) to avoid substantial injury to innocent third parties [e.g., to protect young witnesses from offensive testimony; to protect children in a divorce]; or (f) to avoid substantial injury to a party by disclosure of matter protected by a common law or privacy right not generally inherent in the specific type of civil proceeding sought to be closed.” Id. at 118. For privacy concerns, “it is generally the content of the subject matter rather than the status of the party that determines whether a privacy interest exists” that permits closure. Id. However, the privacy interest can be negated where “the content of the subject matter directly concerns a position of public trust held by the individual seeking closure.” Id. Second, the court must find that no reasonable alternatives exist to reach the desired result. Id. Finally, if no reasonable alternative exists, then the court must ensure that the means and the least restrictive necessary to accomplish the goal. Id.
The Court reiterated its support for the Barron standards and explained that “public access to court proceedings and records [is] important to assure testimonial trustworthiness; in providing a wholesome effect on all officers of the court for purposes of moving those officers to a strict conscientiousness in the performance of duty; in allowing nonparties the opportunity of learning whether they are affected; and in instilling a strong confidence in judicial remedies, which would be absent under a system of secrecy.” In Re: Amendments to the Florida Family Law Rules of Procedure, 723 So. 2d 208, 209 (Fla. 1998).
Access to judicial records is further governed by Florida Rule of Judicial Administration 2.420, with standards for access to electronic court records governed by Florida Supreme Court Administrative Order 14-19, as amended.
Also, Florida Rule of Judicial Administration 2.450 makes Florida state courts presumptively open to electronic media. See also In re Post-Newsweek Stations Fla. Inc., 370 So. 2d 764 (Fla. 1979).
Florida Rule of Appellate Procedure 9.100(d) provides for expedited, original appellate jurisdiction of any order preventing (or granting) the public or press access to judicial proceedings or records.
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.
An Illinois appellate court extended the U.S. Supreme Court’s analysis of the constitutional right of access in criminal cases to civil cases. In re Marriage of Johnson, 232 Ill. App. 3d 1068, 1074, 598 N.E.2d 406, 410 (citing Nixon v. Warner Commc’ns, Inc., 435 U.S. 589, 597 (1978)). Johnson established the rule that in order to overcome a presumption of access, a party must demonstrate that a compelling governmental interest exists and that the restrictions on access are narrowly tailored to meet this governmental interest. Id.
Although Indiana Code Section 5-14-2-2 provides that “[c]riminal proceedings are presumptively open to attendance by the general public,” there is no comparable provision for civil proceedings. However, Indiana Trial Rule 72(B) provides that “[a]ll trials upon the merits shall be conducted in open court and so far as convenient in a regular courtroom in or outside the county seat.” According to the Rule, the judge may conduct “all other acts or proceedings” in chambers. Id.
Although the Iowa Supreme Court has not specifically addressed rights of access in civil matters, it is likely that an analysis of rights of access in civil matters would follow what has been employed by the court to analyze criminal proceedings. Further, the court’s website makes this broad statement about access: “As a general rule most trials and hearings are open to the public.” https://www.iowacourts.gov/for-the-public/judicial-branch-building-and-courthouse-tours.
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 Louisiana Constitution also provides a right of access to civil judicial proceedings. Article 1, § 22 states: “All courts shall be open.” The Louisiana Supreme Court has commented on the “strong societal interest in public trials.” Copeland v. Copeland, 930 So.2d 940 (La. 2006).
The Louisiana Supreme Court explicitly recognized this right of access in Plaquemines Parish Commission Council v. Delta Development Co., 472 So.2d 560, 566 (La. 1985). A newspaper intervened seeking access in a civil suit by the Parish against its former elected officials over millions of dollars of allegedly misappropriated mineral royalties. The Court stated: “The freedom of the press to report matters of public interest, and especially trial proceedings, is so great that it outweighs almost any governmental restraints.”
There is a well-established common law right of access to civil trials and many pre- and post-trial proceedings. See, e.g., Globe Newspaper Co., Inc. v. Clerk, 14 Mass. L. Rptr. 315 (2002) (the public’s right to access civil proceedings is grounded in the same common law principles as that of criminal proceedings); Boston Herald, Inc. v. Super. Ct., 658 N.E.2d 152, 155–56 & n.7 (Mass. 1995) (“The Supreme Court has not yet said whether the First Amendment protects public access to civil trials. However, free access to civil trials is well established under the common law.”); Globe Newspaper Co. v. Commonwealth, 556 N.E.2d 356, 360 (Mass. 1990) (“The tradition in the Commonwealth is that courts are open to the public. In the absence of a statute, a rule of court, or a principle expressed in an appellate opinion authorizing or directing a courtroom to be closed, the expectation is that courtrooms will be open.”). Further, “in some civil cases the public interest in access, and the salutary effect of publicity, may be as strong as, or stronger than, in most criminal cases.” Boston Herald, Inc., 658 N.E.2d at 155–56 & n.7 (citing Gannett Co. v. DePasquale, 443 U.S. 368, 386–387 & n.15, (1979)).
