A. Interests often cited in opposing a presumption of access
When determining whether the court should allow access to certain judicial proceedings, the Tenth Circuit has held that “the decision as to access is one best left to the sound discretion of the trial court, a discretion to be exercised in light of the relevant facts and circumstances of the particular case.” United States v. Hickey, 767 F.2d 705, 708 (10th Cir. 1985). The Tenth Circuit has noted that even if a court agrees that there is a presumption of access to proceedings or records, the presumption may be rebutted “if countervailing interests heavily outweigh the public interests in access.” Mann v. Boatright, 477 F.3d 1140, 1149 (10th Cir. 2007). The following interests are often cited in opposing a presumption of access.
First, parties opposing access often cite “fair trial interests at stake.” United States v. McVeigh, 119 F.3d 806, 815 (10th Cir. 1997).
Second, a government’s interest in denying access in order to continue anonymity of a witness in the witness protection program is a “compelling” interest. United States v. Hickey, 767 F.2d 705, 708 (10th Cir. 1985). “If the common law right of access were absolute . . . the efficacy of the witness protection program would be substantially at risk.” Id. at 709.
Fourth, the Tenth Circuit has recognized that among the compelling interests that may rebut the presumption of access, “a strong national-security interest” may require sealing of records. United States ex rel. Reed v. KeyPoint Gov’t Sols., 923 F.3d 729 n.22 (10th Cir. 2019).
Finally, the Tenth Circuit has recognized that among the compelling interests that may rebut the presumption of access is protecting a sexual assault victim’s privacy. See, e.g., United States v. Galloway, 963 F.2d 1388, 1390 (10th Cir. 1992).
Protection of Undercover Officers or Witnesses
The Eleventh Circuit does not address this topic, although district judges are likely to protect the identity of such witnesses.
Trade Secrets and Protected Information
The Eleventh Circuit has held that information disclosed during discovery that qualifies as a "trade secret" (and subject to a protective order) may be exempt from the common law right of access if the information is filed in connection with a discovery motion as opposed to a motion that could decide the merits of the case. Chicago Tribune Co. v. Bridgestone/Firestone, Inc., 263 F.3d 1304, 1312–1314 (11th Cir. 2001). Under Federal Rule of Civil Procedure 26(c), courts can enter protective orders requiring that confidential research, development, or commercial information not be revealed or to be revealed only in a designated way. Chicago Tribune Co., 263 F.3d at 1313. In order for a protective order to be granted on these grounds, the party seeking protection must make a showing of "good cause," which the court will analyze by balancing the interests in question. Id. In order for information to be considered a trade secret, the party seeking protection must have treated the information as closely guarded secrets, show that the information represents substantial value to them, show that the information would be valuable to their competitors, and that it derives its value by virtue of the effort of its creation and lack of dissemination. Id. at 1313.
National Security and State Secrets
There is no First Amendment guarantee of a right of access to all sources of information within governmental control. Houchins v. KQED, Inc., 438 U.S. 1, 9 (1978). In Wilson v. American Motors Corp., the Eleventh Circuit acknowledged but did not decide to accept or reject the Sixth Circuit’s holding that certain privacy rights of participants or third parties, trade secrets, and national security are virtually the only reasons which would justify total closure of public records. 759 F.2d 1568, 1570-1571 (11th Cir. 1985) (citing Brown & Williamson Tobacco Corp. v. F.T.C., 710 F.2d 1165, 1179 (6th Cir. 1983)).
In M.N.C. of Hinesville, Inc. v. U.S. Dep't of Defense, the Eleventh Circuit recognized that the location where a speaker conveys or wishes to convey its message is relevant in deciding whether government regulation of that speech is permissible. 791 F.2d 1466, 1472 (11th Cir. 1986). The court held that the restrictions on First Amendment access on military base for a military base newspaper were reasonable because the forum was not public and because of national security interests. Id. at 1473, 1476.
Sexual Assault Issues
In Globe Newspaper Co. v. Superior Court, the Supreme Court reversed a court order excluding the press and public from the courtroom during the trial of a defendant charged with rape of three minor girls. 457 U.S. 596, 600 (1982). The Court reasoned that while a court may deny right of access to inhibit the disclosure of sensitive information, like the information in the Globe Newspaper case, "it must be shown that the denial is necessitated by a compelling governmental interest, and is narrowly tailored to serve that interest. Id. at 606-607.
In LaPlante v. Crosby, the Eleventh Circuit held, in an unpublished decision, that the exclusion of the public during a six-year-old child's testimony regarding sexual battery was appropriate under the four-factor test established in Waller v. Georgia. 133 F. App’x. 723, 724-726 (11th Cir. 2005) (citing Waller v. Georgia, 467 U.S. 39 (1984)). The four factors are:
 the party seeking to close the hearing must advance an overriding interest that is likely to be prejudiced,  the closure must be no broader than necessary to protect that interest,  the trial court must consider reasonable alternatives to closing the proceeding, and  it must make findings adequate to support the closure.
The Court in Waller “determined that the closure in that case was plainly not justified because (1) ‘the State's proffer was not specific’; (2) ‘the trial court's findings were broad and general’; (3) ‘[t]he court did not consider alternatives to immediate closure of the entire hearing"; and (4) "the closure was far more extensive than necessary.’" LaPlante, 133 F. App’x at 725 (quoting Waller, 467 U.S. at 48–49).
More recently, in Enriquez v. Secretary, Department of Corrections, the Eleventh Circuit, in an unpublished opinion, upheld a partial closure of the courtroom in a case about the sexual battery of a minor. 662 F. App’x. 650, 656 (11th Cir. 2016). The court reasoned that the Waller test was inapplicable in cases of partial closure and that the standard for partial closures was to find a substantial reason justifying the partial closure of the court room. Id.
In Cochran v. United States, the Eleventh Circuit addressed the issue of an individual's right to protection of privacy against the public's right to disclosure. 770 F.2d 949, 955 11th Cir. (1985). The Eleventh Circuit employed a balancing test to address this issue. Id.
Even where a court finds a constitutional presumption of access to proceedings or records, that presumption can be rebutted “by an overriding interest based on findings that closure is essential to preserve higher values and is narrowly tailored to serve that interest.” Press-Enterprise Co. v. Superior Court (Press-Enterprise I), 464 U.S. 501, 510 (1984).
Fair trial rights
In Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 580 (1980) and subsequent cases, the Supreme Court recognized that the Sixth Amendment right to a fair trial can sometimes overcome the presumption of openness. But it added that “although the Sixth Amendment guarantees the accused a right to a public trial, it does not give a right to a private trial.” Id. Because “[t]here was no suggestion that any problems with witnesses could not have been dealt with by their exclusion from the courtroom or their sequestration during the trial” or that “sequestration of the jurors would not have guarded against their being subjected to any improper information,” the fair trial right could not trump the presumption of access. Indeed, the right to a fair trial is intertwined with the right to a public trial in so far as one of the primary purposes served by requiring public trials is to protect the fairness of them.
The First Circuit has held that defendants’ fair trail rights represent a compelling interest and that “[w]hen that right collides head-on with the public’s right of access to judicial records, the defendant’s fair trial right takes precedence. In re Providence Journal Co., Inc., 293 F.3d 1, 13 (1st Cir. 2002). The court explained:
That does not mean, however, that the public’s (and the media’s) right to know can be frustrated by the mere invocation of a threat to the accused’s Sixth Amendment right to a fair trial. A court faced with an impending collision between these rights must, on a case-specific basis, construct a balance. That weighing must proceed on the assumption that restrictions on access to presumptively public judicial documents should be imposed only if a substantial likelihood exists that the accused’s right to a fair trial will otherwise be prejudiced. We caution that this inquiry requires specific findings; the First Amendment right of public access is too precious to be foreclosed by conclusory assertions or unsupported speculation.
Id. (citations omitted). The court agreed that a district court’s finding that fair trial rights were substantially threatened was “objectively reasonable” where the court had identified “specific incidents,” unlawful leaks of information in violation of the Federal Rules of Criminal Procedure, and “misconduct by the lead prosecutor.” Id.
The First Circuit then addressed whether “a trial court, in a particular case, can adopt a procedure that reverses the presumption of public access and automatically seals all subsequent filings until the judge determines that a specific document poses no undue risk to the defendant’s fair trial rights.” Id. at 14 (emphasis in original). The court agreed that doing so was not reversible error, so long as the procedure incorporates certain safeguards:
First, where, as here, a court undertakes to screen documents before they are placed in the case file, the procedure should incorporate a specific timetable obligating the court to perform its self-imposed screening responsibilities promptly and to render a timely decision as to whether a particular document is fit for public disclosure. Second, and relatedly, the court below decided to refrain from reviewing each individual memorandum to decide whether it could be made available to the public until after the time had expired for the submission of any possible reply memorandum. This unnecessarily prolongs the process. Each individual memorandum either contains restricted information (in which case it is subject to redaction or sealing) or it does not (in which case it does not pose a threat to the defendants’ Sixth Amendment rights). Third, the order contains no provision as to whether the court intends to unseal retained memoranda at some point after the trial has ended (and if so, when).
Id. at 15. With regard to timing, the First Circuit has held that even short delays cannot be squared with the right to access court records. Globe Newspaper Co. v. Pokaski, 868 F.2d 497, 507 (1st Cir. 1989) (“[E]ven a one or two day delay impermissibly burdens the First Amendment.”).
The First Circuit also required that such a procedure incorporate a redact-and-release approach to sealing. “Finally, we think that the district court’s refusal to consider redaction on a document-by-document basis is insupportable. Courts have an obligation to consider all reasonable alternatives to foreclosing the constitutional right of access. Redaction constitutes a time-tested means of minimizing any intrusion on that right.” Id. The First Circuit found fault in a generalized finding by the district court that references to confidential grand jury matters were “almost invariably dispersed throughout the memoranda and inextricably intertwined with the references to applicable legal authority.” Id. Instead, “the First Amendment requires consideration of the feasibility of redaction on a document-by-document basis, and the court’s blanket characterization falls well short of this benchmark.” Id.; see also Bradford & Bigelow, Inc. v. Richardson, 109 F. Supp. 3d 445, 449 (D. Mass. 2015) (“[A]ny sealing” must be “narrowly tailored to shield as little from public view as possible.”).
National security and state secrets
No reported First Circuit cases identified.
Sexual assault issues
In Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 602‑03 (1982), the Supreme Court recognized the First Amendment access right and struck down a statute that required “the exclusion of the press and general public during the testimony of a minor victim in a sex-offense trial.” It added, however, that the presumption of public access “does not mean, however, that for purposes of this inquiry the court cannot protect the minor victim by denying these representatives the opportunity to confront or cross-examine the victim, or by denying them access to sensitive details concerning the victim and the victim’s future testimony. Such discretion is consistent with the traditional authority of trial judges to conduct in camera conferences.” Id. at 609 n.25.
The Supreme Court has recognized that, under some circumstances, privacy interests can overcome a presumption of access. In Press-Enterprise Co. v. Superior Court (Press-Enterprise I), 464 U.S. 501, 512 (1984), for example, the Court held that despite the presumption of access “a valid privacy right may rise to a level that part of the transcript should be sealed, or the name of a juror withheld, to protect the person from embarrassment.”
The First Circuit has held that records cannot be sealed on basis of generalized reputational or privacy interests. Globe Newspaper Co. v. Pokaski, 86 F.2d 497, 507-09 (1st Cir. 1989). However, privacy rights can limit the presumptive right of access to judicial records where “specific, severe harm” would result from disclosure. FTC, 830 F.2d at 412. “[P]rivacy rights of participants and third parties are among those interests which, in appropriate cases, can limit the presumptive right of access to judicial records.” Id. at 411; see also United States v. Kravetz, 706 F.3d 47, 53, 57 (1st Cir. 2013) (letters submitted to district court in connection with sentencing containing “discussion of the ill health of members of the authors’ families, incidents of domestic violence, and other domestic relations matters information . . . is highly personal and appears to have no direct bearing upon the public’s assessment of the sentences imposed [and] may overcome the presumption of public access”).
Where “the public’s right of access competes with privacy rights,” the court should, after weighing competing interests, “edit and redact a judicial document in order to allow access to appropriate portions of the document.” United States v. Kravetz, 706 F.3d 47, 53, 62-63 (1st Cir. 2013).
A “fear of adverse publicity” is not sufficient and a seal justified by such concerns is improper. Siedle, 147 F.3d at 10. “The mere fact that judicial records may reveal potentially embarrassing information is not in itself sufficient reason to block public access.” Id.; see also United States v. Kravetz, 706 F.3d 47, 53, 62-63 (1st Cir. 2013) (“[A] fear of adverse publicity . . . is insufficient to defeat public access.”).
With regard to medical information submitted to the court for purposes of sentencing, the First Circuit has distinguished between “diagnosis and treatment information that is likely to form the basis of a plea for or grant of leniency” and “peripheral information” such as “the details of a person’s family history, genetic testing, history of diseases and treatments, history of drug use, sexual orientation and practices, and testing for sexually transmitted diseases.” United States v. Kravetz, 706 F.3d 47, 53, 63 (1st Cir. 2013). The court noted that “redaction remains a viable tool for separating this information from that which is necessary to the public’s appreciation of the sentence imposed.” Id.
The First Circuit has also noted that privacy objections to disclosure of judicial records “may lose some force” when the supposedly private information has previously been made available to the public. United States v. Kravetz, 706 F.3d 47, 53, 63 (1st Cir. 2013); see also Globe Newspaper Co. v. Pokaski, 868 F.2d 497, 506 n.17 (1st Cir 1989) (“[W]hile prior publicity weighs strongly against sealing, we do not believe it presents an insurmountable obstacle.”).
With regard to commercial interests, the First Circuit has suggested that bad publicity seldom if ever will be sufficient to close proceedings or records the public. “Trials after all commonly generate bad publicity for defendants. Specific pieces of evidence are only details of a larger picture, often a very disparaging one, created by reports of the case in the press. This publicity may be unfair or distorted, but the injury is the price paid for open trials. At least in the absence of extraordinary circumstances, commercial embarrassment is not a ‘compelling reason’ to seal a trial record.” Poliquin v. Garden Way, 989 F.2d 527, 533 (1st Cir. 1993).
Sitting en banc, the Second Circuit held that limited closure of trial testimony of only the undercover officer in a criminal prosecution was justified by the state’s interest in maintaining the effectiveness of the undercover officer. Ayala v. Speckard, 131 F.3d 62 (2d Cir. 1997) (allowing the transcript to be made available to press). Furthermore, the Second Circuit has held that “the more extensive is the closure requested, the greater must be the gravity of the required interest and the likelihood of risk to that interest.” United States v. Fernandez, 590 F. App'x 117, 119 (2d Cir. 2015) (quoting id.).
