A. In general
The Tenth Circuit has noted that “[c]ourts have long recognized a common-law right of access to judicial records.” United States v. Apperson, 642 Fed. Appx. 892, 898 (10th Cir. 2016) (quoting Mann v. Boatright, 477 F.3d 1140, 1149 (10th Cir. 2007) (internal quotation marks omitted). The Court goes on to acknowledge that “[t]he right is an important aspect of the overriding concern with preserving the integrity of the law enforcement and judicial processes.” Id. at 899 (quoting United States v. Hickey, 767 F.2d 705, 708 (10th Cir. 1985) (internal quotation marks omitted). Further, “[c]onsistent with this presumption that judicial records should be open to the public, the party seeking to keep records sealed bears the burden of justifying that secrecy.” Id. (quoting United States v. Pickard, 733 F.3d 1297, 1302 (10th Cir. 2013) (internal quotation marks omitted)).
The Second Circuit has held that the First Amendment "does not distinguish between criminal and civil proceedings," but rather "protects the public against the government's arbitrary interference with access to important information." Newsday LLC v. Cty. of Nassau, 730 F.3d 156, 164 (2d Cir. 2013).
When a district court initially considers a request to seal a file or to approve or take other protective measures, it enjoys considerable discretion in determining whether good cause exists to overcome the presumption of open access to documents filed in our courts. Geller v. Branic Int'l Realty Corp., 212 F.3d 734, 738 (2d Cir. 2000) (quoting Martindell v. Int'l Tel. & Tel. Corp., 594 F.2d 291, 296 (2d Cir. 1979) (citation omitted). “However, after a district court has approved a sealing order, discretion of that breadth no longer exists.” Id. For example, “[a]lthough a district court has power to modify a protective order . . . , the required showing must be more substantial than the good cause needed to obtain a sealing order in the first instance.” Id.
“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) (citations omitted); see also Va. Dep't of State Police v. Wash. Post, 386 F.3d 567, 580 (4th Cir. 2004) (observing that in some instances, the public interest in access may be as strong as, or stronger than, in most criminal cases) (quoting Gannett Co. v. DePasquale, 443 U.S. 368, 386 n. 15 (1979)). “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).
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, the public’s rights of access under the First Amendment and the common law only attach to “judicial records.” 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). Assuming the document is a judicial record, the source 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.
Settlement of a case before a final adjudication on the merits does not, by itself, affect either the status of filings as judicial records or the public’s right of access thereto. Cross Creek Seed, Inc. v. Gold Leaf Seed Co., No. 1:16-cv-1432, 2018 WL 1116565, *3 (M.D.N.C. Feb. 26, 2018) (citing Bernstein v. Bernstein Litowitz Berger & Grossmann LLP, 814 F.3d 132, 140 (2d Cir. 2016)).
The fact that a document was exchanged pursuant to a protective order entered by the court is not dispositive of whether the document should be made available to the public if the document is subsequently filed with the court. Parties may not, by agreement, bypass the presumption of public access to judicial documents. See Cochran v. Volvo Grp. N. Am., LLC, 931 F. Supp. 2d 725, 729 (M.D.N.C. 2013) (citing In re Violation of Rule 28(D), 635 F.3d 1352, 1358 (Fed. Cir. 2011); Sensormatic Sec. Corp. v. Sensormatic Elecs. Corp., 455 F. Supp. 2d 399, 437-38 (D. Md. 2006)).
A request to file a redacted document is, in effect, a motion to seal invoking the substantive and procedural protections attendant to the public’s right of access. See Automation, Inc. v. Applied Robotics, Inc., 801 F. Supp. 2d 419, 424–25 (M.D.N.C. 2011) (collecting cases); see also Martin v. Am. Honda Motor Co., 940 F. Supp. 2d 277, 279 (D. S.C. 2013) (“Honda attempts to distinguish Rule 5.03(E) on the basis that this is a motion to redact, not a motion to seal. However, the result Honda seeks is the same—removal of any reference to the settlement amount in a filed document.”).
