A. In general
“It is well settled that the public and press have a qualified right of access to judicial documents and records filed in civil and criminal proceedings.” Doe v. Pub. Citizen, 749 F.3d 246, 265 (4th Cir. 2014) (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.”).
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;
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).