Bankruptcy proceeding records that include trade secrets and confidential commercial information may be sealed. See In re Orion Pictures Corp., 21 F.3d 24 (2d Cir. 1994). Additionally, an interested party seeking to seal records need only show that the information is commercial in nature; the information does not necessarily need to rise to the level of a trade secret. Id.; Bankr. Code, 11 U.S.C.A. § 107(b).
There is no right of access to material the government asserts contain state secrets. See Doe v. CIA, 2009 U.S. App. LEXIS 17380 (2d Cir. Aug. 5, 2009). To determine whether a defendant has the right to present a defense that displaces the state-secrets privilege, the court applies the test introduced in Roviaro v. United States, asking: (1) whether the material in dispute is discoverable, and if so, whether the state-secrets privilege applies; and (2) if the privilege applies, whether the information is helpful or material to the defense, that is, useful to counter the government's case or to bolster a defense. 353 U.S. 53 (1957); see also United States v. Abu-Jihaad, 630 F.3d 102 (2d Cir. 2010). For example, In United States v. Aref, the Second Circuit affirmed the district court’s denial of access to classified information presented at trial because the government established a reasonable danger that disclosure would jeopardize national security. 533 F.3d 72 (2d Cir. 2008); see also Zuckerbraun v. Gen. Dynamics Corp., 935 F.2d 544 (2d Cir. 1991) (holding that the Secretary of the Navy properly invoked the state secrets privilege in action against missile defense systems designers, manufacturers, and testers for wrongful death of sailor who was killed when his ship was fired on by foreign aircraft).
The Second Circuit follows the Supreme Court’s ruling in Globe Newspaper Co. v. Superior Court which held that state statutes cannot exclude the press and public from testimony of minor victims of sex crimes without a case-by-case determination that compelling interests of the state require exclusion. 457 U.S. 596, 602‑03 (1982). In doing so, however, courts turn to the question of whether good reasons can be found for restricting the means of public access and the types of media coverage—especially where the restriction precludes the public at large from gaining any meaningful acquaintance with the conduct of court business. Westmoreland v. CBS Inc., 596 F. Supp. 1166, 1168 (S.D.N.Y.), aff'd, 752 F.2d 16 (2d Cir. 1984).
The presumption of public access to documents used by parties moving for, or opposing, summary judgment can be overcome only by compelling reasons. Gambale v. Deutsche Bank AG, 377 F.3d 133 (2d Cir. 2004); see United States v. Basciano, No. 03-CR-929 (NGG), 2007 WL 1827330, at *1 (E.D.N.Y. June 25, 2007) (holding that the victim’s wife’s privacy interest superseded the media’s presumption of access to the photograph as it was admitted to evidence). But see United States v. Madoff, 626 F. Supp. 2d 420 (S.D.N.Y. 2009) (holding that the presumption of access outweighed privacy rights of victims who did not object to disclosure of their identifying information).
The interests that courts have found sufficiently compelling to overcome the public’s First Amendment right of access include a defendant's right to a fair trial before an impartial jury; protecting the privacy rights of trial participants such as victims or witnesses; and risks to national security. Doe v. Pub. Citizen, 749 F.3d 246, 269 (4th Cir. 2014) (citations omitted).
Where a criminal defendant seeks to restrict the public’s First Amendment right of access on the basis of his Sixth Amendment right to a fair trial, the defendant must show that (1) there is a substantial probability that the defendant's right to a fair trial will be prejudiced by publicity; (2) there is a substantial probability that closure would prevent that prejudice; and (3) reasonable alternatives to closure cannot adequately protect the defendant's fair trial rights. In re S.C. Press Ass'n, 946 F.2d 1037, 1041 (4th Cir. 1991) (quoting In re State Record Co., Inc., 917 F.2d 124, 128 (4th Cir.1990)); accord In re Charlotte Observer, 882 F.2d 850 (4th Cir. 1989) (citing Press–Enterprise Co. v. Superior Court of California (Press-Enterprise II), 478 U.S. 1, 14 (1986)).
Pretrial publicity is not, in and of itself, a reason to allow access, see In re U.S. for an Order Pursuant to 18 U.S.C. Section 2703(D), 707 F.3d 283, 294 (4th Cir. 2013) (“The mere fact that a case is high profile in nature does not necessarily justify public access.”), or to restrict it, see In re Murphy-Brown, LLC, 907 F.3d 788, 798 (4th Cir. 2018) (“The judicial process does not run and hide at those moments when public appraisal of its workings is most intense.”) (vacating gag order). The question is whether the trial judge finds it likely that he or she will be unable to guide a jury to an impartial verdict. In re Murphy-Brown, LLC, 907 F.3d at 798. The Fourth Circuit has emphasized the effectiveness of voir dire in mitigating against potential jury taint, and, therefore, as a reasonable alternative to restricting public access to pretrial proceedings and records. See In re Charlotte Observer, 882 F.2d 850, 855–56 (4th Cir. 1989); Matter of Application & Affidavit for a Search Warrant, 923 F.2d 324, 329–30 (4th Cir. 1991).
The Fourth Circuit has noted its “complete agreement with the general principle that a compelling governmental interest exists in protecting the integrity of an ongoing law enforcement investigation.” Va. Dep't of State Police v. Wash. Post, 386 F.3d 567, 579 (4th Cir. 2004). “However, not every release of information contained in an ongoing criminal investigation file will necessarily affect the integrity of the investigation. Therefore, it is not enough simply to assert this general principle without providing specific underlying reasons for the district court to understand how the integrity of the investigation reasonably could be affected by the release of such information. Whether this general interest is applicable in a given case will depend on the specific facts and circumstances presented in support of the effort to restrict public access.” Id.
A district court in the Fourth Circuit has observed that after indictment but before arrest, the government has a compelling interest in preventing the accused from avoiding arrest, destroying or tampering with evidence, or otherwise interfering with the prosecution; securing privacy rights or confidential sources of information; and protecting the public. See In re Application of Reporters Committee for Freedom of the Press To Unseal Criminal Prosecution of Julian Assange, No. 1:18-mc-37, 2019 WL 366869, *3 (E.D. Va. Jan. 30, 2019); see also Fed. R. Crim. P. 6(e)(4) (“The magistrate judge to whom an indictment is returned may direct that the indictment be kept secret until the defendant is in custody or has been released pending trial.”).
There is no question about the propriety of excising the name of a confidential informant from judicial records. In re Knight Pub. Co., 743 F.2d 231, 236 (4th Cir. 1984).
National security concerns about confidentiality may sometimes warrant closure during sensitive portions of trial proceedings, such as testimony about state secrets. Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 598 n.24 (1980). However, a generalized assertion of national security concerns by the Government is not sufficient reason to close a hearing or deny access to documents. United States v. Moussaoui, 65 F. App'x 881, 887 (4th Cir. 2003); accord United States v. Rosen, 487 F. Supp. 2d 703, 717 (E.D. Va. 2007). See also In re Washington Post Co., 807 F.2d 383, 392 (4th Cir. 1986) (“A blind acceptance by the courts of the government's insistence on the need for secrecy, without notice to others, without argument, and without a statement of reasons, would impermissibly compromise the independence of the judiciary and open the door to possible abuse.”).
The government’s interest in protecting classified information is sufficiently compelling to overcome the public’s right of access. United States v. Moussaoui, 65 F. App'x 881, 887 (4th Cir. 2003)
The privacy interests of a person’s personnel file may suffice to overcome a common law and First Amendment right of access, particularly when the subject of the personnel file is not a party to the underlying action and the files are not directly at issue. See Guessford v. Pennsylvania Nat'l Mut. Cas. INS. Co., No. 1:12-cv-260, 2014 WL 12594127, *4 (M.D.N.C. Sept. 30, 2014). Compare In re Voluntary Disclosures in Fifty-Five Closed Cases, No. 7:16-cr-00044-MFU, 2018 WL 3540281, *6 (W.D. Va. July 23, 2018) (denying motion to seal where the requesting party filed his own personnel records).
Particularly in the employment discrimination context, district courts in the Fourth Circuit have noted the high standard that must be met to warrant the sealing of court filings. See Thomas v. Delmarva Power & Light Co., No. CV RDB-15-433, 2016 WL 9685172, *2 n.2 (D. Md. Nov. 1, 2016) (citing Brown v. Lorings, 2014 WL 6687120, *2 (D. Md. Nov. 25, 2014)); Simpson v. Technology Serv. Corp., 2015 WL 6447253, *3 (D. Md. Oct. 22, 2015).
“[A]s the first step in determining whether the information sought is entitled to privacy protection, courts have looked at whether it is within an individual's reasonable expectations of confidentiality.” Jennings v. Univ. of N. Carolina at Chapel Hill, 340 F. Supp. 2d 679, 683 (M.D.N.C. 2004) (quoting Walls v. City of Petersburg, 895 F.2d 188, 192 (4th Cir.1990)).
Where the moving party has a compelling interest in protecting sensitive medical information, it is appropriate to redact the confidential information, not seal the records in their entirety. See Rock v. McHugh, 819 F. Supp. 2d 456, 475–76 (D. Md. 2011) (denying motion to seal the complaint and summary judgment briefs in their entirety).
A corporation may possess a strong interest in preserving the confidentiality of its proprietary and trade-secret information, which in turn may justify partial sealing of court records. Doe v. Pub. Citizen, 749 F.3d 246, 269 (4th Cir. 2014) (citing Nixon v. Warner Commc’ns, Inc., 435 U.S. 589, 598 (1978)); LifeNet Health v. LifeCell Corp., No. 2:13-cv-486, 2015 WL 12516758, *2 (E.D. Va. Jan. 9, 2015) (denying motion to seal portions of trial transcript without prejudice to the moving party to propose redactions limited to the confidential information to be protected); see also Woven Elecs. Corp. v. Advance Grp., 930 F.2d 913 (4th Cir. 1991) (“The existence of this exception does not mandate the closure of every trial that involves trade secrets, however.”). Generalized statements concerning confidentiality are not sufficient to justify restrictions on public access. See Erichsen v. RBC Capital Markets, LLC, 883 F. Supp. 2d 562, 575 (E.D.N.C. 2012) (denying motion to seal exhibits to motion to compel arbitration).
The mere existence of confidentiality clause in a contract is not dispositive as to whether the contract can be filed under seal. See id. at 574; Lifenet Health v. Lifecell Corp., No. 2:13-cv-486, 2015 WL 12517430, *3–4 (E.D. Va. Feb. 12, 2015).
A corporation’s private interest in protecting merely confidential and commercially sensitive information is not sufficiently compelling, absent a claim of trade secret status, to overcome the public’s First Amendment right of access to judicial records. See Level 3 Commc'ns, LLC v. Limelight Networks, Inc., 611 F. Supp. 2d 572, 591 (E.D. Va. 2009). Furthermore, there is no compelling interest in protecting commercially sensitive information when the information has already been released publicly by the party that wishes to restrict access. See Benedict v. Hankook Tire Co., 323 F. Supp. 3d 747, 766 (E.D. Va. 2018) (citations omitted).
Courts generally accept a claim of privilege, including the attorney-client privilege, as capable of overriding the presumption of public access and thereby justifying redaction of documents. United States ex rel. Thomas v. Duke Univ., No. 1:17-CV-276, 2018 WL 4211375, *6 (M.D.N.C. Sept. 4, 2018) (collecting cases).
A protective order regulates the parties’ extrajudicial conduct but is not sufficient, by itself, to justify the continued sealing of filings in court. Visual Min., Inc. v. Ziegler, No. PWG-12-3227, 2014 WL 690905, *5 (D. Md. Feb. 21, 2014) (citing Va. Dep't of State Police v. Wash. Post, 386 F.3d 567, 576 (4th Cir. 2004)); see also United States ex rel. Thomas v. Duke Univ., No. 1:17-cv-276, 2018 WL 4211375, *13 (M.D.N.C. Sept. 4, 2018) (“The designation of documents as confidential under a protective order does not require automatic sealing, as ‘courts in the Fourth Circuit have made it clear that the mere fact that a document was subject to a blanket protective order does not relieve the parties or a court of the obligation to comply with the Fourth Circuit’s otherwise applicable sealing regimen.’”) (quoting Colony Ins. Co. v. Peterson, No. 1:10-cv-581, 2012 WL 1047089, *2 (M.D.N.C. Mar. 28, 2012)).
A bare allegation of reputational harm is not sufficient to overcome the public’s right of access under the First Amendment or the common law. See Doe v. Pub. Citizen, 749 F.3d 246, 269 (4th Cir. 2014). “When parties ‘call on the courts, they must accept the openness that goes with subsidized dispute resolution by public (and publicly accountable) officials.’” Id. at 271 (quoting Union Oil Co. of California v. Leavell, 220 F.3d 562, 568 (7th Cir. 2000)); see also Qayumi v. Duke Univ., No. 1:16-cv-1038, 2018 WL 2025664, *3 (M.D.N.C. May 1, 2018) (“The ‘mere fact’ that a public filing ‘may lead to a litigant’s embarrassment will not, without more, compel the court to seal its records.’”) (quoting Kamakana v. City & Cty. of Honolulu, 447 F.3d 1172, 1179 (9th Cir. 2006)).
Safeguarding the physical and psychological well-being of a minor victim is a compelling interest, but it does not mandate closure; restricting public access must be considered on a case-by-case basis. Globe Newspaper Co. v. Super. Ct., 457 U.S. 596, 607–08 (1982) (striking down state statute that required, without exception, closure during testimony of minor victim of sexual offense); see also Bell v. Jarvis, 236 F.3d 149, 167–68 (4th Cir. 2000) (order closing courtroom during testimony of minor victim violated criminal defendant’s Sixth Amendment right to a public trial). Where sealing is appropriate to protect the well-being of a minor or other family member, only the portion of the judicial record implicating the minor’s well-being should be redacted. See United States v. Harris, 890 F.3d 480 (4th Cir. 2018) (remanding with instructions to produce redacted copy of sentencing memorandum).
District courts in the Fourth Circuit have found that redaction or sealing of information related to alleged sexual abuse victims serves a compelling government interest. Painter v. Doe, No. 3:15-cv-369-, 2016 WL 3766466, *4 (W.D. N.C. July 13, 2016) (citing Alexander v. City of Greensboro, 2013 WL 6687248, *5 (M.D.N.C. Dec. 18, 2013); Wilmink v. Kanawha Cnty. Bd. of Educ., 2006 WL 456021 at *3 (S.D. W. Va. Feb. 23, 2006)).