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.
The right of access to judicial records is greater than a right to the information in the records. Sec. & Exch. Comm’n v. Van Waeyenberghe, 990 F.2d 845, 848 (5th Cir. 1993). Therefore, merely providing the public with details and information about what transpired in court proceedings or settlements is not equivalent to allowing access to the actual records. Id.
The presumption of access to judicial records extends to civil cases, “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). “Documents that affect the disposition of federal litigation are presumptively open to public view, even if the litigants strongly prefer secrecy, unless a statute, rule, or privilege justifies confidentiality.” In re Specht, 622 F.3d 697, 701 (7th Cir. 2010) (citing Baxter International, Inc. v. Abbott Laboratories, 297 F.3d 544 (7th Cir.2002); Union Oil Co. of California v. Leavell, 220 F.3d 562 (7th Cir. 2000)); see also GEA Group AG v. Flex-N-Gate Corp., 740 F.3d 411, 419-20 (7th Cir. 2014); In re Continental Illinois Secs. Litig., 732 F.2d 1302, 1308 (7th Cir. 1984).
It has long been the rule in Alabama to allow public inspection of judicial records. Brewer v. Watson, 61 Ala. 310, 311 (1878). More than a century ago, the Supreme Court of Alabama held that “an inspection of the records of judicial proceedings kept in the courts of the country, is held to be the right of any citizen.” Id. at 311; see also Ex parte Balogun, 516 So. 2d 606, 612 (Ala. 1987) (holding that “the public generally has a right of reasonable inspection of public records required by law to be kept, except where inspection is merely out of curiosity or speculation or where it unduly interferes with the public official’s ability to perform his duties”). The public’s right to inspect court records derives from the “universal policy underlying the judicial systems of this country [that] secrecy in the exercise of judicial power . . . is not tolerable or justifiable.” Jackson v. Mobley, 157 Ala. 408, 411–12, 47 So. 590, 592 (1908).
Access to judicial records is also permitted by Alabama Code Section 36-12-40 (2019), which grants the public the right to inspect and copy “public writings.” “Public writings” has been interpreted by the Supreme Court of Alabama to include judicial records. Ex parte Balogun, 516 So. 2d 606, 613 (Ala. 1987); Stone v. Consol. Publ’g Co., 404 So. 2d 678, 681 (Ala. 1981) (interpreting a “public writing” to be “a record as is reasonably necessary to record the business and activities required to be done or carried on by a public officer so that the status and condition of such business and activities can be known by our citizens”).
Limitations of the public’s right to inspect “must be strictly construed and must be applied only in those cases where it is readily apparent that disclosure will result in undue harm or embarrassment to an individual, or where the public interest will clearly be adversely affected, when weighed against the public policy considerations suggesting disclosure.” Chambers v. Birmingham News Co., 552 So. 2d 854, 856 (Ala. 1989). The party refusing disclosure bears the burden of “proving that the writings or records sought are within an exception and warrant nondisclosure of them.” Chambers, 552 So. 2d at 856–57; Ex parte CUNA Mut. Ins. Soc’y, 507 So. 2d 1328, 1329 (Ala. 1987); Ex parte McMahan, 507 So. 2d 492, 493 (Ala. 1987). The Supreme Court of Alabama has held that the following types of records do not warrant disclosure: “recorded information received by a public officer in confidence, sensitive personnel records, pending criminal investigations, and records the disclosure of which would be detrimental to the best interests of the public.” Stone, 404 So. 2d at 681.