Where there is a presumption of openness to a certain type of judicial proceeding, Massachusetts courts apply the Supreme Court’s Waller factors to determine whether closure is appropriate: “ the party seeking to close the hearing must advance an overriding interest that is likely to be prejudiced,  the closure must be no broader than necessary to protect that interest,  the trial court must consider reasonable alternatives to closing the proceeding, and  it must make findings adequate to support the closure.” See, e.g., Commonwealth v. Martin, 629 N.E.2d 297, 302 (Mass. 1994) (quoting Waller v. Georgia, 467 U.S. 39, 48 (1984)). The court’s findings (factor four) “must be particularized and supported by the record.” Boston Herald, Inc., 658 N.E.2d at 155.
The Minnesota Supreme Court has not addressed whether the public has a constitutional right of access to civil court proceedings. It has, however, generally recognized that court proceedings and documents in both civil and criminal cases enjoy a presumption of openness and that “[f]or many centuries, both civil and criminal trials have traditionally been open to the public.” In re GlaxoSmithKline PLC, 699 N.W.2d 749, 755 (Minn. 2005) (citing Gannett Co., Inc., v. DePasquale, 443 U.S. 368, 386 n.15 (1979)).
The District of Minnesota is part of the Eighth Circuit, which recognizes a common law right of access to civil proceedings and records. Webster Groves Sch. Dist. v. Pulitzer Publ’g Co., 898 F.2d 1371, 1376 (8th Cir. 1990); In re Guidant Corp. Implantable Defribillators Products Liability Litig., 245 F.R.D. 632, 636 (D. Minn. 2007) (citing Webster Groves Sch. Dist., 898 F.2d at 1376); see also Capellupo v. FMC Corp., Nos. 4-85-1239, 4-86-945, 1989 U.S. Dist. LEXIS 4916, at *3 (D. Minn. Apr. 28, 1989) (“The recognized policy of public access, originally most prevalent in criminal proceedings, extends equally to civil matters.”) (citing Gannett Co., Inc. v. DePasquale, 443 U.S. 368, 385 n.15 (1979)). Access to both civil and criminal proceedings allows the public to monitor the functioning of the courts and “insur[es] quality, honesty, and respect” in the legal system. Capellupo, 1989 U.S. Dist. LEXIS 4916, at *3 (citing In re Continental Illinois Sec. Litig., 732 F.2d 1302, 1308-09 (7th Cir. 1984)).
Minnesota state district courts also have applied a common law right of access to civil proceedings and records. E.g., Williams v. Heins Mills & Olson PLC, 36 Media L. Rep. 1924, 1926 (Minn. Dist. Ct. Hennepin County 2008); Friederichs v. Kinney & Lange, 22 Media L. Rep. 2530, 2531-32 (Minn. Dist. Ct. Hennepin County 1994). In addition, Minnesota Rules of Civil Procedure 43.01 (“In all trials the testimony of witnesses shall be taken orally in open court”) and 77.02 (“All trials upon the merits shall be conducted in open court and so far as convenient in a regular courtroom”) provide for public access to civil court proceedings.
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.”
Although there are no court decisions on access to civil proceedings, statutory provisions require court proceedings to be open, with a few exceptions. Mental commitment proceedings and youth court proceedings involving a youth in need of care or supervision and dependent/neglect proceedings are closed.
“All judicial proceedings of all courts established in this state must be open to the attendance of the public unless otherwise specially provided by statute.” Neb. Rev. Stat. § 24-1001 (Reissue 2008).
The purposes section of the Nebraska Guidelines provides that:
[A]s a general principle it is the view of the judiciary of the State of Nebraska that proceedings should be open to the public at all times and only closed, in whole or in part, where evidence presented to the court establishes that by permitting all or part of the proceeding to remain open to the public, a party’s right to a fair trial will be substantially and adversely affected and there are no other reasonable alternatives available to protect against such substantial and adverse effect.
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.
The North Carolina Constitution confers a qualified right of access to civil court proceedings and records. See N.C. Const. Art. I, §18 (“All courts shall be open; every person for an injury done him in his lands, goods, person, or reputation shall have remedy by due course of law; and right and justice shall be administered without favor, denial, or delay.”).