The Family Educational Rights and Privacy Act (“FERPA”) can establish a compelling interest in protecting the privacy of education records, as that term is defined by FERPA. See Painter v. Doe, No. 3:15-cv-369, 2016 WL 3766466, *4 (W.D.N.C. July 13, 2016) (granting emergency motion to seal transcript of college judicial proceeding filed with the complaint); but see Jennings v. Univ. of N. Carolina at Chapel Hill, 340 F. Supp. 2d 679, 682 (M.D.N.C. 2004) (“While FERPA may show that Congress has recognized a student's interest in the privacy of her educational records, the legal action exception contained in the regulations limits that interest.”) (denying motion to seal academic transcript filed in connection with a motion for summary judgment).
The public has a legitimate interest in seeing how colleges respond to sexual assault complaints. Qayumi v. Duke Univ., No. 1:16-cv-1038, 2018 WL 2025664, *3 (M.D.N.C. May 1, 2018) (citing Doe v. Temple Univ., No. 14–4729, 2014 WL 4375613, *2 (E.D. Pa. Sept. 3, 2014)).
There is no compelling interest in restricting public access to information that would otherwise support closure if the information is already public. See Va. Dep't of State Police v. Wash. Post, 386 F.3d 567, 579 (4th Cir. 2004) (citing In re Charlotte Observer, 921 F.2d 47, 50 (4th Cir.1990)); see also Glaxo Grp. v. Leavitt, 481 F. Supp. 2d 437, 438 (D. Md. 2007) (denying motion to seal a memorandum opinion in part because “by the time [the movant] sought to have the court recall its opinion, a copy of the opinion could already be found on a popular legal research website, and not simply on the court’s website. Thus, the request came too late[.]”); Benedict v. Hankook Tire Co., 323 F. Supp. 3d 747, 766 (E.D. Va. 2018) (finding no compelling interest in protecting commercially sensitive information when the information has already been released publicly by the party that wishes to restrict access); United States v. Anderson, No. 1:11-cr-231, 2015 WL 11111065, *1 (E.D. Va. Mar. 16, 2015) (“In this age of electronic case filing, where a party delays in moving to seal a document that is filed on the court's public docket, removing the document from the public record is essentially an act of futility.”), aff'd, 607 F. App'x 314 (4th Cir. 2015).
The right to a fair trial is the most common interest cited in opposing a presumption of access. See United States v. Edwards, 785 F.2d 1293, 1294 (5th Cir. 1997). The Fifth Circuit has held that the presumption of openness can be overcome if there is an overriding interest based on court findings that closure is essential to preserve higher values, and so long as the closure order is narrowly tailored to serve that interest. United States v. Hitt, 473 F.3d 146, 154 (5th Cir. 2006).
One such interest is that of privacy. Doe v. Jackson Nat’l Life Ins. Co., 944 F. Supp. 488 (S.D. Miss. 1995), aff’d sub nom., Deramus v. Jackson Nat’l Life Ins. Co., 92 F.3d 274 (5th Cir. 1996). For example, the “inherent privateness” of religious beliefs can contribute to overcome the presumption of openness. Doe v. Stegall, 653 F.2d 180, 186 (5th Cir. 1981).
Privacy is also a concern during a juror’s individual voir dire—when the court asks questions of a juror outside the presence of other jurors. This process can be closed at the request of that juror on account of privacy concerns. When this occurs, a transcript must be made of the questioning, and the judge should make a determination as to whether to redact portions of the questioning before making the transcript public. In re Dallas Morning News Co., 916 F.2d 205, 206 (5th Cir. 1990). Also, protecting jurors from harassment and invasion of privacy is a legitimate concern, and thus narrowly tailored restrictions intended to prevent real threats to the administration of justice and subsequent prosecutions can be valid justifications for denial of access. United States v. Brown, 250 F.3d 907, 921 (5th Cir. 2001).
Along the same lines as privacy, the interests of a minor may overcome the presumption of access. For example, in sexual assault cases, protection of a minor’s privacy interests and psychological wellbeing can override the presumption of openness, and therefore closing the courtroom for such testimony will not necessarily violate the Constitution. Hitt, 473 F.3d at 154; see also United States v. Osborne, 68 F.3d 94, 98 (5th Cir. 1995).
Besides privacy, the protection of a confidential government informant may, in certain circumstances, overcome the presumption of openness. United States v. De Los Santos, 810 F.2d 1326, 1333 (5th Cir. 1987). Other confidential information includes information such as trade secrets or sensitive business information.
The public and media’s right to know the identity of parties to litigation, while powerful, is not as strong as its right of access to attend, observe, and report on trials. This is because the public right to scrutinize governmental functioning is less hindered by a grant of anonymity to a party than it is by closure of the trial itself. Stegall, 653 F.2d at 185. The Fifth Circuit does not apply a rigid test for party-anonymity, but some factors in cases permitting parties to proceed anonymously include (1) plaintiffs seeking anonymity were suing to challenge governmental activity; (2) prosecution of the suit compelled plaintiffs to disclose information of the utmost intimacy; and/or (3) plaintiffs were compelled to admit theirintention to engage in illegal conduct, thereby risking criminal prosecution. Id. The threat of hostile public reaction to a lawsuit, alone, will rarely warrant anonymity. But threats of violence, in conjunction with other factors (such as the youth of a party) can provide justification for anonymity. The decision will always require a balancing of considerations calling for privacy against the constitutionally-embedded presumption of openness. Id. at 186.
The Sixth Circuit has explained that the compelling interests that may permit a court to restrict right of access to courts and court records include fair trial rights of criminal defendants, privacy rights, especially of innocent third parties, trade secrets, national security, “‘information covered by a recognized privilege (such as the attorney-client privilege), and information required by statute to be maintained in confidence (such as the name of a minor victim of a sexual assault),’ is typically enough to overcome the presumption of access.” Shane Grp., 825 F.3d at 308 (quoting Baxter, 297 F.3d at 546); Brown & Williamson, 710 F.2d at 1179 (citations omitted).
Fail Trial Rights
A criminal defendant’s assertion of their Sixth Amendment rights to a fair trial is commonly cited as an interest that justifies closure of judicial proceedings or records, but the Sixth Circuit’s precedent carefully balances the right to a fair trial with the public’s First Amendment right of access.
The court has rejected arguments that “all publicity is prejudicial to a defendant’s right to a fair trial.” Application of Nat’l Broad. Co., 828 F.2d 340, 346 (6th Cir. 1987). The court has explained that “voir dire in some of the most widely covered criminal prosecutions has revealed the fact that many prospective jurors do not follow such news closely and that juries can be empaneled without inordinate difficulty.” Id. (citations omitted). One of the reasons: “this may come as a surprise to lawyers and judges, but it is simply a fact of life that matters which interest them may be less than fascinating to the public generally.” Id. (quoting United States v. Halderman, 559 F.2d 31, 62–63 n.37 (D.C. Cir. 1976) (en banc)).
The court further explained that when it comes to fair trial rights and the First Amendment right of access “‘these interests are not necessarily inconsistent. Plainly, the defendant has a right to a fair trial but, as we have repeatedly recognized, one of the important means of assuring a fair trial is that the process be open to neutral observers.’” Id. at 374 (quoting Press-Enterprise Co. v. Superior Court, 478 U.S. 1, 7 (1986)).
The court has also explained, in no uncertain terms, that
[it] is the individual defendant to whom the Sixth Amendment guarantees a fair trial. It is the public to whom the First Amendment guarantees reasonable access to criminal proceedings. And it is individuals, not the government, to whom First Amendment interests attach. To the extent that publicity is a disadvantage for the government, the government must tolerate it. The government is our servant, not our master.
U.S. v. Ford, 830 F.2d 596, 600 (6th Cir. 1987) (internal citations omitted).
The Sixth Circuit has recognized that national security is a compelling interest, but cautioned courts that even when national security is the basis for closure that “we do not believe speculation should form the basis for such a drastic restriction of the public’s First Amendment rights. Detroit Free Press v. Ashcroft, 303 F.3d 681, 709 (6th Cir. 2002) (citing Press-Enterprise Co v. Superior Court, 478 U.S. 1 (1986) (“Press-Enterprise II”). In that case, the government argued that “mosaic” intelligence gathering, which is when “‘bits and pieces of information may appear innocuous in isolation,’ but [could be] used by terrorist groups to help form a ‘bigger picture’ of the Government’s terrorism investigation,” threatens national security and justifies closure. Id. at 706 (citation omitted). The court explained that “[t]he Government could use its ‘mosaic intelligence’ argument as a justification to close any public hearing completely and categorically, including criminal proceedings. The government could operate in virtual secrecy in all matters dealing, even remotely, with ‘national security,’ resulting in a wholesale suspension of First Amendment rights.” Id. at 709-10. “This, we simply may not countenance. A government operating in the shadow of secrecy stands in complete opposition to the society envisioned by the Framers of our Constitution.” Id. at 710.
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 it is only “legitimate trade secrets,” not just some unspecified disadvantage that might arise from the release of prejudicial information about a business or litigant that is “a recognized exception to the right of public access to judicial records.” Brown & Williamson Tobacco Corp. v. FTC, 710 F.2d 1165, 1180 (6th Cir. 1983). In fact, “common sense tells us that the greater the motivation a corporation has to shield its operations, the greater the public’s need to know.” Id. Similarly, broad assertions of “competitively-sensitive financial and negotiating information,” which were not argued to be trade secrets have been found to be insufficient. Shane Grp. Inc. v. Blue Cross Blue Shield of Mich., 825 F.3d 299, 308 (6th Cir. 2016).
“‘[P]rivacy rights of participants and third parties’ are among those interests which, in appropriate cases, can limit the presumptive right of access to judicial records.” In re Knoxville News-Sentinel Co., 723 F.2d 470, 478 (6th Cir. 1983) (quoting Brown & Williamson, 710 F.2d at 1179); see also id. at 474 (relying upon the common law right of access that “trial courts have always been afforded the power to seal their records when interests of privacy outweigh the public’s right to know”). The privacy interest is particularly strong when it is the privacy rights of innocent third parties who were not involved in filing a lawsuit. Id. at 477–78; see also Shane Grp., 825 F.3d at 308 (“the privacy interests of innocent third parties should weigh heavily in the court’s balancing equation” (quoting U.S. v. Amodeo, 71 F.3d 1044, 1050 (2d Cir. 1995))). But privacy interests are at their weakest when asserted by plaintiffs. Rudd Equip. Co. v. John Deere Constr. & Forestry Co., 834 F.3d 589, 594 (6th Cir. 2016). Privacy has been found to be insufficient of an interest, even for minor children, based solely upon their shared last name with a plaintiff. Kiwewa v. Postmaster General, 2019 U.S. App. LEXIS 9050, at *4 (6th Cir. 2019) (unpublished).
The Sixth Circuit has rejected claims that reputational harm is sufficient to justify sealing court records. See Kiwewa v. Postmaster General, 2019 U.S. App. LEXIS 9050, at *3–4 (6th Cir. 2019) (unpublished) (“Harm to reputation is insufficient to overcome the strong presumption in favor of public access, especially, where, as here, the party who filed the suit alleges harm from the public availability of the record.”); Rudd Equip. Co. v. John Deere Constr. & Forestry Co., 834 F.3d 589, 594 (6th Cir. 2016) (rejecting assertion of reputational harm as basis for capacious sealing order, especially “where the entity alleging harm from publicizing the mere existence of this case is the plaintiff – the party that chose to file suit”); Brown & Williamson Tobacco Corp. v. FTC, 710 F.2d 1165, 1179 (6th Cir. 1983) (“Simply showing that the information would harm the company’s reputation is not sufficient to overcome the strong common law presumption in favor of public access to court proceedings and records.”).
Reliance on Prior Orders
The Sixth Circuit has clarified that reliance upon a previously entered order sealing court records is only a factor to be considered when deciding whether to unseal court records. Rudd Equip. Co. v. John Deere Constr. & Forestry Co., 834 F.3d 589, 595–96 (6th Cir. 2016). In In re Knoxville News-Sentinel Co., the court noted that when a party significantly relies on a court’s order sealing filed documents, “only ‘extraordinary circumstances’ or ‘compelling need’ warrant the reversal of a protective order.” 723 F.2d 470, 478 (6th Cir. 1983) (quoting FDIC v. Ernst & Ernst, 677 F.2d 230, 232 (2d Cir. 1982)). In 2016, however, the court, explained that “our comment was far from a clear commandment that a district court should jettison entirely the Brown & Williamson balancing test and shift the burden to the requesting part to show an exception need for unsealing court records.” Rudd Equip., 834 F.3d at 595. Instead, “a court should ‘take account’ of a party’s reliance, and any extraordinary circumstances or compelling need, in its application of the balancing test.” Id. (citation omitted).
“When there is a compelling interest in secrecy, as in the case of trade secrets, the identity of informers, and the privacy of children, portions and in extreme cases the entirety of a trial record can be sealed. . . . The interest in secrecy is weighed against the competing interests case by case.” Jessup v. Luther, 277 F.3d 926, 928 (7th Cir. 2002).
“[R]equests to seal proceedings in order to implement the parties' preference for seclusion . . . have been uniformly rejected.” Union Oil Co. of California v. Leavell, 220 F.3d 562, 568 (7th Cir. 2000). See, e.g., In re Specht, 622 F.3d 697, 701 (7th Cir. 2010) (indemnity agreement and other documents that were not claimed to be trade secrets would not be kept under seal where they were submitted to court in response to motion); Central Nat'l Bank v. United States Dep't of Treasury, 912 F.2d 897, 900 (7th Cir. 1990) (concern of bank challenging comptroller’s findings “that public knowledge of these things may impair its standing with its customers” would not support secrecy; “the bank's interest in keeping the bad news about its management secret is meager in relation to the claims of a free press for access to governmental proceedings”; court noted, in dicta, that case might be different if comptroller was asking for secrecy of disciplinary proceedings for fear of bank "runs"); In re Continental Illinois Sec. Litig., 732 F.2d 1302, 1314-15 (7th Cir. 1984) (even if special litigation committee report prepared for litigation was protected against disclosure at the time of preparation by attorney-client privilege and work product doctrine, those privileges were waived when the report was used in litigation; “there is a strong presumption that confidentiality must be surrendered”); Milam v. Dominick's Finer Foods, Inc., 567 F.3d 830, 831 (7th Cir. 2009) (refusing to seal affidavit submitted in support of motion to set aside dismissal for “excusable neglect” merely because it “would potentially cause embarrassment and affect [counsel's] personal and professional reputation by disclosing personal matters”; “[j]ust what the ‘neglect’ entailed, and why it was ‘excusable,’ are questions in which the public has a legitimate interest when they underlie a judicial decision”). Compare Methodist Hosps. v. Sullivan, 91 F.3d 1026, 1031 (7th Cir. 1996) (“Judicial proceedings are presumptively open, but particular information may be withheld. Personal income is among the categories that can be withheld. Disclosure of tax returns is highly restricted . . . , and we do not think that the disclosure of the same information becomes compulsory whenever a state decides to put it in a brief. Its inclusion in the state's memorandum is gratuitous”; ordering redaction of confidential material).
