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 Eleventh Circuit has held that there is a common law right of access, which establishes a general presumption that civil actions should be conducted publicly and includes the right to inspect and copy public records and documents. F.T.C. v. AbbVie Prods. LLC, 713 F.3d 54, 62 (11th Cir. 2013) (citing Chicago Tribune Co. v. Bridgestone/Firestone, Inc., 263 F.3d 1304, 1311 (11th Cir. 2001)).
For example, in Brown v. Advantage Engineering, the Eleventh Circuit held that where pleadings, motions, and evidence are filed with the court, they are open to the public, and absent a court's decision, after weighing competing interests, that the record should be sealed, the common law presumption in favor of access prevails. 960 F.2d 1013, 1016 (11th Cir. 1992). This rule prevails even where "the sealing of the record is an integral part of a negotiated settlement between the parties.” Id.
In order to withhold a judicial record from the public, an Eleventh Circuit court will first employ a balancing test that weighs the competing interests of the parties to determine whether there is a good cause to deny the public the right to access the document. Id. (citing Chicago Tribune Co., 263 F.3d at 1312).
“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).
The First Circuit has held that the “presumptively paramount right of the public to know” the content of judicial records in civil cases may be overcome for “only the most compelling reasons.” Federal Trade Comm’n. v. Standard Fin. Mgmt. Corp., 830 F.2d 404, 408 n.4, 410 (1st Cir. 1987); In re Providence Journal Co., Inc.,293 F.3d 1, 13, n.5 (1st Cir. 2002) (“[T]he common-law right of access extends to judicial records in civil proceedings.”).
“Decisions on the sealing of judicial documents require a balancing of interests, although the scales tilt decidedly toward transparency. The starting point must always be the common-law presumption in favor of public access to judicial records.” Nat’l Organization for Marriage v. McKee, 649 F.3d 34, 70 (1st Cir. 2011). “The presumption . . . favors openness, and a court need make no finding, let alone one of ‘true necessity,’ in order to make the proceedings and documents in a civil trial public. Instead, it is the party seeking to keep documents sealed who must make a showing sufficient to overcome the presumption of public access.” Id. at 71.
The First Circuit has ruled that “relevant documents, which are submitted to, and accepted by, a court of competent jurisdiction in the course of adjudicatory proceedings, become documents to which the presumption of public access applies.” Standard Fin. Mgmt. Corp., 830 F.2d at 409. “Once . . . submissions come to the attention of the district judge, they can fairly be assumed to play a role in the court’s deliberations.” Id. Whether the court actually relies on specific information submitted to it when making a decision does not matter for purposes of the presumption. See United States v. Kravetz, 706 F.3d 47, 58-59 (1st Cir. 2013). The First Circuit has “explicitly rejected an approach to public access that would turn on whether the documents at issue actually played a role in the court’s deliberations.” Id.
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.
“The courts of this country recognize a general right to inspect and copy public records and documents, including judicial records and documents.” Nixon v. Warner Commc’ns, Inc., 435 U.S. 589, 597 (1978). Indeed, the Third Circuit has found that in both civil and criminal cases, “the existence of a common law right of access to . . . inspect judicial records is beyond dispute.” Publicker Indus. v. Cohen, 733 F.2d 1059, 1066 (3d Cir. 1984).
The Court generally recognizes a common law right of access to judicial records, though it is not without limits. See In re Cendant Corp., 260 F.3d 183, 192 (3d Cir. 2001). The strength of the public’s interest in the suit—for example, if it involves public officials—weighs in favor of disclosure. See Shingara v. Skiles, 420 F.3d 301, 307 (3d Cir. 2005); see also In re Avandia Mktg., Sales Practices & Prods. Liabl. Litig., 924 F.3d 662, 677–78 (3d Cir. 2019). However, even strong public importance cannot overcome certain privacy interests, such as those of a woman who alleged that she lost her job because she had an abortion, which was protected under the Pregnancy Discrimination Act. See Doe v. C.A.R.S. Protection Plus, Inc., 527 F.3d 358, 371 (3d Cir. 2008) (upholding without discussion the district court’s decision to seal case).
The strong common law presumption of access “does not permit the routine closing of judicial records to the public.” Miller v. Ind. Hosp., 16 F.3d 549, 551 (3d Cir. 1994). A “party seeking to seal any part of a judicial record bears the heavy burden of showing that ‘the material is the kind of information that courts will protect’ and that ‘disclosure will work a clearly defined and serious injury to the party seeking closure.’” Id. (quoting Publicker, 733 F.2d at 1071). Such injury must be shown with specificity. Cendant, 260 F.3d at 194. “Broad allegations of harm, bereft of specific examples or articulated reasoning, are insufficient.” Id.; see also Avandia, 924 F.3d at 679 (noting that courts may not seal judicial records that may cause “[m]ere embarrassment” because this “is insufficient to overcome the strong presumption of public access inherent in the common law right”); Publicker, 733 F.2d at 1074 (distinguishing the need to protect trade secrets, which may overcome the right of access, from the purported need to protect “bad business practices,” which may not overcome the right of access).
“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 open records doctrine is premised on allowing the public to inspect judicial records to increase public confidence in and understanding of the judicial system, and diminish the possibility of injustice, incompetence, perjury, and fraud.” Signature Mgmt. Team, LLC, v. Doe, 876 F.3d 831, 837 (6th Cir. 2017) (citations omitted). Consistent with this principle, the Sixth Circuit has taken a firm stance that sealing court records requires much more than just the agreement of the parties. “Only the most compelling reasons can justify non-disclosure of judicial records.” In re Knoxville News-Sentinel Co., 723 F.2d 470, 476 (6th Cir. 1983) (citations omitted). The court has even gone so far as to raise the issue sua sponte on at least three occasions. In re Nat’l Prescription Opiate Litig., 2019 U.S. App. LEXIS 18502, at *42 (6th Cir. 2019); Beauchamp v. Fed. Home Loan Mortg. Corp., 658 F.App’x 202, 207 (6th Cir. 2016) (unpublished); Brown & Williamson Tobacco Corp. v. FTC, 710 F.2d 1165, 1176 (6th Cir. 1983).
In 2016 and 2017, the Sixth Circuit issued multiple decisions that emphasized the high standards that must be set when deciding whether to seal judicial records. The court’s decision in Shane Group v. Blue Cross Blue Shield, 825 F.3d 299 (6th Cir. 2016), exemplifies these cases.
In Shane Group, the Court addressed the difference between protective orders during discovery and sealing judicial records: “there is a stark difference between so-called ‘protective orders’ entered pursuant to the discovery provisions of Federal Rule of Civil Procedure 26, on the one hand, and orders to sealed court records, on the other. … ‘Secrecy is fine at the discovery stage, before the material enters the judicial record.’” 825 F.3d at 305 (quoting Baxter Int’l Inc. v. Abbott Labs., 297 F.3d 544, 545 (7th Cir. 2002). But the calculus changes “when the parties place material in the court record.” Id. (citing Baxter, 297 F.3d at 545). The standard for sealing is “vastly more demanding” than Rule 26’s good cause standard for protective orders. Id. at 307.
The reason documents in the court record are different than those exchanged between parties is because “the public has a strong interest in obtaining the information in the court record.” Id. at 305 (citing Brown & Williamson, 710 F.2d at 1180). This public interest has multiple justifications. First, the public has an interest in the result of litigation. Id. (citing Brown & Williamson, 710 F.2d at 1179). Second, the public may be interested in both the result and “the conduct giving rise to the case” because “‘secrecy insulates the participants, masking impropriety, obscuring incompetence, and concealing corruption.’” Id. (citing Brown & Williamson, 710 F.2d at 1179). And, finally, “the public is entitled to assess for itself the merits of judicial decisions,” which it can only do if it has access to information, including judicial records relied upon by the court in making its decisions. Id. (citing Brown & Williamson, 710 F.2d at 1181).
Judicial records are presumptively open and the party seeking closure must overcome the presumption in favor of openness and this burden “is a heavy one.” Id. (citations omitted). “‘Only the most compelling reasons can justify non-disclosure of judicial records.’” Id. (quoting In re Knoxville News-Sentinel Co., 723 F.2d 470, 476 (6th Cir. 1983)). This burden grows with the public interest in the litigation: “the greater the public interest in the litigation’s subject matter, the greater the showing necessary to overcome the presumption of access.” Id. (citing Brown & Williamson, 710 F.2d at 1179). The court held that in class action cases, for example, the standards for sealing court records “‘should be applied … with particular strictness.’” Id. (quoting In re Cendant Corp., 260 F.3d 183, 194 (3d. Cir. 2001)).
Those seeking closure of court records must do more than broadly allege a harm or interest to justify the relief they seek. “The proponent of sealing ... must ‘analyze in detail, document by document, the propriety of secrecy, providing reasons and legal citations.’” Id. at 305–06 (quoting Baxter, 297 F.3d at 548). Mere platitudes are patently insufficient to justify closure, instead, a proponent of sealing must show with specificity “that ‘disclosure will work a clearly defined and serious injury[.]’” Id. at 308.