The North Carolina Supreme Court has held that:
[A]lthough the public has a qualified [constitutional] right of access to civil court proceedings and records, the trial court may limit this right when there is a compelling countervailing public interest and closure of the court proceedings or sealing of documents is required to protect such countervailing public interest. In performing this analysis, the trial court must consider alternatives to closure. Unless such an overriding interest exists, the civil court proceedings and records will be open to the public. Where the trial court closes proceedings or seals records and documents, it must make findings of fact which are specific enough to allow appellate review to determine whether the proceedings or records were required to be open to the public by virtue of the constitutional presumption of access.
Virmani v. Presbyterian Health Servs. Corp., 350 N.C. 449, 476-77.
Adoption proceedings are closed under N.D.C.C. § 14-15-16(3) to the media and members of the public. Juvenile proceedings are closed under N.D.C.C. § 27-20-51. However, general information not identifying any juvenile, witness, or victim can be requested and released under N.D.C.C. § 27-20-51(7). N.D.C.C. § 25-03.1-43 provides that all records in connection with a mental health commitment proceeding are confidential.
Article I, section 10 of the Oregon Constitution, which provides that “[n]o court shall be secret, but justice shall be administered, openly and without purchase . . .” applies with equal force in criminal and civil contexts. State v. Kuhnhausen, 201 Or. 478, 512, 272 P.2d 225 (1954). Thus, all rules and rulings applicable in the criminal context should apply in the civil context as well.
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.
Rule 4-202.02 of the Utah Code of Judicial Administration states that “[c]ourt records are public unless otherwise classified by this rule.” Utah Code Jud. Admin. 4-202.02(1). Similarly, Rule 4-202.04(3) “requires judges to follow prescribed steps before granting a motion to seal a court record.” Supernova Media, Inc. v. Shannon’s Rainbow, LLC, 2013 UT 7, ¶ 56, 297 P.3d 599 (district court abused its discretion when sealing trial records by failing to make findings on record). “A judge must (1) ‘make findings and conclusions about specific records’; (2) ‘identify and balance the interests favoring opening and closing the record’; and (3) ‘if the record is ordered closed, determine there are no reasonable alternatives to closure sufficient to protect the interests favoring closure.’” Id. (Quoting Utah Code Jud. Admin. 4-202.04(3)). This “rule applies to both civil and criminal proceedings.” Id. Utah courts recognize that “civil trials, which are analogous to administrative fact-finding proceedings, have historically been open to the public.” Soc’y of Prof’l Journalists v. Sec’y of Labor, 616 F. Supp. 569, 575 (D. Utah 1985).
Unlike access to court records, there is no comprehensive rule or statute governing public access to court proceedings in Vermont. However, the Vermont Supreme Court has repeatedly recognized the “generally accepted practice as well as the public’s constitutional and common law right of access to court records and proceedings.” State v. Tallman, 148 Vt. 465, 472, 537 A.2d 422, 427 (Vt. 1987); see also Herald Ass’n v. Ellison, 138 Vt. 529, 533-534, 419 A.2d 323, 326, (Vt. 1980) (noting that, in Vermont, public judicial proceedings are the rule and closed ones the exception).
In the civil context, Virginia case law on public access is almost exclusively limited to questions concerning public access to records, not the proceedings themselves. See, e.g., Shenandoah Pub. House, Inc. v. Fanning, 235 Va. 253, 256, 368 S.E.2d 253, 254 (1988) (recognizing public’s right of access to records in civil proceedings while observing that “[t]he public’s right to attend and observe the conduct of a civil trial is not in issue in this appeal.”).
The public has a right of access to court proceedings, 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 this 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).
“The open courts provision of Article III, section 17 of the West Virginia Constitution guarantees a qualified constitutional right on the part of the public to attend civil court proceedings.” Syl. Pt. 4, State ex rel. Garden State Newspapers, Inc. v. Hoke, 205 W. Va. 611, 613, 520 S.E.2d 186, 188 (1999).
“The qualified public right of access to civil court proceedings guaranteed by Article III, Section 17 of the Constitution of West Virginia is not absolute and is subject to reasonable limitations imposed in the interest of the fair administration of justice or other compelling public policies. In performing this analysis, the trial court first must make a careful inquiry and afford all interested parties an opportunity to be heard. The trial court must also consider alternatives to closure. Where the trial court closes proceedings or seals records and documents, it must make specific findings of fact which are detailed enough to allow appellate review to determine whether the proceedings or records are required to be open to the public by virtue of the constitutional presumption of access.”
Syl. Pt. 6, Garden State Newspapers, 205 W. Va. at 613, 520 S.E.2d at 188.
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.