“In civil litigation only trade secrets, information covered by a recognized privilege (such as the attorney-client privilege), and information required by statute to be maintained in confidence (such as the name of a minor victim of a sexual assault), is entitled to be kept secret on appeal.” Baxter International, Inc. v. Abbott Laboratories, 297 F.3d 544, 546 (7th Cir. 2002) (denying joint motion to seal that simply asserted confidentiality agreement and “that these are commercial documents”) KM Enterps., Inc. v. Global Traffic Technologies, Inc., 725 F.3d 718, 734 (7th Cir. 2013) (granting request to seal appellate record documents or return them to district court “to protect sensitive, confidential pricing and customer information”; “narrow, specific requests [to seal appellate record] will be granted when based on articulated, reasonable concerns for confidentiality”).
Even where genuine trade secrets are at issue, the Seventh Circuit will not seal an entire opinion or brief because of trade secret information; it is only inclined to redact the information specifically identifying trade secrets themselves. See Pepsico Inc. v. Redmond, 46 F.3d 29 (7th Cir. 1995). “Litigation about trade secrets regularly is conducted in public; the district court seals only the secrets (and writes an opinion omitting secret details); no one would dream of saying that every dispute about trade secrets must be litigated in private. Even disputes about claims of national security are litigated in the open.” Union Oil, 220 F.3d at 567.
In evaluating claims for confidentiality in criminal proceedings, the Seventh Circuit has considered factors such as the “the privacy interests of the defendant, the defendant's family and the crime victim” and the government’s interest in the secrecy of information related to ongoing criminal investigations, or derived from grand jury proceedings. United States v. Corbitt, 879 F.2d 224, 229-30 (7th Cir. 1989) (criminal defendant “has a strong interest in maintaining the confidentiality of his or her presentence report” which often involves “a broad-ranging inquiry into a defendant's private life, not limited by traditional rules of evidence”). Compare United States v. Ladd, 218 F.3d 701, 704, 706 (7th Cir. 2000) (“The source of evidence admitted at trial and the circumstances surrounding its admittance are important components of the judicial proceedings and crucial to an assessment of the fairness and the integrity of the judicial proceedings”; because hearsay statements of unindicted coconspirators were admitted into evidence, “the public interest in disclosure [of their identities] outweighs the privacy interests of the coconspirators”).
In affirming denial of a motion to unseal a search warrant affidavit, the Court cited the “potential adverse consequences” of access, including that “the secrecy of grand jury proceedings would be violated,” and “disclosure of the affidavits might very likely impair the ongoing criminal investigation.” In re Eye Care Physicians of Am., 100 F.3d 514, 518-19 (7th Cir. 1996). However, in holding the First Amendment was violated by an Indiana statute that specified “no person” may disclose the existence of sealed indictment prior to arrest or bringing of defendant into court custody, and which authorized a contempt penalty for such disclosure, the Court observed that “infringement upon First Amendment freedoms may be justified, but only in exceptional cases: when the country is at war, when a sovereign seeks to protect the primary requirements of decency by prohibiting obscenity, and when the security of community life is threatened by incitements to acts of violence and the overthrow by force of an orderly government,” and found that “Indiana's asserted interest does not reach the level of these concerns.” Worrell Newspapers of lnd., Inc. v. Westhafer, 739 F.2d 1219, 1223-24 (7th Cir. 1984), aff’d, 469 U.S. 1200 (1985). The Court rejected the State’s argument that “the possible flight of indictees who have read about their indictments in the newspaper constitutes a ‘clear and present danger’ to the State's interest in apprehending criminals,” finding “the State's fears are remote and speculative” and unsupported by evidence. Id. at 1225. Compare Munster Med. Research Found., Inc., No. 2:08-CV-350-TLS-PRC, 2016 WL 4607869, at *4 (N.D. Ind. Sept. 6, 2016), objections overruled, 2017 WL 2570283 (N.D. Ind. June 14, 2017) (in deciding whether to unseal documents filed in a qui tam action, courts have found unsealing improper where it “would disclose confidential investigative techniques, reveal information that would jeopardize an ongoing investigation, or injure non-parties,” or other “sensitive information”; held, “[t]he investigation in this case is complete, and there is no indication that an ongoing investigation would be jeopardized if the Court lifts the seal on the documents still at issue,” but court would “consider injury to non-parties in making its decision, especially regarding patient information protected under HIPAA”).
Protection of undercover officers or witnesses
The Supreme Court of Alabama has recognized that the presumption of public access may be overridden by the government’s interest in protecting undercover officers. See Ex parte Birmingham News Co., 624 So. 2d 1117, 1125 (Ala. 1993).
Law enforcement investigations and sensitive records
Under Alabama law, the following types of records do not warrant disclosure: “recorded information received by public officers 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 v. Consol. Publ’g Co., 404 So. 2d 678, 681 (Ala. 1981). Alabama courts have also allowed any part of the court records to be sealed before trial, during trial, or after the verdict has been reached if the document constitutes a trade secret or other confidential commercial research or information. Holland v. Eads, 614 So. 2d 1012, 1016 (Ala. 1993). For example, in Holland v. Eads, the court upheld the trial court’s refusal to unseal the record because the case involved trade secrets and confidential information. Id. at 1015.
The Supreme Court held in Holland v. Eads that records that are matters of national security are not subject to public inspection if it is established by clear and convincing evidence that the interest of national security rises above the public interest in access. Holland v. Eads, 614 So. 2d 1012, 1016 (Ala. 1993) (citing Barron v. Fla. Freedom Newspapers, Inc., 531 So. 2d 113 (Fla. 1988)).
Sexual assault victims
In Ex parte Judd, the court adopted the Waller test for determining when a courtroom can be closed without violating a defendant’s constitutional right to a public trial in cases of rape or assault with intent to ravish. Ex parte Judd, 694 So. 2d 1294, 1295 (Ala. 1997). The test for courtroom closure, which applies to Sixth Amendment challenges by the defendant as well as First Amendment challenges by the media, requires:
(1) the party seeking to close the hearing must advance an overriding interest that is likely to be prejudiced; (2) the closure must be no broader than necessary to protect that interest; (3) the trial court must consider reasonable alternatives to closing the proceeding; and (4) it must make findings adequate to support the closure.
Id. at 386.
In P.M.M. v. State, the trial court did not engage in this careful balancing of interests and the appeals court found that complete closure to all spectators was broader than necessary and a structural defect that warranted a new trial. 762 So. 2d 384, 388 (Ala. Crim. App. 1999). In Ex parte Easterwood, a witness was called by the State to testify to a sexual relationship he had with the defendant but was reluctant to testify in open court. 980 So. 2d 367, 377 (Ala. 2007). The court held that the witness’s interest was not overriding under the Waller test to justify total closure of the courtroom. Id.
A trial court also has discretion under the provisions of section 12-21-202 of the Alabama Code to limit access to the courtroom if there is a showing of substantial need to permit a partial or complete closure of the courtroom where a trial involving victims of sex crimes is being held. Id.; see also, e.g., P.M.M., 762 So. 2d at 388 (trial court has discretion under section 12-21-202 to limit access); Reeves v. State, 88 So. 2d 561 (Ala. 1956) (court did not err in excluding general public from courtroom in rape trial); Ex parte Rudolph, 162 So. 2d 486 (Ala. 1964), cert. denied, 377 U.S. 919 (1964) (exclusion of general public from rape trial was not error). Section 12-21-202 provides:
In all prosecutions for rape and assault with intent to ravish, the court may, in its discretion, exclude from the courtroom all persons, except such as may be necessary in the conduct of the trial; and, in all other cases where the evidence is vulgar, obscene or relates to the improper acts of the sexes and tends to debauch the morals of the young, the presiding judge shall have the right, by and with the consent and agreement of the defendant, in his discretion and on his own motion, or on the motion of the plaintiffs or defendants or their attorneys, to hear and try the said case after clearing the courtroom of all or any portion of the audience whose presence is not necessary.
Ala. Code § 12-21-202 (2019).
While there is a presumption in favor of openness, it can be overcome by clear and convincing evidence that an individual’s privacy interest rises above the public interest in access. Holland v. Eads, 614 So. 2d 1012, 1016 (Ala. 1993). For example, Alabama courts have allowed a court document to be sealed that: (1) constitutes a trade secret or other confidential commercial research or information; (2) is a matter of national security; (3) promotes scandal or defamation; (4) pertains to wholly private family matters; (5) poses a serious threat of harassment, exploitation, physical intrusion, or other harm to the parties to the action; or (6) poses the potential for harm to third persons not parties to the litigation. Id. A court order that does not contain written findings why records are to be sealed should be overturned on appeal. Ex parte Gentry, 228 So. 3d 1016, 1025 (Ala. Civ. App. 2017).
Access is sometimes denied, delayed or otherwise restricted on the grounds that documents at issue have been docketed or filed as sealed documents. This is sometimes legitimate, but often the documents ought to be unsealed—whether because they were improperly sealed in the first place, because the justification for the initial sealing no longer warrants continued sealing, a document sealed at the discovery stage is used in connection with motion practice and should be public under Kamakana, Ctr. For Auto Safety, et al., the parties have stipulated to unsealing, or because a court has ordered unsealing for any other reason. Cf. 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).
One of the most common interests cited by parties in support of blocking media access to court proceedings is that coverage will prejudice the fair trial rights of the accused.
Courts have shown greater willingness to restrict (rather than prohibit) camera coverage in certain circumstances. For example, courts are more willing to limit coverage to protect minors or subjecting a witness to an invasion of privacy.
Prosecutors are increasingly moving to seal law enforcement records—public records such a body cam footage—claiming that such “evidence” may jeopardize fair trial rights or other “sensitive” investigations.
Police officer privacy: Under Cal. Pen. Code § 832.7(a), “[p]eace officer ... personnel records ... or information obtained from these records, are confidential and shall not be disclosed in any criminal or civil proceeding except by discovery pursuant to Sections 1043 and 1046 of the Evidence Code.” Under these statutes, a court must consent to discovery of peace officer personnel records, and those records retain their confidentiality, prohibiting the moving party from further disseminating or disclosing them. Alford v. Superior Court, 29 Cal. 4th 1033, 1042-1043, 63 P.3d 228, 130 Cal. Rptr. 2d 672 (2003). In an unpublished decision, the California court of appeal rejected a newspaper’s request for Pitchess information it believed had been introduced in the adjudication of the case, noting that under Alford, “even had Pitchess motion materials been released to the defendant, they remain confidential as to all others, including the prosecution, and could not be introduced as evidence. They could be used only to develop otherwise admissible evidence.” Copley Press, Inc. v. Superior Court, No. D041072, 2003 WL 21055100, *6, 35 Media L. Rptr. 1598 (Cal. Ct. App. 2003) (unpublished).
However, judicial records are not exempt merely because they might, at some point in the future, be involved in a disciplinary proceeding. City of Eureka v. Superior Court, 1 Cal. App. 5th 755, 764, 205 Cal. Rptr. 3d 134 (2016) (dashcam videos made in the course of an arrest are not confidential personnel records and may be released to the public even if the “police department might eventually use the videos to evaluate whether to initiate disciplinary proceedings against a peace officer”).
Contracts and bylaws: The parties’ agreement to seal a record or close a proceeding is insufficient to justify secrecy. See H.B. Fuller Co. v. Doe, 151 Cal. App. 4th 879, 891, 60 Cal. Rptr. 3d 501 (2007) (reversing sealing order based on parties’ stipulation). In McNair v. National Collegiate Athletic Ass’n, 234 Cal. App. 4th 25, 183 Cal. Rptr. 3d 490 (2015), the Court of Appeal rejected an argument that disclosure would prejudice the NCAA’s interest in maintaining a confidential investigatory process, holding that the organization’s bylaws, which promised confidentiality in investigations, were not binding on the court.
Trade secrets: Portions of a transcript or other judicial records may be sealed in order to protect confidential trade secrets, if the information is proprietary and contains comparatively little value to the general public. Richardson v. Mylan, Inc., 2011 WL 837148 (S.D. Cal. Mar. 9, 2011).
On the other hand, telemarketing scripts and sales pitches could not be considered trade secrets, because they were necessarily disclosed to customers. Thus, the court rejected an attempt to keep these documents under seal. In re Providian Credit Card Cases, 96 Cal. App. 4th 292, 296, 116 Cal. Rptr. 2d 833 (2002).
Privacy: Privacy interests in confidential financial information may be sufficient to justify redaction and even limited sealing of court documents. For example, privacy interests of third-party bank clients justified the sealing of some summary judgment exhibits in Overstock.com, Inc. v. Goldman Sachs Group, Inc., 231 Cal. App. 4th 471, 505, 180 Cal. Rptr. 3d 234 (2014) (holding that “confidential financial information in question in this case implicates significant privacy interests” because it was third-party bank client information). The court explained that this information was “of scant, if any, relevance to plaintiffs’ summary judgment opposition, and the public’s understanding of the adjudicative process is not enhanced by the disclosure of this confidential financial information.” Id. at 509-510. In contrast, the records of two bank clients (both already publicly identified with the defendant), which were relevant to the summary judgment decision, were not ordered sealed. Id. Similarly, in Universal City Studios, Inc. v. Superior Court, 110 Cal. App. 4th 1273, 1284, 2 Cal. Rptr. 3d 484 (2003), the Court ordered documents with redacted financial information to be unsealed, as the redactions removed any danger of prejudice to commercial interests. However, information such as bank or brokerage account numbers and social security numbers were allowed to be redacted. Id. at 1570. See also In re Marriage of Burkle, 135 Cal. App. 4th 1045, 1065-1066, 1070, 37 Cal. Rptr. 3d 805 (2006) (noting that press agreed that litigants have a privacy interest in their bank account and Social Security numbers, while holding that, in general, the First Amendment provides a right of access to court records in divorce proceedings); In re Marriage of Candiotti, 34 Cal. App. 4th 718, 722, 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).
In H.B. Fuller Co. v. Doe, 151 Cal. App. 4th 879, 892, 60 Cal. Rptr. 3d 501 (2007), the court rejected the conclusory argument that “some unspecified statements” in posted Internet messages were “private” or “confidential.”