Similarly, “a district court that chooses to seal court records must set forth specific findings and conclusions ‘which justify nondisclosure to the public,’” even if the parties agree on the requested sealing and no one is advocating for access. Id. at 306 (quoting Brown & Williamson, 710 F.2d at 1176). A court’s reasoning in favor of closure should include “why the interests in support of nondisclosure are compelling, why the interests supporting access are less so, and why the seal itself is no broader than necessary…” Id. (citing Brown & Williamson, 710 F.2d at 1176); see also In re S. Ohio Corr. Facility, 24 F. App’x 520 (6th Cir. 2001) (“Iit is important that the reviewing court be given a basis for determining whether the closure order is essential to preservation of the interest articulated by the district court … and is ‘narrowly tailored to serve that interest.’” (quoting Press-Enterprise Co. v. Superior Court, 478 U.S. 1, 9 (1986))). Failure to do so, by itself, is sufficient for the Sixth Circuit to vacate the sealing order. Shane Grp., 825 F.3d at 306 (citing Brown & Williamson, 710 F.2d at 1176). Even when there are compelling interests sufficiently compelling to overcome the heavy presumption in favor of access, closure orders must be narrowly tailored to serve that justification for closure. Id. at 305 (citing Press-Enterprise Co. v. Superior Court, 464 U.S. 501, 509–11 (1984).
Where there is a finding of a compelling interest, the court will still balance that interest against the public interest in access to the documents. For example, in a recent unpublished opinion, the court explained that while a finding that what is sought to be sealed is a trade secret will generally be sufficient to carry the party’s burden, “even if a district court finds that a trade secret exists, it must still determine whether public interest outweighs the moving party’s interests in protecting their trade secret.” Kondash v. Kia Motors Am., Inc., 767 F. App’x 635, 638 (6th Cir. 2019). And “[t]he presumption in favor of public access is strong when public safety is implicated.” Id. at 637; see also id. (“the interests of public safety will often outweigh any confidentiality interests that might be implicated” (quoting NHSTA Enforcement Guidance Bulletin 2015-01: Recommended Best Practices for Protective Orders and Settlement Agreements in Civil Litigation, 81 Fed. Reg. 13026-02, 13027 (March 11, 2016))). This strong public interest in favor of access is buttressed even further when it is part of a class action case. Id. at *5–6 (citations omitted).
The Sixth Circuit has also held that seeking access to sealed court records is not “the kind of argument that can be waived.” Shane Grp., 825 F.3d at 307; see also Rudd Equip. Co. v. John Deere Constr. & Forestry Co., 834 F.3d 589 (6th Cir. 2016) (rejecting a waiver argument raised by the proponent of sealing); but see Meyer Goldberg Inc. v. Fisher Foods, 823 F2d 159 (6th Cir. 1987) (explaining that permissive intervention under Federal Rule of Civil Procedure 24(b) must be timely).
The Sixth Circuit has noted that the presumption of openness applies to a broad swath of court records, including “pleadings, motions for class certification, evidentiary motions, and exhibits accompanying the parties’ filings,” among others. In re Nat’l Prescription Opiate Litig., 2019 U.S. App. LEXIS, at *43 (6th Cir. 2019) (citing Shane Grp., 825 F3d at 304–05).
But, the court has held in an unpublished opinion that “contemporaneous and immediate access to court records” is not mandated by the First Amendment “absent a case-by-case finding of a compelling state interest using narrowly tailored means.” Barth v. City of Macedonia, 187 F.3d 634 (table), 1999 U.S. App. LEXIS 13653, at *3 (6th Cir. 1999) (unpublished). Rather, “content neutral restrictions on access to court records” are valid “if ‘it furthers an important or substantial governmental interest; if the government interest is unrelated to the suppression of free expression; and if the incidental restriction … is not greater than is essential to the furtherance of that interest.’” Id. at *3–4 (quoting United States v. O’Brien, 391 U.S. 367, 377 (1968)). The governmental interest in that case was “to protect privileged and inappropriate court documents from publication.” Id. at *4. Based on this asserted governmental interest, the court found that the city’s twenty-four hour delay in producing the requested court records was constitutional. Id. at *4–5.
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).
The Supreme Court has stated that “the courts of this country recognize a general right to inspect and copy public records and documents, including judicial records and documents.” Nixon v. Warner Communications, Inc., 435 U.S. 589, 597 (1978).
The Eighth Circuit has acknowledged that “the common-law right of access applies to judicial records in civil proceedings,” although whether a First Amendment right of access also applies is an open question in this Circuit. IDT Corp. v. eBay, 709 F.3d 1220, 1222 (8th Cir. 2013). In particular, the Eighth Circuit has recognized a “modern trend in federal cases” that “pleadings in civil litigation” other than discovery motions and their accompanying exhibits are “presumptively public, even when the case is pending before judgment” Id.
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. Any order sealing records must contain the court’s written findings, in compliance with Holland, that clear and convincing evidence supports closure. Ex parte Gentry, 228 So. 3d 1016, 1025 (Ala. Civ. App. 2017).
Unlike access to records of the executive and legislative branches, which has traditionally been governed primarily by statutes such as the Public Records Act, cases interpreting the PRA, and common law, there is a constitutional right of access to judicial records. This First Amendment right of access to judicial proceedings and records has become firmly established over the past several decades. See, e.g., Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555 (1980) (order excluding press and public from criminal trial violates First Amendment); Press-Enterprise v. Superior Ct., 464 U.S. 501 (1984) (“Press-Enterprise I”) (order sealing transcript of voir dire proceedings in death case violates First Amendment right of access); Press-Enterprise Co. v. Superior Ct., 478 U.S. 1 (1986) (“Press-Enterprise II”) (access right extends to preliminary proceedings); Kamakana v. Honolulu, 447 F.3d 1172, 1182 (9th Cir. 2006) (affirming trial court ruling ordering the release of documents sealed under a protective order that were attached to dispositive motions, in a suit brought by a police detective against the city alleging retaliation for his whistleblower activities); Ctr. for Auto Safety v. Chrysler Grp., LLC, 809 F.3d 1092, 1102 (9th Cir. 2016) (presumptive First Amendment right of access to sealed documents, rejecting binary dispositive/non-dispositive distinction in favor of a broader rule that requires release of sealed documents that are simply “more than tangentially related” to the merits of the case, unless compelling reasons require secrecy). There are no cases expressly involving a right of access to judicial records under the Alaska Constitution, which could be interpreted to provide greater constitutional protection, but not to limit the protections afforded by the First Amendment of the U.S. Constitution.
Apart from the constitutional and common law rights of access, access to both case-specific judicial documents and administrative records of the court system is primarily governed by Administrative Rules 37.5 through 37.8 of the Alaska Rules of Court, which state that they are “adopted pursuant to the inherent authority of the Alaska Supreme Court.” These rules state that records are presumptively open to the public, subject to specified exceptions and restrictions, and do not generally differentiate between the openness of civil and criminal records and are addressed in more detail in subsection VI.I below (Access to civil court records/Other civil court records issues). It is possible that the application of the general public records statute to the court system might be limited by the separation of powers doctrine. In one 1988 superior court case involving access to search warrant records, the issue was raised, but not resolved. See, State v. Sackett, 1JU-587-1036 Cr. (Alaska Super. Ct. 1st Jud. Dist.). A 1994 revision to the OMA expressly excludes the court system and legislative branch from the scope of that Act. However, the Public Records Act contains no such exclusion, and instead has several sections that assume it encompasses access to legislative and judicial records.
Any request to limit access must be made in writing to the court and served on all parties to the case unless otherwise ordered. A request to limit access, the response to such a request, and the order ruling on such a request must be written in a manner that does not disclose non-public information, are public records, and shall not themselves be sealed or made confidential. Alaska. Admin. R. 37.6(d).
In Benjamin S. v. Stephenie S., 2018 WL 794523 (Alaska Feb. 7, 2018), the Supreme Court upheld the trial court’s refusal, in a child custody proceeding following a divorce, to “expunge” from the record allegations of domestic violence against the husband. (This unpublished opinion replaces an earlier, 2017, Supreme Court opinion that the Court issued in November 2017, and then withdrew it, changing only an unrelated paragraph.) Though Benjamin’s objections were based more broadly on Admin. R. 37.5 through 37.8 and 40 in the trial court, on appeal he relied on Admin. R. 37.6, which provides for courts to “limit access to public information in an individual case record.” The Supreme Court observed, “Parties are entitled and expected to be adverse in litigation, and litigants do not have a right to have claims or statements with which they disagree removed from the record. The superior court rightly explained to Benjamin that Administrative Rule 37.6(b) was not intended to ‘assuage the emotional distress that a domestic relations litigant in a high conflict case might experience.’” Id. at *7. It also noted Benjamin's failure to specify how he would be harmed or even what specific allegations would cause such harm. “‘In determining whether to limit access to a case file under Alaska Administrative Rule 37.6, trial courts must weigh the public interest in disclosure against any legitimate interest in confidentiality.’” Id. at 7–8. The Court held that the trial court had not abused its discretion in deciding that Benjamin had not made a sufficient showing to justify removing anything from the record.