The Supreme Court of Alabama has held that a trial court should not seal court records except upon a written finding that the moving party has proved by clear and convincing evidence that the information contained in the document sought to be sealed: (1) constitutes a trade secret or other confidential commercial research or information; (2) is a matter of national security; (3) promotes scandal or defamation; or (4) pertains to wholly private family matters, such as divorce, child custody, or adoption; (5) poses a serious threat of harassment, exploitation, physical intrusion, or other particularized harm to the parties to the action; or (6) poses the potential for harm to third persons not parties to the litigation. Holland v. Eads, 614 So. 2d 1012, 1016 (Ala. 1993). If any one of these criteria are satisfied, then the trial court may seal the record, or any part of the record, before trial, during trial, or even after a verdict has been reached. Id. This approach limits, but does not abolish, the range of judicial discretion. Id. There is a presumption in favor of openness, which can be overcome only by clear and convincing evidence that an individual’s privacy interest (as set out above) rises above the public interest in access. Id.
Under Ariz. R. Supreme Ct. 123(d), “[a]ll case records are open to the public except as may be closed by law, or as provided in this rule. Upon closing any record the court shall state the reason for the action, including a reference to any statute, case, rule or administrative order relied upon.”
Pursuant to Ariz. R. Civ. P. 5.4, unless authorized by another statute, rule, or prior court order, a court may order that a document be sealed only, if it finds in a written order:
- an overriding interest exists that supports filing the document under seal and overcomes the right of public access to it;
- a substantial probability exists that the person seeking to file the document under seal (or another person) would be prejudiced if it is not filed under seal;
- the proposed restriction on public access to the document is no greater than necessary to preserve the confidentiality of the information subject to the overriding interest; and
- no reasonable, less restrictive alternative exists to preserve the confidentiality of the information subject to the overriding interest.
In Georgia, the presumption that the public will have access to all court records is incorporated in Uniform Superior Court Rule 21. “The aim of this presumption is to ensure that the public will continue to enjoy its traditional right of access to judicial records, except in cases of clear necessity. To this end, the presumptive right of access includes pre-judgment records in civil cases, and begins when a judicial document is filed.” Atlanta Journal v. Long, 258 Ga. 410, 413–14 (1988). See also Uniform Superior Court Rule 36.16, Electronic Filing at D (“An electronically filed document is presumed filed upon its receipt by the electronic filing service provider….”).
Rule 21 sets forth very specific and stringent procedures that must be followed before court records may be withheld from the public. See In re Motion of the Atlanta Journal-Constitution, 271 Ga. 436, 437 (1999) (“Superior courts may restrict or prohibit access to court records only if they do so in compliance with the requirements of Rule 21.”). The sealing of court files requires the submission of a motion setting forth the legal and evidentiary grounds for the relief sought. Second, the court must conduct a hearing on the motion where all interested parties, including the public, may be heard. Third, any order sealing court documents must identify the specific parts of the court’s file to which the order applies and delineated the “nature and duration” of the limits on public access. Finally, “[a]n order limiting access shall not be granted except upon a finding that the harm otherwise resulting to the privacy of a person in interest clearly outweighs the public interest.” Rule 21.1-21.2; see Atlanta Journal v. Long, 258 Ga. 410, 413 (1988). There is a “presumption that the public will have access to all court records,” which may be overridden only “in cases of clear necessity.” Id. at 413. The trial court must “weigh the harm to the privacy interest of that party from not sealing the pre-judgment documents against the harm to the public interest from sealing the documents. Before sealing the documents, the court must conclude that the former clearly outweighs the latter.” Id. at 414.
If the specific procedures articulated in Rule 21 are not complied with, then the order sealing documents must be reversed. See BankWest, Inc. v. Oxendine, 266 Ga. App. 771 (2004) (reversing an order sealing certain documents because the judge failed to make a finding of fact that privacy concerns outweighed the public interest in access); In re Motion of the Atlanta-Journal-Constitution, 271 Ga. 436, 436–38 (1999) (holding that if a trial court fails to hold a hearing on whether to seal a record or fails to make findings of fact concerning whether the privacy interests at stake outweigh the public’s interest in access to records, an order sealing a record must be reversed on appeal); Wall v. Thurman, 283 Ga. 533, 535 (2008) (“Because the trial court failed to hold a hearing and did not make findings of fact regarding the balancing of public and private interests, we conclude that the trail court erred in sealing the record.”).