Public figures’ privacy interests are reduced compared to the interests of private people. Thus, in Gilbert v. Nat’l Enquirer, Inc., 43 Cal. App. 4th 1135, 1147, 51 Cal. Rptr. 2d 91 (1996), the court vacated the entry of a preliminary injunction that would have prohibited the ex-husband of an actress from repeating allegedly defamatory statements about her relationships and substance abuse. The court relied in part on the fact that the actress previously had sought media attention, including attention related to her personal relationships, noting that public figures “must tolerate some criticism as the price of living in a free society.” Id.
Minor privacy interests: When a school district settled with a student who had been sexually assaulted, the press could unseal court records revealing the amount of the settlement, because release of the amount itself presented no danger to the student’s privacy or well-being and the “settlement amount is not a trade secret, within a privilege, or likely to place anyone in clear and present danger of attack.” Copley Press, Inc. v. Superior Court, 63 Cal. App. 4th 367, 376, 74 Cal. Rptr. 2d 69 (1998) (quotation marks omitted). However, trial courts may redact or seal particular documents to protect private information concerning an overriding privacy interest, including matters pertaining to the custody and visitation of minor children. In re Marriage of Nicholas, 186 Cal. App. 4th 1566, 1568-1569, 113 Cal. Rptr. 3d 629 (2010) (citing NBC Subsidiary (KNBC-TV), Inc. v. Superior Court, 20 Cal. 4th 1178, 980 P.2d 337, 86 Cal. Rptr. 2d 778 (1999); In re Marriage of Burkle, 135 Cal. App. 4th 1045, 37 Cal. Rptr. 3d 805 (2006)). See also In re Marriage of Candiotti, 34 Cal. App. 4th 718, 722, 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).
In general, the fact that a civil court “file contains extremely personal, private, and confidential matters is generally insufficient to constitute a privacy interest warranting the sealing of that entire file pursuant to C.R.C.P. 121, § 1-5. Anderson v. Home Ins. Co., 924 P.2d 1123, 1126 (Colo. App. 1996); see also In re Marriage of Purcell, 879 P.2d 468, 469 (Colo. App. 1994) (affirming the trial court’s denial of a motion to the record that the parties claimed contained “‘extremely personal, private, and confidential matters,’” including financial affidavits and a separation agreement). Likewise, “prospective injury to reputation, an inherent risk in almost every civil lawsuit, is generally insufficient to overcome the strong presumption in favor of public access to court records.” Id.; see also Doe v. Heitler, 26 P.3d 539, 544 (Colo. App. 2001) (citing Anderson).
A “heightened expectation of privacy or confidentiality in court records has been found to exist only in those limited instances in which an accusation of sexual assault has been made, or in which trade secrets, potentially defamatory material, or threats to national security may be implicated.” Anderson, 924 P.2d at 1126 (citing out-of-jurisdiction cases).
Colorado law and court access policies provide strong protections for the privacy of sexual assault victims and minors. See C.R.S. § 24-72-304(4)–(4.5) (prohibiting the release of the name and identifying information for child victims or victims of sexual assault); People v. Bryant, 94 P.3d 624 (Colo. 2004) (upholding a prior restraint preventing the media from publishing transcripts of a confidential evidentiary hearing in the Kobe Bryant rape case, which had been mistakenly circulated by the court reporter to the media);Chief Justice Directive 05-01, as amended, containing Colorado Judicial Department’s Public Access to Court Records policy (pdf) (Section 3.10, restricting access to court records containing a charge of sexual assault or involving a child victim, until victim identifying information has been redacted).
The Colorado Judicial Department’s Public Access to Court Records policy (“Public Access Policy”) (pdf) states that it seeks to “maximize accessibility to court records” while protecting “individual privacy rights and interests,” “proprietary business information,” and “individuals from the use of outdated or inaccurate information,” among other considerations. (Section 1.00(a).)
The Public Access Policy categorically excludes certain court records from the public, absent a court order, including: (1) audio or video recordings collected, received, and maintained by the court (excluding audio and video recordings of court proceedings); (2) birth certificates; (3) child abuse investigation reports, which the court finds contain personal or confidential information; (4) credit reports; (5) death certificates; (6) deposited wills; (7) domestic relations records, including financial statements, financial affidavits, financial supporting documents, memoranda of understanding, parenting plans, qualified domestic relations order, and separation agreements, (8) driver history reports from the Department of Revenue, (9) drug/alcohol treatment documents, evaluations, and reports; (10) evaluations and reports filed by a child and family investigor, a child’s legal representative, or relating to the allocation of parental responsibilities; (11) files, fields, and codes concerning the deliberative process; (12) genetic testing information; (13) HIV/AIDS testing information; (14) items that are illegal to possess; (15) juror questionnaires; (16) materials or exhibits that are dangerous or contraband; (17) medical and mental health documents prepared by a medical or mental health provider; (18) medical marijuana registry applications or cards; (19) motions to proceed in forma pauperis or applications for public defenders or for court-appointed counsel or a guardian ad litem; (20) National Crime Information Center or Colorado Crime Information Center reports; (21) paternity tests; (22) presentence reports; (23) probation chronological records (narratives); (24) probation records obtained through a release of information signed by the probationer; (25) psychological and intelligence test documents; and (26) scholastic achievement data on individuals. (SeeSection 4.60(d).)
In addition, the Public Access Policy prohibits access to court records in certain classes and types of cases, absent a court order, including: (1) adoption; (2) dependency and neglect; (3) judicial bypass; (4) judicial delinquency; (5) mental health; (6) paternity; (7) probate protected proceedings; (8) relinquishment; and (9) truancy.
A party seeking to proceed anonymously (under a pseudonym) “must show that he or she has a substantial privacy right that outweighs the ‘customary and constitutionally-embedded presumption of openness in judicial proceedings.’” Doe, 26 P.3d at 541. To determine whether such a showing has been made, courts consider: “[w]hether the justification asserted by the requesting party is merely to avoid the annoyance and criticism that may attend any litigation or is to preserve privacy in a matter of sensitive and highly personal nature; whether identification poses a risk of retaliatory physical or mental harm to the requesting party or to innocent non-parties; whether the action is against a governmental or a private party; whether the plaintiff would be compelled to admit his or her intention to engage in illegal conduct, thereby risking criminal prosecution; and the risk of unfairness to the opposing party from allowing an action against it to proceed anonymously.” Id.
In criminal cases, the most frequently cited interests are the fair trial rights of defendants, the identities of confidential informants, and certain policing techniques. None are treated as weightier or more special than any other reason advanced in support of courtroom closures, though, for First Amendment purposes. The need cited must be specific, i.e., the entity seeking closure must explain precisely how the cited interest is threatened by normal proceedings, and, must prove that closing the courtroom is the narrowest way to address the interest (as against, for example, obscuring a witness’s face, permitting them to testify behind a screen, etc.).
In civil cases, the most frequently cited interests are trade secrets, competitive financial details, and items of intimate privacy. As in criminal cases, the same general rule applies: the party seeking closure must demonstrate the problem with specificity and must prove that closure is narrowest means possible to cure the problem. Even when closure is warranted, the narrowness requirement necessitates the briefest possible closure, for example, during a limited portion of a single witness’s testimony.
The public right of access is not absolute. United States v. Hubbard, 650 F.2d 293, 315 (D.C. Cir. 1980) (listing “time-honored exceptions”) (quoting Nixon, 435 U.S. at 598); Tavoulareas v. Wash. Post, 724 F.2d 1010 (D.C. Cir. 1984) (recognizing corporation's constitutionally protected privacy interest in nondisclosure of its confidential commercial information); Schaffer v. Kissinger, 505 F.2d 389 (D.C. Cir. 1974) (national security secrets); United States v. Poindexter, 732 F. Supp. 165 (D.D.C. 1990) (national security); In re Sealed Documents, 15 Media L. Rep. 1983 (D.D.C. 1988) (compelling interest in successful completion of ongoing investigation into fraud in defense procurement process); Bigelow v. Dist. of Columbia, 122 F.R.D. 111 (D.D.C. 1988) (protecting confidential informant). But see In re NBC, 653 F.2d 609 (D.C. Cir. 1981) (granting media permission to make copies of video and audio tapes entered into evidence at trial, finding no risk of disclosure in prejudicing a hypothetical second trial); In re N.Y. Times Co., 585 F. Supp. 2d 83, 87 (D.D.C. 2008) (ordering disclosure of materials in part because they revealed information the public already knew, which was neither highly intimate nor personal, and because there was no possibility of prejudice because the investigation was complete).
Ongoing criminal investigations
The sealing of a plea agreement is not necessary to protect ongoing criminal investigations where the evidence showed that disclosure would only confirm what was already public knowledge. Wash. Post v. Robinson, 935 F.2d 282, 288 n. 7 (D.C. Cir. 1991); Bigelow v. District of Columbia, 122 F.R.D. 111 (D.D.C. 1988) (protecting portions of record that might identify confidential informant).
The D.C. Circuit has recognized that a corporation has a constitutionally protected privacy interest in nondisclosure of confidential commercial information submitted during pre-trial discovery but never used at trial. Tavoulareas v. Wash. Post, 724 F.2d 1010 (D.C. Cir. 1984), rev’d on other grounds, 737 F.2d 1170.
Courts have held that the need for access to discovery material must be balanced against privacy interests, recognizing that such discovery material is often not only “irrelevant but if publicly released could be damaging to [the] reputation and privacy” of opposing and third parties. Peskoff v. Faber, 230 F.R.D. 25, 33 (D.D.C. 2005).
Courts have also sometimes sealed court records due to privacy concerns. See Willingham v. Ashcroft, 355 F. Supp. 2d 390 (D.D.C. 2005) (sealing certain pleadings and exhibits that disclosed allegations of misconduct against persons who were not parties to civil lawsuit, but against whom plaintiff had compared herself); see also In re Reporters Comm. for Freedom of the Press, 773 F.2d 1325 (D.C. Cir. 1985) (finding that "the common-law right of inspection has bowed before the power of a court to insure that its records are not 'used to gratify private spite or promote public scandal' through the publication of 'the painful and sometimes disgusting details of a divorce case'”). But see In re N.Y. Times Co., 585 F. Supp. 2d 83, 87 n. 3 (D.D.C. 2008) (applying First Amendment right of access to certain sealed search warrant materials relating to the government’s investigation into the anthrax mailings of 2001, finding that "government's assertion that individual wants ‘to get on with his life’ does not serve as legally cognizable privacy interest").
The D.C. Circuit has held that civil litigants “enjoy no right of access to classified information.” Dhiab v. Trump, 852 F.3d 1087, 1092–93 (D.C. Cir. 2017) (“[T]here is no tradition of publicizing secret national security information involved in civil cases, or for that matter, in criminal cases.”). In Dhiab, the court denied intervening media organizations’ motion to unseal classified video recordings of a Guantanamo detainee that were used in the detainee’s civil habeas corpus proceeding.
A D.C. district court found no right of access to an entire deposition given in a criminal prosecution by former President Ronald Reagan in view of the strong likelihood that information damaging to national security would be revealed. United States v. Poindexter, 732 F. Supp. 165 (D.D.C. 1990). However, the court did permit a viewing of the videotape and transcript of the deposition edited to redact national security information. Id.
In Center for National Security Studies v. U.S. Department of Justice, 331 F.3d 918 (D.C. Cir. 2003), the D.C. Circuit found no First Amendment right, in a FOIA action, to receive the identities of INS detainees and material witnesses who were detained in the wake of the September 11 attacks. See also Flynt v. Rumsfeld, 355 F.3d 697 (D.C. Cir. 2004) (no presumption of right of access to battlefield in wartime); JB Pictures Inc. v. Dep’t of Defense, 86 F.3d 236, 240 (D.C. Cir. 1996) (applying Richmond Newspapers analysis and finding no right of access to military bases to cover the return of deceased military members).
District of Columbia
National security is a recurring theme in cases in which press access to court records or proceedings is denied. See, e.g., United States v. Poindexter, 732 F. Supp. 165 (D.D.C. 1990). In Poindexter, several news organizations applied for access to the videotaped deposition of former President Ronald Reagan. The court denied press access to the proceeding because, “[i]n short, national security concerns may be expected to permeate the questioning, and the unforeseeability of their specific emergence at any point means that an attempt to have press representatives present at some parts of the examination and not others, as the media applicants suggest, is not subject to reasonable implementation.” Id. at 168. The court, however, ruled that “immediate post-editing disclosure of the videotape will give assurances of fairness to both the public and the accused, as open criminal proceedings are properly designed to do, but it will do so without jeopardizing sensitive national security information.” Id. at 170; see also Dhiab v. Trump, 852 F.3d 1087 (D.C. Cir. 2017) (holding that there is no First Amendment right of access to classified material filed in court).
Trade secrets and sensitive business information can also be a factor in rebutting a presumption of access. See, e.g., United States v. Hubbard, 650 F.2d 293 (D.C. Cir. 1980) (“[A] proprietary interest in a document, in combination with the privacy interests implicated by the facts and circumstances of the seizure, may give rise to a protectable interest in preventing indiscriminate public access to the records of which the document has become a part.”); Mokhiber v. Davis, 537 A.2d 1100 (D.C. 1988) (affirming the denial of press access to pretrial records that included, inter alia, confidential information that included trade secrets).
Privacy, too, is frequently a prevailing concern. D.C. courts, when determining whether to grant press access to civil and criminal case records, balance the public’s interest in the documents and the defendant’s privacy interest. See United States v. Hubbard, 650 F.2d 293 (D.C. Cir. 1980) (staying the trial courts unsealing orders based on privacy concerns).
The most common interests cited by proponents of closure in criminal matters are fair trial rights and privacy interests. E.g., Post-Newsweek Stations, Fla. Inc. v. Doe, 612 So. 2d 549 (Fla. 1992) (involving asserted privacy interest of non-parties in criminal records); Florida Freedom Newspapers, Inc. v. McCrary, 520 So. 2d 32, 36 (Fla. 1988) (fair trial rights objection to access to criminal court records); Miami Herald Publ’g Co. v. Lewis, 426 So. 2d 1, 6 (Fla. 1982) (fair trial rights objection to access to criminal court proceeding).
The Florida Supreme Court in Barron also enunciated a list of potential interests that could justify closure of civil proceedings and records. Closure is only permitted when necessary: “(a) to comply with established public policy set forth in the constitution, statutes, rules, or case law; (b) to protect trade secrets; (c) to protect a compelling government interest [e.g., national security; confidential informants]; (d) to obtain evidence to properly determine legal issues in a case; (e) to avoid substantial injury to innocent third parties [e.g., to protect young witnesses from offensive testimony; to protect children in a divorce]; or (f) to avoid substantial injury to a party by disclosure of matter protected by a common law or privacy right not generally inherent in the specific type of civil proceeding sought to be closed.” Barron v. Florida Freedom Newspapers, Inc., 531 So. 2d 113, 118 (Fla. 1988) (involving an asserted privacy interest of a party in medical and financial records).