Compare Timothy W. v. Julia M., 403 P.3d 1095, 1103–04 (Alaska 2017), in which the Alaska Supreme Court upheld a challenge by a litigant to the trial judge’s refusal to close certain post-dissolution proceedings to modify child visitation provisions. The father, an attorney, appealed the judge’s ruling under Admin. R. 37.6(b), claiming “the trial judge's comments ... would damage his ability to practice law in this community, and impact his ability to earn a living.” The trial judge had initially limited public access to the record in the case, but found that this had “been a license for bad behavior by both [parties].” Id. The trial judge considered arguments for and against closure. The court emphasized that its foremost concern was whether the children would be hurt by making the record public, and it noted that neither party had been able to explain how that might occur. It observed that “mudslinging happens all the time in custody disputes” and that if it closed the record every time it heard arguments along those lines then courts “wouldn't have any open proceedings.” Id. The Supreme Court found that the trial court considered the mandated factors and did not consider any improper factors, and held that the trial court did not abuse its discretion by electing not to close the hearings in question.
In an unpublished opinion in Zachary v. Coon, 1998 WL 34347957 (Alaska Feb. 25, 1998), the Alaska Supreme Court addressed questions about sealing portions of the record to protect a juvenile in a civil lawsuit seeking damages for sexual abuse in which the minor was not a party. The Supreme Court found that a balancing test was sufficient to protect the interests of the minor, without stretching statutory exceptions to fit the facts of the case. The Court reviewed various statutes and rules that the parties argued embodied a public policy in favor of sealing records where a minor's interest in non-disclosure is at risk. However, the Court noted that this case— a suit between adults for acts that did not directly involve the minor—did not concern the same kind of issues as those the cited statutes address. And, it observed that when the court has determined that no express exception to the public records act applies, “the public interest in disclosure” is balanced against “the privacy and reputational interests of the affected individuals together with the government's interest in confidentiality.” Id. at *3 (quoting Municipality of Anchorage v. Anchorage Daily News, 794 P.2d 584, 590 (Alaska 1990).
In federal court, ex parte motions and motions to file documents under seal are governed by D. Alaska Local Civil Rule 7.3. At the suggestion of the press, the title of Local Rule 7.3 was recently changed from “Common Motions” to “Specific Motions,” to underscore that motions for ex parte communications with the court, and for sealed pleadings, ought not to be considered “common” motions like a number of other motions grouped together with them in Rule 7.3.
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 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.
Courts routinely have applied NBC Subsidiary to records in civil cases. As one Court of Appeal explained, “[t]he constitutional right of public access to, and the presumption of openness of, documents submitted at trial or as a basis for adjudication in ordinary civil cases are designed to protect the integrity of our judicial system. Public access to such documents plays an important and specific structural rule in the conduct of civil proceedings.” McNair v. Nat’l Collegiate Athletic Ass’n, 234 Cal. App. 4th 25, 39, 183 Cal. Rptr. 3d 490 (2015) (internal citations omitted). “Substantive courtroom proceedings in ordinary civil cases, and the transcripts and records pertaining to these proceedings are presumptively open.” Id. at 31 (citations and internal quotations omitted). Openness, however, “is a presumption; it is not an absolute.” Id.
California Rules of Court, Rules 2.550 and 2.551, provide the procedures to obtain a sealing order. Courts may seal records only if they hold a hearing and expressly find, on the record or in a written order, that sealing is warranted under the NBC Subsidiary four-factor test. 20 Cal. 4th at 1218. The parties’ agreement to seal is insufficient. See H.B. Fuller Co. v. Doe, 151 Cal. App. 4th 879, 891, 60 Cal. Rptr. 3d 501 (2007) (reversing sealing based on parties’ stipulation). See also In re Marriage of Nicholas, 186 Cal. App. 4th 1566, 1568-1569, 113 Cal. Rptr. 3d 629 (2010) (constitutional right of access applies to family court cases; restrictions to protect children’s privacy must meet “overriding interest” standard); In re Marriage of Burkle, 135 Cal. App. 4th 1045, 1063, 37 Cal. Rptr. 3d 805 (2006) (same). But see In re Marriage of Candiotti, 34 Cal. App. 4th 718, 722, 724, 40 Cal. Rptr. 2d 299 (1995) (sealing personal information, driving records and criminal history where dissemination would harm children); Oiye v. Fox, 211 Cal. App. 4th 1036, 1068-1070, 151 Cal. Rptr. 3d 65 (2012) (sealing medical records of alleged victim of sexual molestation).
The First Amendment presumption of openness does not “apply to discovery motions and records filed or lodged in connection with discovery motions or proceedings.” Mercury Interactive Corp. v. Klein, 158 Cal. App. 4th 60, 68, 70 Cal. Rptr. 3d 88 (2007). That Court explained that “[p]ublic access to a discovery document that is not considered or relied on by the court in adjudicating any substantive controversy does nothing” to promote the rationales for access to civil court records. Id. at 96; see also id. at 105 (finding no right of access to the exhibits attached to a civil complaint, “where they consisted of discovery material that was not admitted at trial or used as a basis of the court’s adjudication of a substantive matter”). See also Appendix 1, Trial Court Records Manual, available at www.courts.ca.gov/documents/trial-court-records-manual.pdf (providing a complete list of court records designated confidential by statute or rule).
The Colorado Open Records Act (“CORA”), C.R.S. § 24-72-201, declares a “public policy of this state that all public records shall be open for inspection by any person at reasonable times . . . .” The Colorado Court of Appeals has interpreted CORA to mean that “unless there exists a legitimate reason for non-disclosure, any member of the public is entitled to review all public records. There is no requirement that the party seeking access must demonstrate a special interest in the records requested.” Anderson v. Home Ins. Co., 924 P.2d 1123 (Colo. App. 1996); see also A.T. v. State Farm Mut. Auto. Ins. Co., 989 P.2d 219, 221 (Colo. App. 1999) (“There is a presumption that the public has access to court records.”).
CORA restricts the public right of access to court records if such inspection “is prohibited by rules promulgated by the supreme court or by the order of any court,” C.R.S. § 24-72-204(1)(c), or if disclosure would be contrary to any federal or state statute or regulation, among other things.
The Colorado Supreme Court promulgated C.R.C.P. 121, § 1-5 to govern access to civil court files. The rule permits a court to limit access to court files upon a motion of any party to a civil action only if the court finds that “harm to the privacy of a person in interest outweighs the public interest.” An order limiting access may be reviewed by the court at any time on its own motion or upon the motion “of any person.” C.R.C.P. 121, § 1-5(4). The rule “creates a presumption that all court records are to be open; it allows a court to limit access in only one instance and for only one purpose (when the parties’ right of privacy outweighs the public’s right to know); and it grants to every member of the public the right to contest the legitimacy of any limited access order.” Anderson, 924 P.2d at 1126. The rule “squarely places the burden upon the party seeking to limit access to a court file to overcome this presumption in favor of public accessibility by demonstrating that the harm to the privacy of a person in interest outweighs the public interest in the openness of court files.” Id.
See also Times-Call Publ’g Co. v. Wingfield, 410 P.2d 511, 512–14 (Colo. 1966) (construing a statute to give clerks discretion to let non-parties to review pleadings or other papers filed in court, so as to avoid “serious questions of constitutional law involving freedom of the press and the separation of governmental power,” and stating that denial of access to the media to review pleadings and other papers in a case of public interest “would be an abuse of discretion”).
Chief Justice Directive 05-01, as amended, contains the Colorado Judicial Department’s Public Access to Court Records policy (“Public Access Policy”) (pdf), which governs access to court records generally. “Court records” include “any document, information, audio or video recording, or other item that is collected, received, and maintained by a court” or by a probation department, that is related to a judicial proceeding, defendant, or probationer. The Public Access Policy permits public access to court records, except as prohibited by federal or state statute, court rule, court order, or the Public Access Policy itself. (Section 4.10; Section 4.60.) Section 4.60 of the Public Access Policy lists several case classes, case types, and court records that are not accessible to the public, absent a court order. The Public Access Policy identifies the “Clerks of Court” as the official custodians of all case-related documents and information.