Idaho Court Administrative Rule 32 governs “Records of the judicial department.” It lists which categories of documents are available for public inspection, as well as those deemed exempt.
In general, the following court records are available for examination, inspection and copying:
- Litigant/party indexes to cases filed with the court;
- Listings of new case filings, including the names of the parties;
- The chronological case summary of events;
- Calendars or dockets of court proceedings, including case numbers and captions, date and time of hearings, and location of hearings;
- Minutes, orders, opinions, findings of fact, conclusions of law, and judgments of a court and notices of the clerk of the court;
- Transcripts and recordings of all trials and hearings open to the public;
- Pleadings, motions, affidavits, responses, memoranda, briefs and other documents filed or lodged in a case file;
- Administrative or other records of the clerk, justice, judge, magistrate or staff of the court unless exempt from disclosure by statute, case law, or court rule; and
- A court record that has been offered or admitted into evidence in a judicial action or that a court has considered as evidence or relied upon for purposes of deciding a motion; except that, before final disposition by the trial court, access to any exhibit shall be allowed only with the permission of the custodian judge subject to any conditions set by the custodian judge and shall take place under the supervision of the office of the court clerk. The public shall not have access at any time to items of contraband or items that pose a health or safety hazard; for example, drugs, weapons, child pornography, toxic substances, or bodily fluids, without permission of the custodian judge.
Court records exempt from disclosure under this rule include:
- Documents and records to which access is otherwise restricted by state or federal law;
- Pre-sentence investigation reports, except as provided in Idaho Criminal Rule 32;
- Affidavits or sworn testimony and records of proceedings in support of the issuance of search or arrest warrant pending the return of the warrant;
- Unreturned search warrants;
- Unreturned arrest warrants, except bench warrants, or summonses in a criminal case, provided that the arrest warrants or summonses may be disclosed by law enforcement agencies at their discretion;
(A) An “arrest warrant” is a warrant issued for the arrest and detention of a defendant at the initiation of a criminal action.
(B) A “bench warrant” is a warrant issued for the arrest and detention of a defendant who has already appeared in a criminal action, and it would include a warrant issued for failure to appear at a hearing or trial, a warrant issued for violation of the conditions of release or bail, and a warrant issued for a probation violation.
- Unless otherwise ordered by the custodian judge, applications made and orders granted for the interception of wire, electronic or oral communications pursuant to Idaho Code § 18-6708, recordings of intercepted communications provided to the court, and reports made to the court regarding such interceptions under Idaho Code § 18-6708(7);
- Except as provided by Idaho Criminal Rules or statutes, records of proceedings and the identity of jurors of grand juries;
- Except as provided by the Idaho Criminal Rules or Idaho Rules of Civil Procedure, the names of jurors placed in a panel for a trial of an action and the contents of jury qualification forms and jury questionnaires for these jurors, unless ordered to be released by the presiding judge;
- Juvenile court records as herein after provided:
(A) All court records of Child Protective Act proceedings.
(B) All court records of Juvenile Corrections Act proceedings on a petition filed under I.C. § 20-510 pending an admit/deny hearing held pursuant to Rule 6, I.J.R. to permit the parties to request that the court consider, or permit the court to consider on its own motion, closing the records and files. Thereafter the court records shall be open unless the court enters an order exempting them from disclosure. At the admit/deny hearing the court shall determine whether the court records shall remain exempt from disclosure as provided in 1. and 2. below:
1. Court records of Juvenile Corrections Act proceedings brought against a juvenile under the age of fourteen (14), or brought against a juvenile fourteen (14) years or older who is charged with an act that would not be a felony if committed by an adult, shall be exempt from disclosure if the court determines by a written order in each case that the records should be closed to the public.
