A. In general
The Tenth Circuit has noted that “[c]ourts have long recognized a common-law right of access to judicial records.” United States v. Apperson, 642 Fed. Appx. 892, 898 (10th Cir. 2016) (quoting Mann v. Boatright, 477 F.3d 1140, 1149 (10th Cir. 2007) (internal quotation marks omitted). The Court goes on to acknowledge that “[t]he right is an important aspect of the overriding concern with preserving the integrity of the law enforcement and judicial processes.” Id. at 899 (quoting United States v. Hickey, 767 F.2d 705, 708 (10th Cir. 1985) (internal quotation marks omitted). Further, “[c]onsistent with this presumption that judicial records should be open to the public, the party seeking to keep records sealed bears the burden of justifying that secrecy.” Id. (quoting United States v. Pickard, 733 F.3d 1297, 1302 (10th Cir. 2013) (internal quotation marks omitted)).
The Second Circuit has held that the First Amendment "does not distinguish between criminal and civil proceedings," but rather "protects the public against the government's arbitrary interference with access to important information." Newsday LLC v. Cty. of Nassau, 730 F.3d 156, 164 (2d Cir. 2013).
When a district court initially considers a request to seal a file or to approve or take other protective measures, it enjoys considerable discretion in determining whether good cause exists to overcome the presumption of open access to documents filed in our courts. Geller v. Branic Int'l Realty Corp., 212 F.3d 734, 738 (2d Cir. 2000) (quoting Martindell v. Int'l Tel. & Tel. Corp., 594 F.2d 291, 296 (2d Cir. 1979) (citation omitted). “However, after a district court has approved a sealing order, discretion of that breadth no longer exists.” Id. For example, “[a]lthough a district court has power to modify a protective order . . . , the required showing must be more substantial than the good cause needed to obtain a sealing order in the first instance.” Id.
“It is well settled that the public and press have a qualified right of access to judicial documents and records filed in civil and criminal proceedings.” Doe v. Pub. Citizen, 749 F.3d 246, 265 (4th Cir. 2014) (citations omitted); see also Va. Dep't of State Police v. Wash. Post, 386 F.3d 567, 580 (4th Cir. 2004) (observing that in some instances, the public interest in access may be as strong as, or stronger than, in most criminal cases) (quoting Gannett Co. v. DePasquale, 443 U.S. 368, 386 n. 15 (1979)). “Publicity of such records, of course, is necessary in the long run so that the public can judge the product of the courts in a given case.” Columbus-Am. Discovery Grp. v. Atl. Mut. Ins. Co., 203 F.3d 291, 303 (4th Cir. 2000).
The mere filing of a document does not trigger the public’s right of access. See In re Policy Mgmt. Sys., 67 F.3d 296 (4th Cir. 1995) (per curiam) (citing United States v. Amodeo, 44 F.3d 141, 145 (2d Cir.1995)). Rather, the public’s rights of access under the First Amendment and the common law only attach to “judicial records.” In re U.S. for an Order Pursuant to 18 U.S.C. Section 2703(D), 707 F.3d 283, 290 (4th Cir. 2013). A document is a judicial record if it plays a role in the adjudicative process or adjudicates substantive rights. Id.; see also Rushford v. New Yorker Magazine, Inc., 846 F.2d 249, 252 (4th Cir. 1988). Assuming the document is a judicial record, the source of the public’s right of access (common law vs. First Amendment) depends on the circumstances in which the record is submitted. See Rushford, 846 F.2d at 252.
Settlement of a case before a final adjudication on the merits does not, by itself, affect either the status of filings as judicial records or the public’s right of access thereto. Cross Creek Seed, Inc. v. Gold Leaf Seed Co., No. 1:16-cv-1432, 2018 WL 1116565, *3 (M.D.N.C. Feb. 26, 2018) (citing Bernstein v. Bernstein Litowitz Berger & Grossmann LLP, 814 F.3d 132, 140 (2d Cir. 2016)).