In both state and federal court, the First Amendment provides a strong presumption of public access to documents filed in civil cases “that directly affect an adjudication;” these are referred to as “judicial documents.” United States v. Amodeo, 71 F.3d 1044, 1049 (2d Cir. 1995). Records of that type may be sealed only if “specific, on the record findings are made demonstrating that [sealing] is essential to preserve higher values and is narrowly tailored to serve that interest,” provided that the “right of access cannot be overcome by the conclusory assertion that publicity might deprive the defendant of the right to a fair trial.” In re New York Times Co., 828 F.2d 110, 116 (2d Cir. 1987) (internal quotations and alterations omitted).
Connecticut’s courts presume civil case records to be open to the public. Conn. R. Super. Ct. §§ 11-20A(a), (b). As with access to civil proceedings more generally, records may be sealed to the public only if the court concludes that closure “is necessary to preserve an interest which is determined to override the public's interest” viewing the materials, and only after the court “first consider[s] reasonable alternatives to” sealing. Id. Any sealing order “shall be no broader than necessary to protect such overriding interest,” and the parties’ agreement that the records shall be sealed “shall not constitute a sufficient basis for the issuance of such an order.” Id. § 11-20A(c).
The District of Connecticut’s rules mandate that “[n]o judicial document shall be filed under seal, except upon entry of an order of the Court” that “include[s] particularized findings demonstrating that sealing is supported by clear and compelling reasons and is narrowly tailored to serve those reasons,” while forbidding sealing “merely by stipulation of the parties.” D. Conn. Local Civ. R. 5(e)(3).
At least one district court in the District of Columbia has applied a common law right of access to civil records. See In re Fort Totten Metrorail Cases, 960 F. Supp. 2d 2, 5 (D.D.C. 2013). In deciding whether to disclose a public record in a civil case pursuant to the common law, a court must (1) determine that the record is, in fact, a “judicial record” and (2) balance the “public’s right of access against the interests favoring nondisclosure.” Id. at 6. There is a “strong presumption in favor of public access to judicial proceedings.” Id. (citing EEOC v. Nat’l Children’s Ctr., Inc., 98 F.3d 1406, 1409 (D.C. Cir. 1996)). The court should consider the following six factors in determining whether the presumption may be overcome:
(1) [T]he need for public access to the documents at issue; (2) the extent of previous public access to the documents; (3) the fact that someone has objected to disclosure, and the identity of that person; (4) the strength of any property and privacy interests asserted; (5) the possibility of prejudice to those opposing disclosure; and (6) the purposes for which the documents were introduced during the judicial proceedings.
Id. (as originally articulated in United States v. Hubbard, 650 F.2d 293 (D.C. Cir. 1980), and referred to as “Hubbard factors”). “[A] strong showing on one Hubbard factor can outweigh several other factors.” Id. at 11 (finding minors’ settlement records should be disclosed based on a single factor, even though most Hubbard factors weighed in favor of nondisclosure).
At least one D.C. district court has found that “under the First Amendment the public has a limited right to access the unclassified factual returns in . . . habeas proceedings,” after citing with approval other circuits’ precedents granting a First Amendment right of access to civil records. In re Guantanamo Bay Detainee Litig., 630 F. Supp. 2d 1, 10–12 (D.D.C. 2009) (noting that habeas proceedings are considered civil proceedings).
The D.C. Circuit has defined “judicial records” subject to a common law right of access as those that the court makes a decision about or otherwise relies on, S.E.C. v. Am. Int’l Grp., 712 F.3d 1, 4 (D.C. Cir. 2013), or “can affect a court’s decisionmaking process even if the court’s opinion never quotes or cites it,” Metlife, Inc. v. Fin. Stability Oversight Council, 865 F.3d 661, 667 (D.C. Cir. 2017). For example, the D.C. Circuit recognized a common law right of access to sealed portions of the parties’ briefing and administrative record submitted in support of a summary judgment motion, even though the court’s decision did not reference them specifically. Id. However, the D.C. Circuit has held that reports created pursuant to a consent decree but never filed with the court were not judicial records and therefore not subject to a First Amendment or common law right of access. Am. Int’l Grp., 712 F.3d at 4–5.
Although these types of cases are fact-specific, here are some general principles derived from Delaware cases:
* The fact that the information is material to understanding the nature of the dispute weighs against sealing. ADT Holdings, Inc. v. Harris, 2017 WL 4317245 at *3 (Del Ch. Sept. 28, 2017); Al Jazeera America, LLC v. A.T. & T. Services, Inc., 2013 WL 5614284 at *5 & 7 (Del. Ch. Oct. 14, 2013).
* The fact that the information is outdated weighs against sealing. ADT Holdings, Inc. v. Harris, 2017 WL 4317245 at *2 (Del Ch. Sept. 28, 2017).
* The fact that disclosure of non-sensitive commercial information may have collateral economic consequences such as a weakened bargaining position does not justify sealing. Al Jazeera America, LLC v. A.T. & T. Services, Inc., 2013 WL 5614284 at *5 (Del. Ch. Oct. 14, 2013).
* Potential embarrassment is not a sufficient reason to keep allegations of a public pleading confidential. Al Jazeera America, LLC v. A.T. & T. Services, Inc.,2013 WL 5614284 at *6 (Del. Ch. Oct. 14, 2013); Sequoia Presidential Yacht Group, LLC v. FE Partners, LLC, 2013 WL 3724946 at *3 (Del. Ch. July 15, 2013); Horres v. Chick-Fil-A, Inc., 2013 WL 1223605 at *2 (Del. Ch. Mar. 27, 2013); Espinoza v. Hewlett-Packard & Co., 2011 WL 941464 at *6 (Del. Ch. Mar. 17, 2011); In re The Walt Disney Co. Deriv. Litig., 2004 WL 368938 at *1 (Feb. 24, 2004).
* The fact that a case has settled or become moot does not lessen the public’s right of access. Sequoia Presidential Yacht Group, LLC v. FE Partners, LLC, 2013 WL 3724946 at *2 (Del. Ch. July 15, 2013).
* The identity of third parties who are victims or witnesses of alleged wrongful conduct and who did not participate in any action leading to a public lawsuit may be subject to protection by having their names redacted. Horres v. Chick-Fil-A, Inc., 2013 WL 1223605 at *3 (Del. Ch. Mar. 27, 2013).
District of Columbia
There is a common law right of access to court records from civil cases under D.C. law. Mokhiber v. Davis, 537 A.2d 1100 (D.C. 1988); cf. Morgan v. Foretich, 521 A.2d 248 (D.C. 1987) (holding that presumption of access does not apply to civil contempt hearing in family-division case). That right, however, “is not absolute” and “does not necessarily apply to all documents that one might arguably term ‘court records’ relating to a lawsuit.” Id. at 1108-09.
In a 1981 decision, the D.C. Circuit weighed six factors (in the context of a criminal proceeding) that have now been commonly cited in D.C. decisions addressing sealed records more generally: (1) the need for public access to the documents at issue; (2) the extent to which the public had access to the documents prior to the sealing order; (3) the fact that a party has objected to disclosure and the identity of that party; (4) the strength of the property and privacy interests asserted; (5) the possibility of prejudice to those opposing disclosure; and (6) the purposes for which the documents were introduced. United States v. Hubbard, 650 F.2d 293, 317-22 (D.C. Cir. 1981); see also, e.g., In re Reporters Comm. for Freedom of Press, 773 F.2d 1325, 1339 (D.C. Cir. 1985) (citing Hubbard in discussing public access to civil records). Hubbard, the D.C. Circuit recently wrote, “has consistently served as [the Court’s] lodestar” in deciding questions of access. Metlife, Inc. v. Fin. Stability Oversight Council, 865 F.3d 661 (D.C. Cir. 2017). Notably, however, the Hubbard test is inapplicable “in at least two circumstances:” first, when the documents at issue are not properly considered “judicial records” (and “‘not all documents filed with courts are judicial records’”) and second, when a statute clearly dictates that a judicial filing should or should not be sealed. United States ex rel. Kammarayil v. Sterling Operations, Inc., No. 15-1699 (BAH), 2018 WL 6839747, at *2-3 (D.D.C. Dec. 31, 2018) (quoting Metlife, 865 F.3d at 666).
Article I, Section 24 (a) gives “every person” a constitutional right of access to public records, including the records of the judicial branch. Although Florida constitutionally guarantees its citizens a right of privacy, that right is subordinate to the right of access to public records. See Art. I § 23, Fla. Const.
Florida Rule of Judicial Administration 2.420 governs access to civil court records. That provision provides for closure in only a limited number of circumstances that are consistent with the test for closure of civil court proceedings and records, as outlined in 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 confidentiality is required to (a) prevent a serious and imminent threat to the fair, impartial, and orderly administration of justice; (b) to protect trade secrets; (c) to protect a compelling government interest; (d) to obtain evidence to properly determine legal issues in a case; (e) to avoid substantial injury to innocent third parties; (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 proceeding sought to be closed; or (g) to comply with established public policy set forth in the Florida or United States Constitution or statutes or Florida rules or case law. Fla. R. Jud. Admin. 2.420(c)(9)(A). Second, “the degree, duration, and manner of confidentiality ordered by the court shall be no broader than necessary to protect the interests” which are sought to be protected. Fla. R. Jud. Admin. 2.420(c)(9)(B). Finally, there must be no less restrictive alternatives available to the court to protect the asserted interests. Fla. R. Jud. Admin. 2.420(c)(9)(C).