2. Court records of Juvenile Corrections Act proceedings brought against a juvenile fourteen (14)years or older who is charged with an act which would be a felony if committed by an adult, shall be exempt from disclosure if the court determines upon a written order made in each case that extraordinary circumstances exist which justify that the records should be confidential.
(C) In Juvenile Corrections Act cases filed on or after July 1, 2017, all court records of Juvenile Corrections Act proceedings on a petition filed under I.C. § 20-510 except as provided in 1, 2, and 3 below:
1. The court may release juvenile court records if the court finds, upon motion by the prosecuting attorney, interested party, or other interested persons, that the public’s interest in the right to know outweighs the adverse effect of the release of the records on the juvenile’s rehabilitation and competency development. In making this decision, the court may consider the following factors:
a. Age of the juvenile;
b. Seriousness of the offense;
c. Whether the offense deals with persons or property;
d. Prior record of the juvenile;
e. The juvenile’s risk to reoffend; and
f. The impact on the victim or victims.
2. The following individuals or entities may inspect juvenile court records without a court order unless otherwise prohibited by law:
a. Probation officers;
b. Law enforcement officers;
c. The Department of Juvenile Corrections;
d. The Department of Correction;
e. The Department of Health and Welfare pursuant to its statutory responsibilities in title 16, chapter 16; title 16, chapter 24; or title 20, chapter 5, Idaho Code.
3. The victim of misconduct is entitled to receive:
a. The name, address and telephone number of the juvenile offender involved;
b. the name of the juvenile offender’s parents or guardians, and their addresses and telephone numbers;
c. The petition, the decree, and orders of restitution;
d. Any other information as provided in title 19, chapter 53, Idaho Code.
(D) Notwithstanding any other provision of paragraph (g)(9) of this rule, reports prepared pursuant to I.C. § 20-520(1), and other records and reports described in paragraph (g)(17) of this rule are exempt from disclosure.
(E) Notwithstanding any other provision of paragraph (g)(9) of this rule, the court shall make available upon the written request of a superintendent or an employee of the school district authorized by the board of trustees of the school district, the facts contained in any records of a juvenile maintained under Chapter 5, Title 20, Idaho Code. If a request is made to examine records in courts of multiple districts, it shall be ruled upon by the Chief Justice.
- Mental commitment case records; provided, the court may disclose these records when consented to by the person identified or his or her legal guardian, or the parent if the individual is a minor. The court in its discretion may make such records available to the spouse, or the immediate family of the person who is the subject of the proceedings;
- Adoption records, except that an adopted person may obtain non-identifying medical information in all cases; the court may also in its discretion make information from the adoption records available, upon such conditions as the court may impose, to the person requesting the record, if the court finds upon written verification of a medical doctor a compelling medical need for disclosure;
- Records of proceedings to terminate the parent and child relationship under Chapter 20 of Title 16, Idaho Code, except that the child may obtain non-identifying medical information in all cases, and the court may also in its discretion make information from the records available, upon such conditions as the court may impose, to the person requesting the record, if the court finds upon written verification of a medical doctor a compelling medical need for disclosure;
- All records of proceedings relating to the consent required for abortion for minors brought pursuant to I.C. 18-609A(1) or (3);
- All records of proceedings relating to the judicial authorization of sterilization procedures pursuant to I.C. 39-3901;
- Documents filed or lodged with the court in camera;
- Protection order petitions and related records, maintained pursuant to either the domestic violence crime prevention act or chapter 79, title 18 of the Idaho Code, except orders of the court;
- Records maintained by a court that are gathered at the request or under the auspices of a court (other than records that have been admitted in evidence);
(A) to determine an individual’s need for counseling, rehabilitation, treatment or assistance with personal conflicts;
(B) to assist in assigning an appropriate disposition in the case, including the ADR screening report and screening reports prepared by Family Court Service Coordinators or their designees;
(C) to provide the court with a recommendation regarding the custody of minor children;
(D) to provide a court with a psychological evaluation of an individual;
(E) to provide annual or other accountings by conservators and guardians, except to interested parties as defined by Idaho law;
(F) to provide personal or identifying information on individuals for internal court use, including case information sheets filed pursuant to Idaho Rule of Civil Procedure 3(d) or Idaho Rule of Family Law Procedure 201, and victim information/restitution sheets.