The fact that a document was exchanged pursuant to a protective order entered by the court is not dispositive of whether the document should be made available to the public if the document is subsequently filed with the court. Parties may not, by agreement, bypass the presumption of public access to judicial documents. See Cochran v. Volvo Grp. N. Am., LLC, 931 F. Supp. 2d 725, 729 (M.D.N.C. 2013) (citing In re Violation of Rule 28(D), 635 F.3d 1352, 1358 (Fed. Cir. 2011); Sensormatic Sec. Corp. v. Sensormatic Elecs. Corp., 455 F. Supp. 2d 399, 437-38 (D. Md. 2006)).
A request to file a redacted document is, in effect, a motion to seal invoking the substantive and procedural protections attendant to the public’s right of access. See Automation, Inc. v. Applied Robotics, Inc., 801 F. Supp. 2d 419, 424–25 (M.D.N.C. 2011) (collecting cases); see also Martin v. Am. Honda Motor Co., 940 F. Supp. 2d 277, 279 (D. S.C. 2013) (“Honda attempts to distinguish Rule 5.03(E) on the basis that this is a motion to redact, not a motion to seal. However, the result Honda seeks is the same—removal of any reference to the settlement amount in a filed document.”).
The Fifth Circuit has recognized a common-law right to inspect and copy judicial records, but that right is not absolute and will generally only apply to “original records.” Pratt v. Dennis, 511 F.3d 483, 485 (5th Cir. 2007). Audiotapes which constitute original records may be obtained, but back-up tapes of a stenographer’s transcript do not constitute original records and may only be obtained if there is reason to doubt the accuracy of the stenographer’s transcript. Id.
The right of access to judicial records is greater than a right to the information in the records. Sec. & Exch. Comm’n v. Van Waeyenberghe, 990 F.2d 845, 848 (5th Cir. 1993). Therefore, merely providing the public with details and information about what transpired in court proceedings or settlements is not equivalent to allowing access to the actual records. Id.
The presumption of access to judicial records extends to civil cases, “because the contribution of publicity is just as important there. . . . In fact, mistakes in civil proceedings may be more likely to inflict costs upon third parties, therefore meriting even more scrutiny.” Grove Fresh Distribs., Inc. v. Everfresh Juice Co., 24 F.3d 893, 897 (7th Cir. 1994). “Documents that affect the disposition of federal litigation are presumptively open to public view, even if the litigants strongly prefer secrecy, unless a statute, rule, or privilege justifies confidentiality.” In re Specht, 622 F.3d 697, 701 (7th Cir. 2010) (citing Baxter International, Inc. v. Abbott Laboratories, 297 F.3d 544 (7th Cir.2002); Union Oil Co. of California v. Leavell, 220 F.3d 562 (7th Cir. 2000)); see also GEA Group AG v. Flex-N-Gate Corp., 740 F.3d 411, 419-20 (7th Cir. 2014); In re Continental Illinois Secs. Litig., 732 F.2d 1302, 1308 (7th Cir. 1984).
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.
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.
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 Court of Appeals 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 Committee 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. Financial Stability Oversight Council, 865 F.3d 661 (D.C. Cir. 2017).
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. 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 (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.
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.
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).
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).
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.”
See Wis. Stat. § 19.35(1)(a):
Except as otherwise provided by law, any requester has a right to inspect any record. Substantive common law principles construing the right to inspect, copy or receive copies of records shall remain in effect.
See Wis. Stat. § 19.32(1): “'Authority' means any of the following having custody of a record: … any court of law …."
See C.L. v. Edson, 140 Wis. 168, 409 N.W.2d 417 (Wis. App. 1987):
We conclude that due to the amendment [to Wis. Stat. § 19.32(1)], the legislature intended the courts to apply the ch. 19 balancing test to questions involving disclosure of court records.
We first stress that public records, including court documents, are subject to a strong presumption favoring their disclosure. … In order to overcome the presumption favoring disclosure, under the Hathawaytest, the original parties must show that public interests favoring secrecy outweigh those favoring disclosures.