In order to protect the public’s right of access, courts are obligated to ensure sealing is done in accordance with Barron and Rule Florida Rule of Judicial Administration 2.420, even if the parties agree or stipulate as to the sealing of certain documents. See Rocket Grp., LLC v. Jatib, 114 So. 3d 398, 400-01 (Fla. Dist Ct. App. 2013).
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;
In 1998, Illinois codified a law guaranteeing the public’s right to view dockets and papers (including judicial records) that are on file with the clerks’ office and deemed public documents. 705 Ill. Comp. Stat. 105/16(6) (West 2019). In 2000, however, the Illinois Supreme Court held that the right of access granted by the statute is not absolute. Skolnick v. Altheimer & Gray, 191 Ill.2d 214, 231, 730 N.E.2d 4, 16, 246 Ill. Dec. 324, 336 (2000). The Skolnick court explained that “whether court records in a particular case are opened to public scrutiny rests with the trial court’s discretion, which must take into consideration all facts and circumstances unique to that case.” Id. (citing Nixon v. Warner Commc’ns, Inc., 435 U.S. 589, 599 (1978)). The court also established the principle that “[t]he mere fact a person may suffer embarrassment or damage to his reputation as a result of allegations in a pleading does not justify sealing the court file.” Id. at 234, 730 N.E.2d at 18, 246 Ill. Dec. at 338. In determining whether a document is subject to the right of access, a court must consider whether the type of document at issue has historically been available to the public. A.P. v. M.E.E., 354 Ill. App. 3d 989, 1001, 821 N.E.2d 1238, 1251, 290 Ill. Dec. 664, 677 (Ill. App. Ct. 1st Dist. 2004).
Illinois courts have applied the experience and logic test only in the criminal context though the Illinois Supreme Court has hinted it may also apply in the civil context. See Zimmerman, 120 N.E.3d at 925 (noting that under the “experience” prong, there is no tradition of public access to discovery in a civil or criminal case because “the documents themselves contain no evidentiary value until admitted into evidence at trial or other proceedings”) (citing Courier-Journal, Inc. v. McDonald-Burkman, 298 S.W.3d 846, 848-49 (Ky. 2009)).
Unless covered by a specific exemption (or by a properly issued protective order in litigation), all court records are covered by the Access to Public Records Act. Ind. Code § 5-14-3-2. The Act, however, provides for mandatory exemption from disclosure of any information that is “declared confidential by or under rules adopted by the supreme court of Indiana.” Ind. Code § 5-14-3-4(a)(8).
In 2004, the Indiana Supreme Court adopted amendments to Administrative Rule 9, which governs access to court records. The stated objective of the rule is to “provide maximum public accessibility to court records, taking into account public policy interests that are not always fully compatible with unrestricted access.” See Commentary to Ind. Admin. R. 9(A). Though many of the rule’s provisions simply reiterate exemptions provided by the Access to Public Records Act, see, e.g., Ind. Admin. R. 9(G)(2), the rule also exempts from disclosure many additional types of information. See Ind. Admin. R. 9(G). This exclusion can occur without a hearing and without a balancing of the competing interests involved. See Bobrow v. Bobrow, 810 N.E.2d 726, 734 (Ind. App. 2004) (“When public records fall within a mandatory exception under [Ind. Code § 5-14-3-]4(a), a trial court can seal those records without holding . . . a hearing and balancing the competing interests.”).
Generally, court records filed in the office of the clerk of court are public records open to inspection under Iowa Code Chapter 22. In Iowa, “[e]very person shall have the right to examine and copy a public record and to publish or otherwise disseminate a public record or the information contained in a public record.” Iowa Code § 22.2 (2018). Certain records, such as minutes of testimony that accompany a county attorney’s information, are confidential by court rule. See also In re Langholz, 887 N.W.2d 770, 776–77 (Iowa 2016) (applying the Open Records Act to determine whether to seal court record granting permanent injunction). In denying a motion to seal documents in a civil case, an Iowa court stated that “[t]he court file, like all court files, is open to the public.” McCleary v. Kauffman, No. EQCE082353, 2017 WL 6330635 (Iowa Dist. Ct. Dec. 7, 2017).
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.
In Kentucky, the right of access to civil court records has been recognized under the common law, the First Amendment, and the Rules of Civil Procedure. Roman Catholic Diocese v. Noble, 92 S.W.3d 724, 732 (Ky. 2002); Fiorella v. Paxton Media Grp., LLC, 424 S.W.3d 433, 439 (Ky. Ct. App. 2014).
There is a constitutional right of access to public documents. Article 12, § 3 of the Louisiana Constitution states: “No person shall be denied the right to . . . examine public documents, except in cases established by law.” This right is implemented by the Louisiana Public Records Act, La. R.S. 44:1 et seq. Under the Public Records Act, “any person” may make a public records request. La. R.S. 44:32. “Any person who has been denied the right to inspect or copy a record” may “institute proceedings for the issuance of a writ of mandamus, injunctive or declaratory relief.” La. R.S. 44:35.
Courts are covered by the Public Records Act. See La. R.S. 44:1(A)(1), defining “public body” as including “any branch . . . of state . . . government,” and article 2, § 1 of the Louisiana Constitution: “The powers of government of the state are divided into three separate branches: legislative, executive, and judicial.”
In addition to the Public Records Act applying to civil court records, article 251 of the Code of Civil Procedure states: “The clerk of court is the legal custodian of all of its records. . . . Except as otherwise provided by law, he shall permit any person to examine, copy, photograph, or make a memorandum of any of these records at any time during which the clerk’s office is required by law to be open.”
In Keko v. Lobrano, 497 So.2d 353 (La. App. 1986), the Court of Appeal held that, in light of the Public Records Act and article 251, “there is no power in the trial court to order an entire civil case record sealed from public inspection.”
Typically, court records in civil cases, whether in the District Courts or on appeal, are obtained simply by going to the clerk’s office and filling out a form requesting a record.
In Copeland v. Copeland, 930 So.2d 940 (La. 2006), the District Court, on joint motion of the parties, issued an order sealing the entire record of the divorce proceedings of a wealthy and famous local businessman. On a writ application by a newspaper, the Supreme Court found “the trial court’s blanket order sealing the entire record in this case to be overbroad,” and vacated and remanded. The Supreme Court required a “specific showing that [the parties’] privacy interest outweigh the public’s constitutional right of access to the record” and further required that orders sealing records be “narrowly tailored to cause the least interference with the right of public access.” On remand, the District Court ordered almost all of the documents in the record sealed. The Supreme Court again granted a writ and ordered “the entire record unsealed, with redaction of the following information: (1) the name of the children’s school; and (2) the location of the family home.” Copeland v. Copeland, 966 So.2d 1040, 1048 (La. 2007).
In general, civil court records are public per Administrative Order JB-05-20, “Public Information and Confidentiality,” which provides:
Information and records relating to cases that are maintained in case files, dockets, indices, lists, or schedules by and at the District, Superior, or Supreme Judicial Courts are generally public and access will be provided to a person who requests to inspect them or have copies made by the clerk’s office staff unless the information or a part of it is confidential . . . .
Id. § III(A)(1).
“Although under appropriate circumstances a court may impound records when publication would impede the administration of justice, the power of impoundment should be exercised with extreme care and only upon the clearest showing of necessity.” Me. Auto Dealers Ass’n v. Tierney, 425 A.2d 187, 189 n.3 (Me. 1981) (citation omitted).
There is a First Amendment right of access to civil court records. Doe v. Shady Grove Adventist Hosp., 598 A.2d 507, 511, 514 (Md. 1991) (First Amendment right of access applies to civil proceedings, and extends to “pretrial proceedings,” “trial proceedings,” and “court records”; finding that plaintiff had demonstrated a compelling interest overcoming constitutional right of access and meriting limited sealing of record).
The Maryland Court of Appeals has also recognized a common law right of public access to court records. In Baltimore Sun Co. v. Mayor & City Council of Baltimore, 755 A.2d 1130, 1134 (Md. 2000), the Court of Appeals held that the “common law principle of openness is not limited to the trial itself but applies generally to court proceedings and documents.” Under the Maryland Rules, which codified the common law right of access, a presumptively public “Case Record” is defined to include “all or any portion of a court paper, document, exhibit, order, notice, docket entry, or other record, whether in paper, electronic, or other form, that is made, entered, filed, or maintained by the clerk of a court in connection with an action or proceeding,” as well as any other “miscellaneous record filed with the clerk of the court pursuant to law that is not a notice record.” Md. Rule 16-902(c)(1)(A) & (C).