- A reference list of personal data identifiers or an unredacted copy of a document filed pursuant to I.R.C.P. 3(d).
- All court filings, including attachments, in guardianship or conservatorship proceedings whether temporary or permanent, and in proceedings involving a protective arrangement under I.C. § 15-5-409, and whether for an adult, a minor, or a developmentally disabled person, except to interested persons as defined in section 15-1-201, Idaho Code, guardians ad litem, court visitors, or any monitoring entity as defined by Idaho law, or any attorney representing any of the foregoing; provided, however, the following shall not be exempt from disclosure:
(A) the register of actions for the case;
(B) letters of guardianship and letters of conservatorship, and any supplemental orders, decrees or judgments describing, limiting, or expanding the rights and duties of the guardian or conservator;
(C) any order by the court regarding bond by a conservator, and the conservator’s bond ;
(D) any order, decree, or judgment dismissing, concluding, or otherwise disposing of the case.
- The records in cases involving child custody, child support, and paternity, except that officers and employees of the Department of Health and Welfare shall be able to examine and copy such records in the exercise of their official duties. Other exceptions to this rule are that the register of actions shall be available to the public, and a redacted copy of any order, decree or judgment issued in the case shall be available to the public. However, no redacted copy of any order, decree or judgment must be prepared until there is a specific request for the document, in which case the document should be redacted in the manner specified in Idaho Rule of Civil Procedure 3(c)(1) (a)-(d). Provided further that any person may request that the court make other records in the case available for examination and copying. Any individual may make the request by filing a court-provided form. When the court receives such a request, it shall promptly review the records in the case and shall make the records available except for those records or portions of records that allege abuse, abandonment or neglect of a child, or which the court determines would inflict undue embarrassment to or put at risk a person referenced in the record who was a child at the time of the filing of the record, or which are exempt from disclosure under the other provisions of Supreme Court rules.
This subsection (g)(20) shall apply only to records in cases filed on or after July 1, 2012, and to records in cases in which a motion to modify an order, decree or judgment was filed on or after July 1, 2012.
- Records of judicial work product or drafts, including all notes, e-mail, memoranda or drafts prepared by a judge or a court-employed attorney, law clerk, legal assistant or secretary;
- Personnel records, application for employment and records of employment investigations and hearings, including, but not limited to, information regarding sex, race, marital status, birth date, home address, telephone number, applications, testing and scoring materials, grievances or complaints against an employee, correspondence, and performance evaluations; provided the following are not exempt from disclosure: a public official’s public service or employment history, classification, pay grade and step, longevity, gross salary and salary history, status, workplace, employing agency, and any adverse official action taken against an employee as a result of a grievance or complaint (except a private letter of reprimand), and after such action is taken (except when the action is a private letter of reprimand), the record of any investigation and hearing leading to the action;
- Applications, testing and scoring to be included on a court maintained roster;
- Computer programs and related records, including but not limited to technical and user manuals, which the judicial branch has acquired and agreed to maintain on a confidential basis;
- Records maintained by the state law library that link a patron’s name with materials requested or borrowed in the patron’s name with a specific subject about which the patron has requested information or materials;
- Allegations of attorney misconduct received by the Idaho State Bar and records of the Idaho State Bar relating to attorney discipline, except where confidentiality is waived under the Idaho Bar Commission Rules;
- All records relating to applications for permission to take the Idaho bar examination or for admission to practice as exempted from disclosure in the Idaho Bar Commission Rules;
- All records and records of proceedings, except the identity of applicants for appointment to judicial office, of the Idaho Judicial Council or any District Magistrates Commission pertaining to the appointment, performance, removal, disability, retirement or disciplining of judges or justices. Provided, however, that the record of a disciplinary proceeding filed by the Judicial Council in the Supreme Court loses its confidential character upon filing;
Rulings by the Kansas Supreme Court have favored openness of court records generally. Moreover, a presumption of openness applies to court records, regardless of whether they are criminal or civil, under the Kansas Open Records Act, K.S.A. 45-215–223, as implemented by the Kansas Judicial Branch. See Kansas Judicial Branch, Administrative Order No. 156, Administration of the Kansas Open Records Act, http://www.kscourts.org/kansas-courts/supreme-court/administrative-orders/Admin-order-156.pdf.