At least one Florida court has affirmed a closure order to protect the identity of an undercover police officer. Palm Beach Newspapers, Inc. v. Cook, 434 So. 2d 355, 359–60 (Fla. 4th DCA 1983). Closure of proceedings or records to protect confidential informants and other compelling government interests was also recognized as a reason that might justify closure in Barron, 531 So. 2d at 118.
Furthermore, Chapter 119 exempts information which discloses the identity of a confidential informant. Fla. Stat. § 119.071(2)(f); see also Fla. R. Jud. Admin. 2.420(f)(3) (establishing special restricted motion practice for court records involving plea agreements and substantial assistance agreements). The confidential informant exemption is not contingent upon the informant being active. Christy v. Palm Beach Cnty Sheriff’s Office, 698 So. 2d 1365, 1368 (Fla. 4th DCA 1997); Salcines v. Tampa Television, 454 So. 2d 639, 641 (Fla. 2d DCA 1984). Furthermore, redaction is appropriate to remove the identifying information, not withholding of the entire document. Ocala Star Banner Corp. v. McGhee, 643 So. 2d 1196 (Fla. 5th DCA 1994). Similarly, Florida law makes information identifying undercover personnel of a criminal justice agency exempt from public disclosure. Fla. Stat. § 119.071(4)(c).
Recently, the Florida Legislature amended Chapter 119 of the Florida Statutes to exempt from disclosure the identifying information of a witness to a murder for a period of two years after the date on which the witness observed the murder, with certain exceptions. Fla. Stat. § 119.071(2)(m); see Palm Beach Cty. Sheriff’s Office v. Sun-Sentinel Co., 226 So. 3d 969, 974 (Fla. 4th DCA 2017) (applying the new statute even if the witness were a victim).
Florida courts have also recognized that the protection of trade secrets might justify closure of a record or proceeding. E.g., Fla. R. Jud. Admin. 2.420(c)(9)(A)(ii); Barron v. Florida Freedom Newspapers, Inc., 531 So. 2d 113, 118 (Fla. 1988); State ex rel. Gore Newspaper Co. v. Tyson, 313 So. 2d 777, 782 (Fla. 4th DCA. 1975), overruled on other grounds by English v. McCrary, 348 So. 2d 293 (Fla. 1977).
Exemptions to Florida’s Public Records Act do not automatically apply to close court records. See In re Amendments to Florida Rule of Judicial Admin. 2.420-Sealing of Court Records and Dockets, 954 So. 2d 16, 17 (Fla. 2007) (per curiam). However, proponents of closure often cite such exemptions in their motions. The Florida Legislature has created a number of specific exemptions from Florida’s Public Records Act for trade secrets. See, e.g., Fla. Stat. § 1004.78(2) (trade secrets produced in technology research within community colleges); Fla. Stat. § 365.174 (proprietary confidential business information and trade secrets submitted by wireless 911 provider to specified agencies); Fla. Stat. § 570.544(8) (trade secrets contained in records of the Division of Consumer Services of the Department of Agriculture and Consumer Services); Fla. Stat. § 627.6699(8)(c) (trade secrets involving small employer health insurance carriers); see also Fla. Stat. § 288.9626 (creating an exemption for material relating to, among other things, potential trade secrets held by the Florida Opportunity Fund and the Institute for the Commercialization of Public Research).
The Florida Supreme Court recognized national security as a possible basis for closure of both court proceedings and records in Barron, 531 So. 2d at 118.
The Florida Supreme Court in Barron v. Florida Freedom Newspapers, Inc., expressly noted that closure of proceedings or records could be based upon protecting a young witness from “offensive” testimony. 531 So. 2d at 118. However, Barron likely does not afford victims of sexual assault privacy in civil cases in which they are plaintiffs. John Doe 1-Through John Doe-4 v. Museum of Sci. & History of Jacksonville, Inc., Nos. 92-32567-CI-CI, Div. 32, 1994 WL 741009 at *5–*7 (Fla. Cir. Ct. June 8, 1994). The reason is that “Barron rules out closure based upon privacy interests of parties in the subject matter of the case itself.” Id. at *5.
In the high profile case of Florida v. William Kennedy Smith, case no. 91-5482-CF-A-02 (Fla. Cir. Ct. 1991), the victim testified in public and the court allowed cameras in the courtroom, but required any such footage to include a blue dot over the victim’s face.
Privacy has also been asserted and recognized as a basis for closure on a number of occasions, especially where it is records which are at issue. E.g., Post-Newsweek Stations, Fla. Inc. v. Doe, 612 So. 2d 549 (Fla. 1993) (privacy interests of non-parties in criminal case recognized as possible basis for closure of records; however, no right of privacy exists to engage in criminal behavior); Barron v. Florida Freedom Newspapers, Inc., 531 So. 2d 113 (Fla. 1988) (privacy interest recognized for civil litigants). Florida Rule of Judicial Administration 2.420 and Florida Rule of Criminal Procedure 3.220 also recognize privacy as possible bases for closure of records. See also Forsberg v. Hous. Auth. of Miami Beach, 455 So. 2d 373 (Fla. 1984) (explaining that there is “no state constitutional right of privacy which would shield” public records of defendant housing authority); Art. I § 23, Fla. Const. (establishing a right of privacy under Florida Constitution, which is subordinate to public’s right of access to public records and meetings).
While there is a presumption of access, that presumption may in theory be overcome “by evidence constituting ‘clear and convincing proof’ that no means available other than closure of the hearing will serve to protect the right of the movant.” R.W. Page Corp. v. Lumpkin, 249 Ga. 576, 580 (1982).
Generally, the desires of the witnesses do not affect whether a proceeding will be closed. See Morris Communications LLC v. Griffin, 279 Ga. 735 (2005). However, the Court of Appeals of Georgia in Lowe v. State, 141 Ga. App. 433, 436–37 (1977), found no abuse of discretion of the trial court in its exclusion of spectators during the testimony of one witness who was in “fear of possible harm” because of testimony to be given.
State courts in Georgia have found that in child molestation cases closing the court to protect a young victim, while they testify, may be justified based on findings that closure is essential to preserve higher values and is narrowly tailored to serve that interest. See Goldstein v. State, 283 Ga. App. 1 (2006) (holding that although there is a strong presumption of openness, the trial court’s partial closure to protect the young victim was justified); Mullis v. State, 292 Ga. App. 218 (Ga. Ct. App. 2008) (finding that in light of the victim’s fragile emotional and psychological history and the fact that no objection was forthcoming, the trial court did not deprive the defendant of his Sixth Amendment right to a public trial when it cleared the courtroom during the victim’s testimony).
In enforcing the State’s commitment to open courtrooms and court records, the Supreme Court of Georgia has consistently emphasized that embarrassment and reputational harm are not sufficient interests to justify closure. See, e.g., Atlanta Journal v. Long, 258 Ga. 410, 413 (1988) (reversing a trial court order sealing case file after settlement of lawsuit claiming sexual abuse by Catholic Diocese of Savannah: “we hold that the privacy interests of appellees in the pre-judgment records of this civil case do not clearly outweigh the public interest in open access to those records.”). In reversing closure in In re Motion of the Atlanta Journal-Constitution, 271 Ga. 436 (1999), the Georgia Supreme Court held that despite the fact that those involved in judicial proceedings often “experience an invasion of privacy and resulting embarrassment, that fact alone does not permit trial courts to routinely seal court records.”
The court must distinguish the privacy interest in that particular case from the general desire to avoid embarrassment that would otherwise lead all parties to a lawsuit to ask for closed records. See, e.g., In re Motion of the Atlanta Journal-Constitution, 271 Ga. 436, 437 (1999) (requiring a motion, a hearing, and a trial court to make specific, on the record findings before sealing records); see also Atlanta Journal v. Long, 258 Ga. 410, 414 (1988) (“The court’s findings and conclusions do not explain how the embarrassment the appellees may suffer differs in degree or kind from that of parties in other civil suits.”).
Idaho courts, rules, and statutes do not specifically address undercover agents or witnesses, but Idaho statutes exempt from disclosure “investigatory records compiled for law enforcement purposes by a law enforcement agency” as long as disclosure would not “interfere with enforcement proceedings.” I.C. § 74-124(a). Additionally, the statute exempts from disclosure the “identity of a confidential source and, in the case of a record compiled by a criminal law enforcement agency in the course of a criminal investigation, confidential information furnished only by the confidential source.” I.C. § 74-124(d). Trade secrets are also exempt from disclosure. I.C. § 73-107(1). No Idaho cases, statutes, or rules address the closing of proceedings because of national security interests.
Idaho statutes “enable state and local agencies to respond to requests for public records without disclosing the location of a victim of domestic violence, sexual assault or stalking, to enable interagency cooperation with the secretary of state in providing address confidentiality for victims of domestic violence, sexual assault or stalking.” I.C. § 19-5701.
The Illinois Supreme Court has recognized that protection of sensitive financial information is sufficient to impound some court records. Skolnick v. Altheimer & Gray, 191 Ill. 2d 214, 235, 730 N.E.2d 4, 18, 246 Ill. Dec. 324, 338 (2000). However, the sufficiency of the interest to rebut openness also depends on the record at issue. Id. The court in Skolnickreversed an order sealing a pleading when protection of financial information was the justification, but the court said its analysis would be different if the sealed documents were discovery documents. Id. at 236, 730 N.E.2d at 19, 246 Ill. Dec. at 339. The distinction turned on the breadth of the documents and the tradition of openness. Id.
When the protection of business or financial information is the justification for sealing, the order still must be narrowly tailored to the documents containing that information. A.P. v. M.E.E., 354 Ill. App. 3d 989, 996, 821 N.E.2d 1238, 1247, 290 Ill. Dec. 664, 673 (Ill. App. Ct. 1st Dist. 2004). The Illinois trial courts also have the power to impound records in order to protect the parties’ trade secrets. Deere & Co. v. Finley, 103 Ill. App. 3d 774, 776, 431 N.E.2d 1201, 1203, 59 Ill. Dec. 444, 446 (Ill. App. Ct. 1st Dist. 1981).
The Illinois Supreme Court has recognized national security as the type of compelling interest that could overcome the presumption of openness to court proceedings. Skolnick v. Altheimer & Gray, 191 Ill. 2d at 236-37, 730 N.E.2d at 19, 246 Ill. Dec. at 339; A.P. v. M.E.E., 354 Ill. App. 3d 989, 821 N.E.2d 1238, 290 Ill. Dec. 664 (citing Skolnick for the proposition that sealing papers filed with the court requires a compelling interest like national security).
Illinois courts have sealed and redacted the names of victims of sexual abuse to protect their privacy, which is recognized as a compelling interest against disclosure. In re Minor, 205 Ill. App. 3d 480, 491, 563 N.E.2d 1069, 1076, 150 Ill. Dec. 942, 949 (Ill. App. Ct. 4th Dist. 1990) (affirming a prohibition on identifying the minor victims of sexual abuse where the reasoning for the order hinged on the type of abuse and the size of the community); see Dittrich v. Gibbs, No. 93 L 003, 2002 WL 32113762, at *3 (Ill. Cir. Ct. June 19, 2002); Bush v. Catholic Diocese of Peoria, 351 Ill. App. 3d 588, 589, 814 N.E.2d 135, 136, 286 Ill. Dec. 485, 486 (Ill. App. Ct. 3rd Dist. 2004). In Minor, the court affirmed an order prohibiting further dissemination of the minor victims’ names when the type of abuse and the size of the community were the justifications for the order. Minor, 205 Ill. App. 3d at 491, 563 N.E.2d at 1076, 150 Ill. Dec. at 949. The court said the state has a compelling interest in protecting these minors. Id. Even when an interested party has been allowed to view juvenile records involving sexual abuse, the minor victim’s name was redacted. In re K.D., 279 Ill. App. 3d. 1020, 1022, 666 N.E.2d 29, 31, 216 Ill. Dec. 861, 863 (Ill. App. Ct. 2nd Dist. 1996).
The court in Dittrich also sealed a list of thirty priests because there was no evidence that some of the priests were involved in misconduct. 2002 WL 32113762, at *5. The court reasoned that the reputations and careers of the innocent priests could be ruined and disclosure would not add to the public debate. Id. at *6.
Illinois courts have recognized various rights to privacy — including financial and medical — as rebutting the presumption of openness. Skolnick v. Altheimer & Gray, 191 Ill. 2d at 235, 730 N.E.2d at 18, 246 Ill. Dec. at 338. However, mere embarrassment or preference for privacy do not rise to the level of a compelling interest. In re Marriage of Johnson, 232 Ill. App. 3d 1068, 1075, 598 N.E.2d 406, 411, 174 Ill. Dec. 209, 214 (Ill. App. Ct. 4th Dist. 1992); Skolnick, 191 Ill. 2d at 235, 730 N.E.2d at 18, 246 Ill. Dec. at 338.
While Indiana Administrative Rule 9 promotes broad access to public records, it recognizes certain limits. For example, the purpose of the Rule includes protecting individual privacy interests and proprietary business information. Admin. Rule 9(A)(2); see also Rule 9(A) Commentary (“This rule attempts to balance competing interests and recognizes that unrestricted access to certain information in Court Records could result in an unwarranted invasion of personal privacy or unduly increase the risk of injury to individuals and businesses.”).
Open access to courts often protects judicial integrity, but the Indiana Court of Appeals recently stated that limiting the use of court recordings can also promote judicial integrity: “Witnesses and other actors in the current courtroom hearings proceed with the understanding that although their words are recorded, these recordings are used solely within the judicial realm, thereby protecting the effectiveness, reliability, and fairness of the judicial system. Permitting the audio of a proceeding to be broadcast to the public in general by way of any type of media, would have an intimidating impact, not only on the behavior of the witnesses and other actors—causing possible fear and reluctance to testify—but also on the openness and candidness of any trial testimony.” WPTA-TV v. State, 86 N.E.3d 442, 447 (Ind. Ct. App. 2017).
Arguments against open access are acute in juvenile cases. See Taylor v. State, 438 N.E.2d 275, 278–280 (Ind. 1982) (referring to the need to protect juveniles from the dissemination of information for minor offenses, including protecting juveniles from the stigma of their mistakes of their youth and undue embarrassment). But see The Movement to Open Juvenile Courts: Realizing the Significance of Public Discourse in First Amendment Analysis, 39 Ind. L. Rev. 659 (2006).