The Rules, however, do limit or forbid inspection of certain Case Records, including records implicating the privacy rights of children (including records concerning adoption, guardianship and juvenile delinquency, or child abuse and neglect); transcripts or recordings of court proceedings that were closed to the public, as well as any materials maintained by a court reporter that were not filed with the clerk; records containing certain sensitive medical information; and tax returns. Md. Rule 16-907. With respect to these categories of documents, there is a presumption of closure, and it is incumbent on the party seeking access to overcome this presumption. These provisions cannot override the constitutional right of access, however. Cf. Doe, 598 A.2d at 511 (burden of circumscribing First Amendment right of access rests on party seeking closure).
Under the Rules, where the presumption of openness applies, a party seeking to seal Case Records must show that a “special and compelling reason exists” to limit access to such records. Md. Rule 16-912(d)(5)(A); State v. WBAL-TV, 975 A.2d 909, 922 (Md. Ct. Spec. App. 2009). Any order limiting access to Case Records—which can only be made after notice is given and an opportunity provided for interested parties to oppose closure—must be “as narrow as practicable in scope and duration to effectuate the interest sought to be protected by the order,” Md. Rule 16-912(d)(1) & (3). Conversely, for records that are presumptively closed, the burden is on the party seeking access to show a “special and compelling reason” requiring access. Md. Rule 16-912(d)(5)(B).
Following Supreme Court precedent, Massachusetts courts recognize “a well-established common-law right of access to the judicial records of civil proceedings.” Boston Herald, Inc. v. Sharpe, 737 N.E.2d 859, 868 (Mass. 2000) (citing Nixon v. Warner Comm’cns, Inc., 435 U.S. 589, 597 (1978), rev’d on other grounds, Janes v. Commonwealth, 436 Mass. 1010 (2002); Ottaway Newspapers, Inc. v. Appeals Ct., 362 N.E.2d 1189, 1194 (Mass. 1977)).
In Minneapolis Star & Tribune Co. v. Schumacher, 392 N.W.2d 197, 202–03 (Minn. 1986), the Minnesota Supreme Court recognized the common law presumption in favor of granting the public the right to inspect and copy court records and documents. This common law presumption of access has been characterized as “strong.” Id. at 203. Minnesota state district courts have also applied a common law right of access to civil proceedings and records. See, 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).
At the federal level, the District of Minnesota is part of the Eighth Circuit, which also recognizes a common law right of access to civil files and proceedings. 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).
In addition, the Minnesota Supreme Court has adopted The Rules of Public Access to Records of the Judicial Branch, which provide that as a general policy, the “[r]ecords of all courts and court administrators … are presumed to be open to any member of the public for inspection or copying at all times during the regular office hours.” Minn. R. Pub. Access Rec’ds. Jud. Br. 2. “Records” are defined as “any recorded information that is collected, created, received, maintained or disseminated by a court or court administrator.” Id. 3, subd. 5. Rules 7 and 8 dictate the procedure for requesting access, which is straightforward and does not require the payment of a fee unless otherwise established by statute; however, when copies are requested, the custodian may charge a copy fee. Id. 8; subd. 6.
“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.”).
Although there are no court decisions on access to records of civil proceedings, statutory provisions require court records to be open, with a few exceptions. Records of mental commitment proceedings, dependent/neglect and youth court proceedings involving a youth in need of care or supervision are closed. The clerks of court redact certain information from some court records before they are disclosed, such as social security numbers and income tax information.
The Nebraska Public Records Act, Neb. Rev. Stat. §84-712, et seq. (Reissue 2014), applies to courts. State ex rel. Griggs v. Meeke, 19 Neb. 106, 26 N.W. 620 (1886); State ex rel. Newby v. Elsworth, 61 Neb. 444, 85 N.W. 439 (1901). Under the Public Records Act, records “of or belonging to” the State or its constituent parties are public records unless some other statute makes them confidential or a given record falls within one or more of 16 exceptions enumerated in the Public Records Act. A record which could otherwise be withheld under the Public Records Act must be deemed public if it has been “publicly disclosed in an open court, open administrative proceeding, or open meeting or disclosed by a public entity pursuant to its duties.” Neb. Rev. Stat. § 84-712.05 (2016 Cum. Supp.).
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.
“[T]here is a broad presumption that the public is entitled to access to judicial proceedings and court records.” Mosallem v. Berenson, 76 A.D.3d 345, 348–49, 905 N.Y.S.2d 575, 578 (N.Y. App. Div. 2010). As codified in section 216.1(a) of the Uniform Rules for Trial Courts (22 NYCRR 216.1 (a)), “[e]xcept where otherwise provided by statute or rule, a court shall not enter an order in any action or proceeding sealing the court records, whether in whole or in part, except upon a written finding of good cause, which shall specify the grounds thereof. In determining whether good cause has been shown, the court shall consider the interests of the public as well as of the parties.” Id. at 348.
“Although the rule does not further define ‘good cause,’ a standard that is ‘difficult to define in absolute terms,’ a sealing order should rest on a ‘sound basis or legitimate need to take judicial action,’ a showing properly burdening the party seeking to have a sealed record remain sealed.” Danco Labs., Ltd. v. Chem. Works of Gedeon Richter, Ltd., 274 A.D.2d 1, 7–8, 711 N.Y.S.2d 419 (2000) (citing Coopersmith v. Gold, 156 Misc. 2d 594, 606 (N.Y. Sup. Ct. 1992)).
The public's right of access to court records is provided by N.C.G.S. 7A-109(a), which prescribes record-keeping procedures and specifically grants the public the right to inspect records in criminal and civil proceedings.
Public records are generally governed by the North Carolina Public Records Act ("Act"), N.C.G.S. 132 et seq. The Act is liberally construed in favor of access to public records (which are defined by the Act), unless the records sought are specifically exempted by law. See State Employees Ass'n, Inc. v. North Carolina Dep't. of State Treasurer, 364 N.C. 205, 211 (2010); see also N.C.G.S. 132-1.2; 132-1.4.
In Ohio, court records are presumed open to public access. See Sup.R. 45(A). The public’s right of access to court records is enforced through a mandamus action. State ex rel. Beacon Journal Pub’g Co. v. Bond, 781 N.E.2d 180, 195 (Ohio 2002). Under Ohio law, an official with a statutory duty to oversee public records is considered to be the “person responsible” for making the records available to the public. See State ex rel. MADD v. Gosser, 485 N.E.2d 706 (Ohio 1985). Though there is a right of access to public records, this right is not violated by the sealing of official records after a not guilty finding or dismissal of a complaint. See State ex rel. Cincinnati Enquirer v. Winkler, 805 N.E.2d 1094 (Ohio 2004).
Rules 44 through 47 of the Rules of Superintendence for the Courts of Ohio provide additional requirements regarding the circumstances in which court records can be withheld from the media and the public. Sup.R 44(B) defines “court record” as “both a case document and an administrative document, regardless of physical form or characteristic, manner of creation, or method of storage.” Sup.R. 45(A) provides that “[c]ourt records are presumed open to public access.” Sup.R. 45(B) provides that the court clerk shall promptly acknowledge a request for access to court records and shall respond to the request within a reasonable amount of time.
Anyone seeking to restrict public access must file a written motion with the court asking the court to restrict access to information or, if necessary, the entire document. See Sup.R. 45(E)(1). The court may also restrict public access to the case document on its own order. Id. The court must give notice of the motion or order to all parties in the case and may schedule a hearing on the motion. Id. Before restricting public access to a case document, the court must find by clear and convincing evidence that “the presumption of allowing public access is outweighed by a higher interest” after considering the following factors: “(a) whether public policy is served by restricting public access; (b) whether any state, federal, or common law exempts the document or information from public access; and (c) whether factors that support restriction of public access exist, including risk of injury to persons, individual privacy rights and interests, proprietary business information, public safety, and fairness of the adjudicatory process.” Sup.R. 45(E)(2). In restricting access to a case document, the court must use the least restrictive means available, including but not limited to: redacting the information rather than limiting access to the entire document; restricting remote access to the document while maintaining direct access (as defined in Sup. R. 44); restricting access only for a specific period of time; using a generic title or description for the document; or using initials or other identifiers for the parties’ proper names. See Sup.R. 45(E)(3).