Also, Kansas law allows a court to seal or redact records only after finding that a safety, property, or privacy interest “outweighs the strong public interest” in having access to information. K.S.A. 60-2617(d).
The Kansas Judicial Branch website includes links to court records in civil, as well as criminal, cases. The records are accessible under these headings:
Recent and Published Opinions, Appellate Case Inquiry System, Search District Court Records by County ($ Fee $), Supreme Court Docket and Court of Appeals Docket. See Featured Links, Kansas Judicial Branch, http://www.kscourts.org.
“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 Communications, Inc., 435 U.S. 589, 597 (1978) (footnote omitted).
An individual seeking to inspect a public record need not have a cognizable interest in the record. Logan v. Miss. Abstract Co., 190 Miss. 479, 200 So. 716, 719 (1941) (“A mere reading of these granted powers shows clearly that the appellee has the right to inspect and make copies of all the land records in the entire state of Mississippi and to compile independent abstracts for future use. Denial of that right by counties would nullify the explicit powers granted it by the state.”).
The Nevada Rules for Sealing and Redacting Court Records promulgated by the Nevada Supreme Court provide that “[a]ll court records in civil actions are available to the public, except as otherwise provided in these rules.” SRCR 1(3). For purposes of this rule, the term “court record” includes, but is not limited to any document, information, exhibit, or other thing that is maintained by a court in connection with a judicial proceeding; and any index, calendar, docket, register of actions, official record of the proceedings, order, decree, judgment, minute, and any information in a case management system created or prepared by the court that is related to a judicial proceeding. SRCR 2(2).
The Nevada Supreme Court has also recognized that a common law right to inspect public records exists under certain circumstances. See, e.g., Reno Newspapers, Inc. v. Gibbons, 127 Nev. 873 (2011); Howard v. State, 128 Nev. 736 (2012); Civil Rights for Seniors v. AOC, 129 Nev. 752 (2013).
The Nevada Supreme Court has not decided whether the judiciary is a governmental entity subject to the Nevada Public Records Act. See Civil Rights for Seniors v. AOC, 129 Nev. 752 (2013).
Pursuant to Rule 1-079 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:
“(1) proceedings commenced under the Adoption Act, Chapter 32A, Article 5 NMSA 1978. The automatic sealing provisions of this subparagraph shall not apply to persons and entities listed in Subsection A of Section 32A-5-8 NMSA 1978;
(2) proceedings to detain a person commenced under Section 24-1-15 NMSA 1978;
(3) proceedings for testing commenced under Section 24-2B-5.1 NMSA 1978;
(4) proceedings commenced under the Adult Protective Services Act, Sections 27-7-14 to 27-7-31 NMSA 1978, subject to the firearm-related reporting requirements in Section 34-9-19 NMSA 1978;
(5) proceedings commenced under the Mental Health and Developmental Disabilities Code, Chapter 43, Article 1 NMSA 1978, subject to the disclosure requirements in Section 43-1-19 NMSA 1978 and the firearm-related reporting requirements in Section 34-9-19 NMSA 1978;
(6) wills deposited with the court pursuant to Section 45-2-515 NMSA 1978 that have not been submitted to informal or formal probate proceedings. The automatic sealing provisions of this subparagraph shall not apply to persons and entities listed in Section 45-2-515 NMSA 1978;
(7) proceedings commenced for the appointment of a person to serve as guardian for an alleged incapacitated person under Chapter 45, Article 5, Part 3 NMSA 1978, as provided in Rule 1-079.1 NMRA;
(8) proceedings commenced for the appointment of a conservator under Chapter 45, Article 5, Part 4 NMSA 1978, as provided in Rule 1-079.1 NMRA;
(9) 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; and
(10) proceedings commenced under the Assisted Outpatient Treatment Act, Chapter 43, Article 1B NMSA 1978, subject to the disclosure requirements in Section 43-1B-14 NMSA 1978 and the firearm-related reporting requirements in Section 34-9-19 NMSA 1978.”