The Iowa Code includes trade secrets as a type of public record that can be kept confidential. Iowa Code § 22.7(3) (2018). In determining the meaning of the term “trade secrets,” which are exempt from disclosure, Iowa courts will use the definition contained in the Uniform Trade Secrets Act. See US West Commc’ns, Inc. v. Office of Consumer Advocate, 498 N.W.2d 711, 714 (Iowa 1993); see also Iowa Code § 550.2 (2018). “Business information may also fall within the definition of a trade secret, including such matters as maintenance of data on customer lists and needs, source of supplies, confidential costs, price data and figures.” Id. (citing 2 Roger M. Millgrim, Millgrim on Trade Secrets, § 9.03(3)(f) (1991)). In trade secret litigation, the court has the responsibility to “balance[e] the interests of the parties when determining the circumstances of disclosure.” Sioux Pharm, Inc. v. Eagle Labs., Inc., 865 N.W.2d 528, 536 (Iowa 2015). The district court has the power and discretion to determine disclosure and fashion protective orders as it deems necessary. Id. (citing Seattle Times Co. v. Rhinehart, 467 U.S. 20, 36 (1984)).
Under Kansas Supreme Court Rule 1001, a trial judge must prohibit photographing or audio recording of a participant in a court proceeding who requests the prohibition and who is “a victim or witness of a crime, a police informant, an undercover agent, or a relocated witness.” Kan. Sup. Ct. R. 1001(e)(7), Media Coverage of Judicial Proceedings, http://www.kscourts.org/rules/Media_Coverage/Rule%201001.pdf.
Kansas Supreme Court Rule 1001 requires that a trial judge prohibit photographing or audio recording of a court proceeding that involves trade secrets. Kan. Sup. Ct. R. 1001(e)(7), Media Coverage of Judicial Proceedings, http://www.kscourts.org/rules/Media_Coverage/Rule%201001.pdf.
In addition, a court “may, for good cause, issue an order to protect a party or person from annoyance, embarrassment, oppression or undue burden or expense” and require “that a trade secret or other confidential research, development or commercial information not be revealed or be revealed only in a specified way.” K.S.A. 60-226(c)(1)(G).
The Kansas Open Records Act (KORA), which is followed by the Kansas Judicial Branch, exempts certain security-related matters from disclosure. One exemption is for records
"of emergency or security information or procedures of a public agency, or plans, drawings, specifications or related information for any building or facility which is used for purposes requiring security measures in or around the building or facility or which is used for the generation or transmission of power, water, fuels or communications, if disclosure would jeopardize security of the public agency, building or facility."
Another exemption is for records that, if disclosed, “would pose a substantial likelihood” of jeopardizing energy, water, transportation and other systems, as well as private persons and property. K.S.A. 45-221(a)(45). The purpose of the exemption is to prevent disclosure of measures “that protect against criminal acts intended to intimidate or coerce the civilian population, influence government policy by intimidation or coercion or to affect the operation of government by disruption of public services, mass destruction, assassination or kidnapping.” K.S.A. 45-221(a)(45).
A Kansas rape shield law provides for exclusion of certain evidence about sex crime victims in trials. K.S.A. 21-3525. The Kansas Supreme Court has said the law was
"aimed at eliminating a common defense strategy of trying the complaining witness rather than the defendant. The result of the strategy was harassment and further humiliation of the victim as well as discouraging victims of rape from reporting the crimes to law enforcement authorities."
State v. Williams, 580 P.2d 1341, 1343 (Kan. 1978).
A Kansas Supreme Court rule requires identification of a sex crime victim only by initials, or given name and last initial in “all motions, briefs, opinions, and orders of the appellate court.” Kan. Sup. Ct. R. 7.043(c), Reference to Certain Persons, http://www.kscourts.org/rules/Appellate_Rules/Rule%207.043.pdf, which appears in Rules Adopted by the Supreme Court/General and Administrative, http://www.kscourts.org/rules/Appellate_Court.asp.
In addition, under Kansas Supreme Court Rule 1001, a trial judge must prohibit photographing or audio recording of a participant in a court proceeding who requests the prohibition and who is “a victim or witness of a crime.” Kan. Sup. Ct. R. 1001(e)(7), Media Coverage of Judicial Proceedings, http://www.kscourts.org/rules/Media_Coverage/Rule%201001.pdf.
A Kansas law provides that, after a hearing, a judge may deny access to court proceedings or records on the basis of an identified “privacy interest.” K.S.A. 60-2617(d). In addition, the Kansas Open Records Act authorizes withholding of information if it “would constitute a clearly unwarranted invasion of personal privacy.” K.S.A. 45-221(a)(30). However, in Wichita Eagle Beacon Co. v. Owens, 27 P.3d 881 (Kan. 2001), the Kansas Supreme Court said that trial judges need to weigh the public interest in openness against any asserted interest in closure of proceedings or records. The state supreme court said that trial judges should have the
"benefit of argument on the question of closure by an advocate of First Amendment and common-law interests. Such an argument would not necessarily be made by the State or the defense and might otherwise go entirely unnoticed. The news media may identify, or at least be the strongest proponent of an argument that there are . . . 'reasonable alternative means' to closure that would avoid the prejudicial effect on the defense or prosecution of the dissemination of information contained in the record or revealed during a proceeding."
Wichita Eagle Beacon Co. v. Owens, 27 P.3d 881, 883 (Kan. 2001).
A Kansas Supreme Court rule, 7.043, on record-keeping by appellate courts says in section (a) that it is designed to limit identification of persons “to avoid unnecessary trauma and unwarranted stigma from publicity inherent in an appellate proceeding and to maintain statutory requirements of confidentiality.” Section (b) requires that a child not be fully identified in cases brought under the codes for care of children or juveniles and in cases that involve adoption. Section (d) requires that a motion, brief, or opinion or order of the appellate court “refer to a juror or member of the venire by initials only, by juror number, or by given name and last initial.” Kan. Sup. Ct. R. 7.043, Reference to Certain Persons, http://www.kscourts.org/rules/Appellate_Rules/Rule%207.043.pdf, which appears in Rules Adopted by the Supreme Court/General and Administrative, http://www.kscourts.org/rules/Appellate_Court.asp.
Also, a Kansas Supreme Court Rule states that juror questionnaires are not a public record. See Kan. Sup. Ct. R. 167, Use of Juror Questionnaire, http://www.kscourts.org/rules/District_Rules/Rule%20167.pdf, which appears in Kansas Judicial Branch, Rules Adopted by the Supreme Court/Rules Relating to District Courts/Trials and Related Matters, http://www.kscourts.org/rules/District_Court.asp.
The most often cited interest opposing the presumption of access is the concern that public access may adversely affect a party’s right to a fair trial. See, e.g., Courier-Journal, Inc. v. McDonald-Burkman, 298 S.W.3d 846 (Ky. 2009); Lexington Herald-Leader Co. v. Meigs, 660 S.W.2d 658 (Ky. 1983). Reputational interests have been asserted, but they do not ordinarily outweigh the public right of access. See, e.g., Fiorella v. Paxton Media Grp., LLC, 424 S.W.3d 433 (Ky. Ct. App. 2014); but see Roman Catholic Diocese v. Noble, 92 S.W.3d 724 (Ky. 2002) (affirming a trial court order sealing a pleading that was stricken for its “irrelevant and scandalous allegations”).
The Public Records Act exempts from disclosure “records containing the identity of an undercover police officer or records which would tend to reveal the identity of an undercover police officer.” La. R.S. 44:3(A)(5).
Under certain circumstances, “proprietary or trade secret information” may be exempt from disclosure under the Public Records Act. See La. R.S. 44:3.2 (exempting certain “proprietary or trade secret information” from Public Records Act); see also La. R.S. 44:4 (same).
In State v. Fletcher, 537 So.2d 805 (La. App. 1989), the Court of Appeal held that, to justify closing a hearing involving sexual molestation of a minor, “the State must present evidence and demonstrate, and the court must find, that there is a ‘substantial probability’ that the minor victim of sexual conduct will suffer either or both physical and psychological detriment or damage from testifying in open court before the press and the public . . . [and] that reasonable alternatives to closure would not adequately protect against incremental injury to the minor victim.” Id. at 807.
In an aggravated rape case, the court cleared the courtroom of spectators, but allowed the news media to remain, when the victims, the young stepdaughters of the defendant, were testifying. The Court of Appeal concluded that this “did not violate the defendant’s constitutional right to a public trial since [the court] did not exclude the media and other essential parties.” State v. Loyden, 899 So.2d 166 (La. App. 2005).
In Copeland v. Copeland, 930 So.2d 940, 941 (La. 2006), the Louisiana Supreme Court stated: “Although there may be some justification for sealing certain sensitive evidence in a proceeding, the parties have the burden of making a specific showing that their privacy interests outweigh the public’s constitutional right of access to the record. The trial court, should it grant such relief, must ensure that its order is narrowly tailored to cause the least interference possible with the right of public access.” Id. at 1048.
Then, in Copeland v. Copeland, 966 So.2d 1040 (La. 2007), the Court allowed the sealing only of information that “would imperil the safety of the” children who were the subject of the custody battle. Only the name of the children’s school and the location of the family home, and not the “general information about custody and financial arrangements regarding the children” were allowed to remain sealed.
In Plaquemines Par. Comm’n Council v. Delta Dev. Co., 472 So.2d 560, 566 (La. 1985), the Court balanced “the rights of the press to publish and of the public to know” against the “privacy interests of the defendants” and concluded that those defendants who had not been public officials had greater privacy interests than those defendants who were or had been public officials.
In Maine, personal privacy in one form or another is sometimes cited as cause to close public access to court records or proceedings, but no Maine authority supports the notion that what goes on in court is “private.” In jury selection, the Law Court held that “a generalized concern that juror candor might be reduced” was insufficient to close voir dire to the public. MaineToday, 2013 ME 12 ¶ 7. The Law Court has rejected a trade secret assertion as sufficient to seal trial exhibits. See Bailey, 651 A.2d at 843–44.
No reported Maine authority addresses other interests often cited in other jurisdictions opposing the presumption of access (protection of confidential informants, national security or state secrets, or privacy of victims of crimes).
The Court of Special Appeals in Baltimore Sun v. Thanos identified seven, non-exhaustive interests to consider in opposing a presumption of access in criminal matters, including: “1. The need to encourage individuals, including the defendant, with relevant information to provide it to the Probation Office for ultimate transmittal to the sentencer with assurance of confidentiality;” “2. Considerations of the victim’s privacy and that of their families;” “3. Protection of the defendant’s privacy, including references to his medical history;” “4. Protection of confidential source information, cooperation by the defendant with ongoing criminal investigations, and grand jury material;” “5. Concern that the report includes irrelevant, unsupported statements which the defendant chose not to challenge;” “6. Protection of third persons from release of embarrassing personal information;” and “7. Avoidance of prejudice to the defendant prior to the imposition of sentence.” Baltimore Sun v. Thanos, 607 A.2d 565, 569–70 (Md. Ct. Spec. App. 1992); see also, e.g., Doe v. Shady Grove Adventist Hosp., 598 A.2d 507, 512 (Md. Ct. Spec. App. 1991) (discussing the constitutional right of privacy as a consideration in a civil invasion of privacy matter); Md. Rule 16-907 (listing Case Records to which the “custodian shall deny inspection”).
Employment Agreements. See Carr v. Entercom Boston, LLC, 22 Mass. L. Rptr. 628, 2007 WL 2110722 (Mass. Super. Ct. 2007) (denying impoundment request regarding an employment agreement, citing lack of good cause and practical concerns).
Trade secrets. Under the Uniform Rules on Impoundment, a court may allow a motion for impoundment upon a written finding of good cause (bypassing the hearing requirement) “when (1) the reason for the impoundment is to protect trade secrets or other confidential research, development, or business information, (2) the motion is by agreement or unopposed, (3) no party or other person has requested a hearing, and (4) the information does not involve an alleged or potential public hazard or risk to public safety.” Unif. R. Impound. P., Rule 7(e); see also id. (Committee Notes – “Trade Secret Exception” section).
Investigative secrecy. The need for investigative secrecy may constitute a sufficient basis for good cause to impound records. See, e.g., Unif. R. Impound. P., Rule 7 (Committee Notes, “Criminal Proceedings” section); New England Internet Cafe, LLC v. Clerk of Super. Ct., 966 N.E.2d 797, 805 (Mass. 2012) (noting investigative secrecy to be a legitimate interest in impoundment decisions).
According to the Minnesota Supreme Court, a party seeking to restrict public access to court files and records despite the constitutional presumption of openness must demonstrate that: (a) a compelling governmental interest exists, and (b) the restriction on access is narrowly tailored to meet that governmental interest. See Minneapolis Star & Tribune Co. v. Schumacher, 392 N.W.2d 197, 203 (Minn. 1986). Some of the more common interests cited by courts as “compelling” involve trade secrets, testimony from minors, and the privacy of jurors.
The Minnesota Supreme Court has recognized that in certain circumstances, it may be appropriate to exclude the public from the courtroom to protect trade secrets or other proprietary information. See generally Rahr Malting Co. v. County of Scott, 632 N.W.2d 572, 576–77 (Minn. 2001). In Rahr Malting Co., the court noted that even if a hearing is open to the public under state statutes, the court must weigh the policies in favor of openness against the interests of the litigants in preventing the public from obtaining access to confidential information. Id. at 576. The trial court must hold an in camera hearing to allow the parties to present all relevant evidence and to show the reasons why the information the parties are seeking to protect is a “trade secret” as defined in Minn. Stat. § 325C.01, subd. 5. Id.; see also Minn. Stat. § 325C.05 (the court must protect trade secrets by reasonable means, including protective orders, in camera hearings and by sealing the records).
Minnesota trial courts are also authorized to close courtrooms when minor victims testify regarding sex crimes committed against them. State v. McRae, 494 N.W.2d 252, 257 (Minn. 1992). In addition, a trial judge may exclude the public from the courtroom during a minor victim’s testimony if doing so is necessary to protect the minor or to ensure the fairness of the trial, provided that the court gives the prosecutor, the defendant, and the public the opportunity to object to closure. Minn. Stat. § 631.045; see also State v. Delacruz, No. A03-129, 2004 Minn. App. LEXIS 104, at *5–6 (Minn. Ct. App. Feb. 3, 2004). Before closing the courtroom, the judge must specify the reasons that justify closure. Minn. Stat. § 631.045; see also “Proceedings involving minors/Minor testimony in non-juvenile courts” above.