The news media and any member of the public may seek, by written motion, access to a case document that has been restricted. See Sup.R. 45(F)(1). The court will notify all parties that such a motion has been filed and may schedule a hearing on the motion. Id. The court may permit public access if it finds by clear and convincing evidence that the presumption of allowing public access is no longer outweighed by a higher interest. SeeSup.R. 45(F)(2). The court will consider whether the original reason for restricting access no longer exists or is no longer applicable and whether any new circumstances have arisen which would require the restriction of public access. Id. Anyone who wants to appeal the trial court’s ruling regarding restricting public access to case documents may pursue an action in mandamus. See Sup.R. 47(B). Furthermore, Sup.R. 44(C)(2) of the Rules of Superintendence for the Courts of Ohio excludes certain documents from the definition of “case documents” that are presumptively open to the public:
(2) The term “case document” does not include the following:
(a) A document or information in a document exempt from disclosure under state, federal, or the common law;
(b) Personal identifiers, as defined in division (H) of this rule;
(c) A document or information in a document to which public access has been restricted pursuant to Sup.R. 45(E);
(d) Except as relevant to the juvenile's prosecution later as an adult, a juvenile's previous disposition in abuse, neglect, and dependency cases, juvenile civil commitment files, post-adjudicatory residential treatment facility reports, and post-adjudicatory releases of a juvenile's social history;
(e) Notes, drafts, recommendations, advice, and research of judicial officers and court staff;
(f) Forms containing personal identifiers, as defined in division (H) of this rule, submitted or filed pursuant to Sup.R. 45(D)(2);
(g) Information on or obtained from the Ohio Courts Network, except that the information shall be available at the originating source if not otherwise exempt from public access;
(h) In a court of common pleas or a division thereof with domestic relations or juvenile jurisdiction, the following documents, including but not limited to those prepared pursuant to R.C. 2151.281, 3105.171(E)(3), and 3109.04 and Sup.R. 48:
(i) Health care documents, including but not limited to physical health, psychological health, psychiatric health, mental health, and counseling documents;
(ii) Drug and alcohol use assessments and pre-disposition treatment facility reports;
(iii) Guardian ad litem reports, including collateral source documents attached to or filed with the reports;
(iv) Home investigation reports, including collateral source documents attached to or filed with the reports;
(v) Child custody evaluations and reports, including collateral source documents attached to or filed with the reports;
(vi) Domestic violence risk assessments;
(vii) Supervised parenting time or companionship or visitation records and reports, including exchange records and reports;
(viii) Financial disclosure statements regarding property, debt, taxes, income, and expenses, including collateral source documents attached to or filed with records and statements;
(ix) Asset appraisals and evaluations.
The Oklahoma Open Records Act specifically provides, Okla. Stat. tit. 51, §§ 24A.30, that “[a]ll court records . . . shall be considered public records and shall be subject to the provisions of the Oklahoma Open Records Act, unless otherwise identified by statute to be confidential.” Section 24A.30 goes on to provide that a court may seal a record or portion of a record only if “a compelling privacy interest exists which outweighs the public’s interest in the record.” If a court intends to seal some or all of a record, it must make findings of fact which identify the facts on which the court relies; make conclusions of law specific enough to allow the public to know the basis for sealing the record; use the least restrictive means of achieving confidentiality; and narrowly tailor the sealing to only those portions of the record which are determined to be confidential, leaving the balance of the record open. Okla. Stat. tit. 12, § 32.1 defines “court record” in civil cases to include “the petition, the process, return, the pleadings subsequent thereto, reports, verdicts, orders, judgments, and all material acts and proceedings of the court.”
In Oregon, subject to certain restrictions, “Every person has a right to inspect any public record of a public body[.]” ORS 192.314. Public records include “any writing that contains information relating to the conduct of the public’s business, including but not limited to court records . . ..” ORS 192.311(5)(a). Public bodies include state agencies, ORS 192.410(4), and state agencies include courts. ORS 192.311(6).
Article I, section 10 of the Oregon Constitution arguably provides access to court records as well. Though the Oregon Supreme Court has not published an opinion on the issue, the Court has considered it. In A.K.H. v. R.C.T., a U.S. District Court certified a question to the Oregon Supreme Court and transferred sealed court records to the Oregon Supreme Court at the same time. The defendant in the matter requested that those documents, which were under seal in a related federal court case, remain under seal at the Oregon Supreme Court. The Oregon Supreme Court declined, citing Article I, section 10. See Multnomah County Attorney Reference Manual 27 (2008) (citing A.K.H. v. R.C.T., Supreme Court Case 37202 (1990)) .
However, Oregon excludes from disclosure various categories of information. These exclusions are listed in ORS 192.345 and 192.355. Notable exceptions from disclosure include public records pertaining to litigation, ORS 192.345(1), and public records otherwise made confidential under Oregon law, ORS 192.355(9)(a).
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).
In civil matters, “[c]ourt records are generally public documents and are subject to supervision by the court. . . . Basically, all court documents are public.” Providence Journal Co. v. Clerk of Family Court, 643 A.2d 210, 211 (R.I. 1994). Although the Rhode Island Supreme Court has not addressed what constitutes a “court record,” the Rhode Island Superior Court has adopted the approach that “documents that are filed with the court that reasonably may be relied upon in support of any part of the court‘s adjudicatory function are judicial documents.” Dauray v. Estate of Mee, No. PB-10-1195, 2013 WL 372647, at *13, 2013 R.I. Super. LEXIS 19, at *40-41 (R.I. Super. Ct. January 23, 2013) (quoting Rosado v. Bridgeport Roman Catholic Diocesan Corp., 970 A.2d 656, 678 (Conn. 2009)). In Dauray, media intervenors and the plaintiff sought documents produced in discovery and filed in the Superior Court by filing a motion to vacate or modify a probate judge’s protective order. Id. at 2013 WL 372647, at *1-2, 2013 R.I. Super. LEXIS 19, at *1-2. That order was entered in the probate court before appeal to the Superior Court, and was not a part of the appeal to the Superior Court. Id. Citing federal law, the Superior Court recognized that court documents and judicial records are open to the public and cannot be withheld, but documents produced in discovery are not necessarily public just because they were filed with the court. Id. at 2013 WL 372647, at *12-13, 2013 R.I. Super. LEXIS 19, at *38-39 (citing Nixon v. Warner Communications, Inc., 435 U.S. 589 (1978); Seattle Times Co. v. Rhinehart, 467 U.S. 20 (1984)).
The Superior Court also determined that once a document is identified as a “court record,” the scope of the public’s right of access is determined according to a balancing test. See id. at 2013 WL 372647, at *14-15, 2013 R.I. Super. LEXIS 19, at *48-49 (citing Chicago Tribune Co. v. Bridgestone/Firestone, Inc., 263 F.3d 1304, 1311 (11th Cir. 2001) (“[T]he common law right of access requires a balancing of competing interests.”)). While the usual limitation on public disclosure in the first instance is the standard for granting a protective order contained in Rhode Island Superior Court Rule of Civil Procedure 26(c), in the context of modifying a protective order that conflicts with the right of access, the Superior Court provided as follows:
[F]irst, “the moving party bears the burden of demonstrating why modification is appropriate.” Grounds for modification include: “the original basis for the sealing orders no longer exists; the sealing orders were granted improvidently; or the interests protected by sealing the information no longer outweigh the public’s right to access.” The final ground “permits the trial court to consider situations in which the original basis for the sealing orders still exists to some degree but has been altered because of a change in circumstances.” Upon a showing of grounds for modification, the second part of the balancing of the interest test requires the court to “balance the interests of the party moving to unseal the information with the countervailing interests presented by the party seeking to keep the information sealed.”
Dauray, 2013 WL 372647, at *14, 2013 R.I. Super. LEXIS 19, at *50-51 (quoting Rosado, 970 A.2d at 691-92) (internal citations omitted).
The South Carolina Freedom of Information Act, S.C. Code Ann. § 30-4-10 et. seq., protects rights of access to court records, and all filed records are available through each county’s public index website. A link to each county public index webpage is available at https://www.sccourts.org/caseSearch/.
Because South Carolina has a long history of maintaining open court proceedings and records, the state adopted Rule 41.1, SCRCP, to establish guidelines for the sealing of certain documents filed with the courts. Rule 41.1(d) provides that a court must provide the specific reasons for why sealing is necessary. Rule 41.1 (c) prohibits the sealing of settlement agreements involving a public body of the state.
An editor’s note under Rule 41.2 of South Carolina’s Rules of Civil Procedure states:
“Easy access to electronic court records raises privacy concerns. This rule details the type of personal information that parties are required to redact in court filings. Parties preparing or filing documents are prohibited from filing documents which contain personal identifying information delineated in S.C. Code Ann. § 30-2-330(A). Furthermore, parties should exercise caution in including other sensitive personal data in filings, such as medical records, employment history, individual financial information, proprietary or trade secret information, information regarding an individual's cooperation with the government, information regarding the victim of any criminal activity, or national security information.”
See S.D. Codified Laws § 15-15A (Uniform Judicial System Court Records Rule). Court records are generally open (S.D. Codified Laws § 15-15A-5), but in addition to specific exceptions (S.D. Codified Laws § 15-15A-7 et seq.) there is a general catch-all for “information that is not to be accessible. . . . pursuant to state law, court rule or case law. . . . S.D. Codified Laws § 15-15A-7(2).