Rule 1-079(C) NMRA. A court order must establish that:
“(a) the existence of an overriding interest that overcomes the right of public access to the court record;
(b) the overriding interest supports sealing the court record;
(c) a substantial probability exists that the overriding interest will be prejudiced if the court record is not sealed;
(d) the proposed sealing is narrowly tailored; and
(e) no less restrictive means exist to achieve the overriding interest.”
Rule 1-079(D) NMRA. The order shall require the sealing of the record only to the extent necessary. Id. The order shall further specify who is authorized to have access to the sealed court record and a date or event upon which it expires or shall explicitly state that the order remains in effect until further order of the court. The order shall specify any person or entity entitled to notice of any future motion to unseal the court record or modify the sealing order. Id.
Under both the common law and the First Amendment, the right of access applies to civil proceedings and records. See, e.g., PA Child Care LLC v. Flood, 887 A.2d 309, 312 (Pa. Super. 2005) (rejecting effort to seal record in civil case and explaining that “Pennsylvania has a mandate for open and public judicial proceedings both in the criminal and civil settings.”). The Pennsylvania Superior Court has held for many years that “[t]he existence of a common law right of access to judicial proceedings and inspections of judicial records is beyond dispute.” R.W. v. Hampe, 626 A.2d 1218, 1220 (Pa. Super. 1993).
The Vermont Rules for Public Access to Court Records (the “Rules”) — govern the rights of access by the public to judicial 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).
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).
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. 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.
In 2019, the Vermont Supreme Court re-affirmed that under the Rules “all case records are public records presumptively subject to public disclosure unless an exception applies.” In re Vsp-Tk/1-16-18 Shooting Gray TV, 2019 VT 47 ¶ 9 (July 19, 2019). There, the State conceded that none of the exceptions expressly applied and the Court rejected the State’s attempt to infer a categorical prohibition against disclosure of records relating to inquest proceedings because they are similar to other enumerated exceptions in the Rules regarding search warrants or affidavits of probable cause. Id. at ¶¶ 23-25.
The Reporter’s Notes indicate that the Rules “do not govern access to court proceedings, a subject not now covered by a comprehensive rule or statute” . . . but “[i]f the public has access to a proceeding, it has access to a record of the proceeding, unless that record is specifically exempted from disclosure.” Vt. Pub. Acc. Ct. Rec. Rule 1.
See Wis. Stat. § 19.35(1)(a):
Except as otherwise provided by law, any requester has a right to inspect any record. Substantive common law principles construing the right to inspect, copy or receive copies of records shall remain in effect.
See Wis. Stat. § 19.32(1): “'Authority' means any of the following having custody of a record: … any court of law …."
See C.L. v. Edson, 140 Wis. 168, 409 N.W.2d 417 (Wis. App. 1987):
We conclude that due to the amendment [to Wis. Stat. § 19.32(1)], the legislature intended the courts to apply the ch. 19 balancing test to questions involving disclosure of court records.
We first stress that public records, including court documents, are subject to a strong presumption favoring their disclosure. … In order to overcome the presumption favoring disclosure, under the Hathawaytest, the original parties must show that public interests favoring secrecy outweigh those favoring disclosures.