Texas courts recognize that civil court records are presumptively open to the public. See Davenport v. Garcia, 834 S.W.2d 4, 23–24 (Tex. 1992); In Interest of M.A.M., No. 05-14-00040-CV, 2015 WL 5863833, at *4 (Tex. App.—Dallas Oct. 8, 2015), reh’g overruled (Nov. 30, 2015) and review denied (Feb. 26, 2016) (mem. op.) (citing Times Herald Printing Co. v. Jones, 717 S.W.2d 933, 936 (Tex. App.—Dallas 1986), vacated and dismissed on other grounds, 730 S.W.2d 648 (Tex. 1987) (per curiam); Ashpole v. Millard, 778 S.W.2d 169, 170 (Tex. App.—Houston [1st Dist.] 1989, no pet.)).
However, under Texas law, there is no “paramount right to immediate access to court records.” Oryon Techs., Inc. v. Marcus, 429 S.W.3d 762, 764 (Tex. App.—Dallas 2014, no pet.) (emphasis added) (citing Dallas Morning News v. Fifth Court of Appeals, 842 S.W.2d 655, 659 (Tex. 1992)).
Texas Rule of Civil Procedure 76a, which has governed the procedure for sealing most civil court records since 1990, states that no court opinion or order may be sealed, and that all other court records are presumptively available to the public. See Tex. R. Civ. P. 76a. Rule 76a’s definition of “court records” encompasses “all documents of any nature filed in connection with any matter before a civil court,” subject to a few exceptions. Id. at 76a(2). Documents are filed when “tendered to the clerk, or otherwise put under the custody or control of the clerk” of a civil court. Biederman v. Brown, 563 S.W.3d 291, 303 (Tex. App.—Houston [1st Dist.] 2018, no pet.) (quoting In re Srivastava, No. 05-17-00998-CV, 2018 WL 833376, at *4 (Tex. App.—Dallas Feb. 12, 2018, orig. proceeding) (mem. op.)).
To seal or otherwise limit the distribution of filed records, courts must identify “a specific, serious and substantial interest which clearly outweighs” the general presumption of openness and any adverse consequences that sealing the document would have. Tex. R. Civ. P. 76a(1). Further, there must be no available less restrictive means of adequately protecting the identified interest. See id. at 76a(1)(b).
A court can only seal court records upon a written motion, which itself must be publicly available, and after public notice and an open hearing. See Tex. R. Civ. P. 76a(3)–(4). Any person may intervene during this process and appear at the public hearing. See id. at 76a(3)–(4), (7).
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 (Utah 2013) (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); see also Angilau v. United States, No. 2:16-00992-JED, 2017 WL 5905536, at *5-12 & n.14 (D. Utah Nov. 29, 2017) (ordering, under either common law right of access or constitutional right of access, public disclosure of 24-second, pixelated video of courtroom shooting submitted under seal as exhibit to summary judgment motion).
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.
In Virginia, “[t]here is a rebuttable presumption of public access to judicial records in civil proceedings.” Lotz v. Commonwealth, 277 Va. 345, 351, 672 S.E.2d 833, 836 (2009) (citations omitted).
The public’s qualified right of access to circuit court records under Virginia Code § 17.1-208(B) is “equivalent” to the public’s right of access under the First Amendment and Article I, Section 12 of the Virginia Constitution. See Daily Press, Inc. v. Commonwealth, 285 Va. 447, 456, 739 S.E.2d 636, 641 (2013). The presumptive right of access to judicial records includes the right to contemporaneously review them. See id. at 454, 739 S.E.2d at 640.
Although on its face, Virginia Code § 17.1-208 only applies to circuit courts, it was previously understood to apply with equal force to general district court records. See Doe v. Paradigm Mgmt. Co., 69 Va. Cir. 446, 448, 2006 WL 147592, *2 (Arlington Cir. Ct. Jan. 20, 2006) (“While the General District Court is not directly subject to Virginia Code § 17.1-208, the common law rule of openness embodied in that statute nonetheless applies [to] the General District Court.”). However, in 2018, the Virginia General Assembly enacted a new statute governing access to general district court records, Virginia Code § 16.1-69.54:1. See 2018 Acts of Assembly, c. 584 (S.B. 564). Effective July 1, 2019, § 16.1-69.54:1 provides:
Except where the nature or size of the request would interfere with the business of the court or with its use by the general public, or as otherwise provided by law, the requested court records or reports of aggregated, nonconfidential case data shall be provided to the requester within a reasonable period of time, given the nature of the request and the availability of staff to respond to the request, but in no event longer than 30 days from the date of a complete request made by a requester that is fully compliant with the requirements of this section and other applicable law.
Va. Code § 16.1-59.54:1(E). It remains to be seen how Virginia courts construe the statute, including when and how a request might be deemed to interfere with the business of the court, and whether such interference is grounds to deny access entirely.
The sealing of court records in civil and criminal cases is governed by the five-factor Bone-Club/Ishikawa test. Dreiling v. Jain, 151 Wn.2d 900, 915, 93 P.3d 861, 870 (2004). Under the Bone-Club/Ishikawa framework,
1) the proponent of closure or sealing must make some showing of the need for doing so, and where that need is based on a right other than an accused’s right to a fair trial, the proponent must show a “serious and imminent threat” to that right;
2) anyone present when the closure motion is made must be given an opportunity to object to the closure;
3) the proposed method for curtailing open access must be the least restrictive means available for protecting the threatened interests;
4) the court must weigh the competing interests of the proponent of closure and the public; and
5) the order must be no broader in its application or duration than necessary to serve its purpose.
Seattle Times Co. v. Ishikawa, 97 Wn.2d 30, 36–39 (1982); State v. Bone-Club, 128 Wn.2d 254, 258–59 (1995).
In addition to the Bone-Club/Ishikawa factors, decisions to seal or redact records must comply with state court General Rule 15. In re Dependency of M.H.P., 184 Wn.2d 741, 364 P.3d 94 (2015); State v. Waldon, 148 Wn. App. 952, 962-67, 202 P.3d 325 (2009). GR 15(c) permits court files and records to be sealed or redacted only after a hearing and written findings by the judge that compelling privacy or safety concerns outweigh public interest in access.
In West Virginia, both the West Virginia Constitution (article III, §17) and statutes (W. Va. Code § 51-4-2) provide a presumptive right of public access to court records. See State ex rel. Garden State Newspapers, Inc. v. Hoke, 205 W. Va. 611, 616, 520 S.E.2d 186, 191 (1999); Daily Gazette Co. v. Committee on Legal Ethics of the W. Va. State Bar, 174 W. Va. 359, 364, 326 S.E.2d 705, 710 (1984); State ex rel. Herald Mail Co. v. Hamilton, 165 W.Va. 103, 267 S.E.2d 544, 547–49 (1980). “‘The records and papers of every court shall be open to the inspection of any person, and the clerk shall, when required, furnish copies thereof, except in cases where it is otherwise specially provided.’ W.Va. Code § 51–4–2 (1981).” Syl. Pt. 1, Richardson v. Town of Kimball, 176 W. Va. 24, 24, 340 S.E.2d 582, 582 (1986). “Unless a statute provides for confidentiality, court records shall be open to public inspection.” Syl. Pt. 2, Richardson, 176 W. Va. at 24, 340 S.E.2d at 582.
With limited exceptions, Rule 10.04 of the West Virginia Trial Court Rules ( http://www.courtswv.gov/legal-community/court-rules/trial-court/chapter-1.html#rule10.04 ) mandates that “[a]ll persons are . . . entitled to full and complete information regarding the operation and affairs of the judicial system.” The only exceptions to this general rule are (a) when confidentiality is expressly provided by law or (b) a court order to “limit access to court files” pursuant to Rule 10.03 of the West Virginia Trial Court Rules ( http://www.courtswv.gov/legal-community/court-rules/trial-court/chapter-1.html#rule10.03 ).
Rule 10.04(d) of the West Virginia Trial Court Rules states: “The custodian of any court file or other public record shall furnish copies of the requested information or, in the alternative, furnish proper and reasonable opportunities for the inspection and examination of the court file or public record in his or her office during usual business hours. Reasonable facilities for taking memoranda or abstracts from the court file or other public record shall be provided. If the court file or public record requested exists in magnetic, electronic or computer form, when requested, the custodian of the records shall make copies available in the format in which it is stored on magnetic or electronic media.”
Rule 10.04(e) states: “The court, circuit clerk, or other court employee may charge a fee reasonably calculated to cover the actual cost of reproducing or otherwise making available the public records.”
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) (including “any court of law” among the "authorities” subject to the state’s open records statutes).
See C.L. v. Edson, 140 Wis. 2d 168, 181–82, 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.
“We have concluded . . . where statutes, common law, or court decisions have not limited the public’s right to examine records, ‘presumptively public records and documents must be open for inspection.’” Hathaway v. Joint Sch. Dist. No. 1, 116 Wis. 2d 388, 397, 342 N.W.2d 682 (1984) (citation omitted).