In addition, under the Minnesota Rules of Criminal Procedure, if it appears that jurors will be asked “sensitive questions that could be embarrassing,” the court may advise the jurors of their right to exclude the public from voir dire. Minn. R. Crim. P. 26.02, subd. 4(4)(a). If all or part of the voir dire is closed to the public, “a complete record of the [voir dire] proceedings shall be made.” Minn. R. Crim. P. 26.02, subd. 4(4)(g); see also “Jury and grand jury access/Access to voir dire” and “Jury and grand jury access/Juror identities, questionnaires and other records” above.
Even where a court finds a constitutional presumption of access to proceedings or records, that presumption can be rebutted “by an overriding interest based on findings that closure is essential to preserve higher values and is narrowly tailored to serve that interest.” Press-Enterprise Co. v. Superior Court (Press-Enterprise I), 464 U.S. 501, 510 (1984).
Trade secrets and confidential commercial information
Mississippi grants special protections to both trade secrets and confidential commercial or financial information.
The Mississippi Uniform Trade Secrets Act states that “a court shall preserve the secrecy of an alleged trade secret by reasonable means, which may include granting protective orders in connection with discovery proceedings, holding in-camera hearings, sealing the records of the action and ordering any person involved in the litigation not to disclose an alleged trade secret without prior court approval.” Miss. Code Ann. § 75-26-11.
Additionally, the state’s Public Records Act extends protections to “private third parties who may be in possession of information regarding their financial status and business practices that they would legitimately consider confidential, even though that information might not meet the strict test of being a trade secret as that term is defined in the Trade Secrets Act or previous judicial opinions.” See Caldwell & Gregory, Inc. v. Univ. of S. Miss., 716 So. 2d 1120, 1122 (Miss. 1998).
The Mississippi Constitution provides that in prosecutions for rape, adultery, fornication, sodomy or a crime against nature “the court may, in its discretion, exclude from the courtroom all persons except such as are necessary in the conduct of the trial.” Miss. Const. § 26 (1890).
In Tillman v. State, 947 So. 2d 993 (Miss. Ct. App. 2006), the Mississippi Court of Appeals cited the state constitution in affirming a trial court’s decision to exclude the public from the courtroom during the testimony of a witness who accused the defendant of sexual abuse. The court also cited the sensitive nature of the testimony and the emotional state of the witness. “The State correctly points out that various federal courts and the Mississippi Supreme Court have held that a court may exclude the public to the extent necessary to avoid embarrassment or emotional disturbance to a witness which might result from that witness's giving testimony in a particular case.” Id. at 995 (internal quotations omitted).
The Supreme Court repeatedly has recognized that, under some circumstances, privacy interests can overcome a presumption of access. In Press-Enterprise Co. v. Superior Court (Press-Enterprise I), 464 U.S. 501, 512 (1984), for example, the Court held that despite the presumption of access “a valid privacy right may rise to a level that part of the transcript should be sealed, or the name of a juror withheld, to protect the person from embarrassment.”
The Mississippi Supreme Court has stated that the right to a public trial “may be limited by exclusion of spectators to the extent necessary to avoid embarrassment or emotional disturbance to a witness.” Lee v. State, 529 So. 2d 181 (Miss. 1988).
Under Article II, Section 9 of the Montana Constitution, individual privacy is the only exception to the right to know. Accordingly, a court could close a proceeding if it determines a privacy interest is involved in a record or a portion of the proceedings and finds the demands of privacy clearly exceed the merits of disclosure. Trade secrets may also justify closure. See Great Falls Tribune v. Montana Pub. Serv. Commn, 82 P.3d 876, 885 (2003). However, mere economic disadvantage to a party does not justify closure. Great Falls Tribune Co. v. Day, 959 P.2d 508 (1998).
The Nebraska appellate courts have not directly addressed the various interests that might weigh against access in the constitutional context. However, the Nebraska Guidelines largely mirror the First Amendment factors established in Press Enterprise. Thus, § 6-204 of the Nebraska Guidelines states:
Upon entering an order of closure, the court shall articulate written findings as follows:
(A) that the evidence establishes an adequate basis to support a finding that there is a substantial likelihood that irreparable damage to the accused’s right to a fair trial will result from conducting the questioned proceedings in public,
(B) that a substantial likelihood exists that reasonable alternatives to closure will not adequately protect the accused’s right to a fair trial; and
(C) there is a substantial likelihood that closure will be effective in protecting against the perceived harm.
The burden of establishing such facts shall be upon the moving party.
Similarly, in connection with the common law right of access, the Nebraska Supreme Court has recognized that access decisions “are normally left to the ‘informed discretion’ of the courts. . . after ‘weighing the interests advanced by the parties in light of the public interest and the duty of the courts.’” State v. Cribbs, 237 Neb. 947, 951, 469 N.W.2d 108, 111 (1991).
Protection of undercover officers or witnesses
Although the court held that the First Amendment access right does not apply to affidavits offered in support of the issuance of a search warrant because such documents have not historically been open to the press and the public, the opinion in In re Search Warrant for 3628 V. Street, 262 Neb. 77, 628 N.W.2d 272 (2001) suggests that if such historical precedent had existed, the State’s interest in protecting the anonymity of a confidential informant would be weighed against the asserted right to access. See also Neb. Rev. Stat. § 27-510 (Reissue 2016) (providing an evidentiary privilege to government “to refuse to disclose the identity of a person who has furnished information relating to or assisting in an investigation of a possible violation of law to a law enforcement officer or member of a legislative committee or its staff conducting an investigation” under certain circumstances).
Trade secrets or sensitive business information
Neb. Rev. Stat. § 87-505 (Reissue 2014), a part of the Nebraska Trade Secrets Act, states:
In an action under the Trade Secrets Act, the court shall preserve the secrecy of an alleged trade secret by reasonable means, which may include, but not be limited to, granting protective orders in connection with discovery proceedings and ordering nondisclosure of the alleged trade secret by the parties’ attorneys, witnesses, or experts. The disclosure or publication of a trade secret in a court proceeding or as a result thereof shall not constitute an abandonment of the secret.
One of the exceptions to Nebraska’s Public Records Act allows a custodian to withhold from the public: “Trade secrets, academic and scientific research work which is in progress and unpublished, and other proprietary or commercial information which if released would give advantage to business competitors and serve no public purpose.”
Neb. Rev. Stat. § 84-712.05(3) (Reissue 2014).
National security and state secrets
Nebraska law does not allow for a court hearing to be closed in order to protect state secrets, but does provide an evidentiary privilege: “The government has a privilege to refuse to give evidence and to prevent any public officer from giving evidence as to communications made by or to such public officer in official confidence when the public interest would suffer by the disclosure.”
Neb. Rev. Stat. § 27-509(1) (Reissue 2008).
Nevada is guided by the principle that “open court proceedings assure that proceedings are conducted fairly and discourage perjury, misconduct by participants, and biased decision making.” Del Papa v. Steffen, 112 Nev. 369, 374, 915 P.2d 245, 249 (1996). There is a presumption favoring public access to judicial records and documents which is only overcome when the party requesting the sealing of a record or document under Nevada’s sealing and redacting rules demonstrates that “the public right of access is outweighed by a significant competing interest.” Jones v. Nev. Comm'n on Jud. Discipline, 130 Nev. Adv. Op. 11, 318 P.3d 1078, 1085 (2014); SRCR 1, et seq. (applying to civil cases, with certain exceptions); Stephens Media, LLC v. Eighth Judicial Dist. Court of State ex rel. Cty. of Clark, 125 Nev. 849, 860, 221 P.3d 1240, 1248 (2009) (holding that “the public and the press have the right to seek limited intervention in a criminal case to advance or argue constitutional claims concerning access to court proceedings.”).
Thus, before a trial court can exclude the public from trial proceedings, the following requirements must be met: (1) “the party seeking to close the hearing must advance an overriding interest that is likely to be prejudiced”; (2) “the closure must be no broader than necessary to protect [the overriding] interest”; (3) “the trial court must consider reasonable alternatives to closing the proceeding”; and (4) “the trial court must make findings adequate to support the closure.” Feazell v. State, 111 Nev. 1446, 1448, 906 P.2d 727, 729 (1995).
Privacy – see Petition of Keene Sentinel, 136 N.H. 121 (1992).
Prejudicial pretrial publicity– see Keene Publishing Corp. v. Cheshire County Superior Court, 119 N.H. 710 (1979); Keene Publishing Corp. v. Keene District Court, 117 N.H. 959 (1977).
Interference with pre-indictment or pre-arrest investigation of a crime– see Petition of State (Bowman Search Warrants), 146 N.H. 620 (2001).
Pursuant to Rule 23-107(A)(2) NMRA, the presiding district judge has sole and plenary discretion to exclude coverage of certain witnesses, including but not limited to the victims of sex crimes and their families, police informants, undercover agents, relocated witnesses and juveniles.
New Mexico provides persons the privilege of refusing to disclose and preventing others from disclosing a trade secret owned by them. Rule 11-508 NMRA. When determining whether or not to issue a protective order for alleged trade secrets, the trial court should consider the value of the information, the age of the information, and the extent of the public’s knowledge with regard to the information. Pincheira v. Allstate Ins. Co., 2008-NMSC-049, ¶ 52, 144 N.M. 601, 613, 190 P.3d 322, 334. Even when the trial court determines in its discretion that a privileged trade secret exists, the trial court may still order that it be disclosed. Id. (interpreting Rule 11-508 to allow the trial court in its discretion to order disclosure of a trade secret notwithstanding its determination that the holder has a bona fide trade secret).
The trial court’s exercise of this discretion is guided by three factors: (1) the interests of the holder of the privilege; (2) the interests of the parties to the litigation before the court; and (3) the furtherance of justice. Id. (“Thus, the trade secret privilege may, in appropriate circumstances, yield to other competing public policy values, such as requiring the courts to operate in the open and not behind a shroud of secrecy, and the right of litigants to full discovery and the subsequent full use of that discovery at trial.”). If a party resisting discovery establishes that the disputed documents are trade secrets subject to the trade secret privilege, mere relevance is inadequate to require disclosure. Id. Instead, the party requesting production must make a particularized showing that the information sought is relevant and necessary to the proof of a material element of at least one cause of action presented and that it is reasonable to conclude that the information sought is essential to a fair resolution of the lawsuit. Id.
New Mexico courts have not directly spoken to holding closed proceedings in the interest of national security. In New Mexico, sex crime trials are common examples of proper uses of discretion by the trial judge in barring the public from the courtroom. State v. Padilla, 1978-NMCA-066, ¶ 9, 91 N.M. 800, 802, 581 P.2d 1295, 1297. But see Does I through III v. Roman Catholic Church of Archdiocese of Santa Fe, Inc., 1996-NMCA-094, ¶ 1, 122 N.M. 307, 924 P.2d 273 (holding that the district court had authority to permit disclosure of the archbishop’s deposition testimony in a sexual abuse case to media parties when the archbishop and the archdiocese failed to show good cause to continue the protective order). Further, in any prosecution for criminal sexual penetration or criminal sexual contact of a minor, upon motion of the district attorney and after notice to the opposing counsel, the district court may, for good cause shown, order the taking of a videotaped deposition of any alleged victim under the age of sixteen years. NMSA 1978, § 30-9-17. The videotaped deposition shall be taken before the judge in chambers in the presence of the district attorney, the defendant and his attorneys. Id.
On several occasions, New Mexico has found that privacy interests overcome a presumption of access. Under the Abuse of Privacy Act, for example, to protect the privacy of innocent parties, recordings of court ordered wiretaps are not public records unless such recordings are played or utilized in open court in criminal or civil actions. State ex rel. Bingaman v. Brennan, 1982-NMSC-059, ¶ 10, 98 N.M. 109, 111, 645 P.2d 982, 984. Further, in the case of videotapes used to present testimony of children in cases involving charges of sexual abuse, the legislature has expressly provided that the tapes are subject to protective orders of the court to protect the victim's privacy. NMSA 1978, § 30-9-17(E).
N.C.G.S. 15A-1034(a) provides that "[t]he presiding judge may impose reasonable limitations on access to the courtroom when necessary to ensure the orderliness of courtroom proceedings or the safety of persons present." To search the North Carolina General Statutes, visit http://www.ncga.state.nc.us/gascripts/Statutes/Statutes.asp
Ohio courts apply the Waller four-prong test to determine if it is necessary to exclude public access to courtroom proceedings. State v. Drummond, 854 N.E.2d 1038, 1054 (Ohio 2006). The test requires that the “party seeking to close the hearing  advance an overriding interest that is likely to be prejudiced, the closure must be no broader than necessary to protect that interest, the trial court must consider reasonable alternatives to closing the proceeding, and it must make findings adequate to support the closure.” Id. at 1054 (citing Waller v. Georgia, 467 U.S. 39, 48 (1984)).
When considering the closure of courtroom proceedings, Ohio courts cite concerns about the defendant’s right to a fair trial. See State ex rel. Cincinnati Enquirer v. Bronson, 945 N.E.2d 551, 555–56 (Ohio Ct. App. 2010); see also State ex rel. Cincinnati Enquirer v. Dinkelacker, 761 N.E.2d 656 (Ohio Ct. App. 2001).
Limited portions of a civil trial may be sealed to prevent the release of confidential trade secrets. See, e.g. Milo v. Milo, 6 Media L. Rep. 2524 (Ohio Ct. C.P. 1981). The Ohio Court of Appeals has acknowledged the national security exemption from the First Amendment right of access in dicta. Dzina v. Dzina, No. 80029, 2002 WL 1265585, n.2 (Ohio Ct. App. May 30, 2002).
In Shipman v. State, 1982 OK CR 3, 639 P.2d 1248, the court said the trial judge did not abuse his discretion in refusing to close the courtroom to the public during testimony of defense witnesses, despite evidence the witnesses feared reprisals from the relatives of the alleged murder victims.
Courts in Oklahoma have permitted limited closure when victims of sexual offenses have testified. See, e.g., Reeves v. State, 1991 OK CR 101; Davis v. State, 1986 OK CR 148, 728 P.2d 846. In Reeves v. State, 1991 OK CR 101, the court approved the trial court’s limited closure of the proceedings during the testimony of minor victims of lewd molestation. In Davis v. State, 1986 OK CR 148, 728 P.2d 846, the court upheld the trial court’s decision to close the courtroom during the testimony of a sixteen–year–old victim of rape.
Okla. Stat. tit. 12, § 3226(C)(1)(g) identifies “a trade secret or other confidential research, development or commercial information” as the kind of information subject to a protective order in civil litigation.
Those seeking to oppose access under Article I, section 11 of the Oregon Constitution must make a “substantial showing of need.” State v. Bowers, 58 Or. App. 1, 4, 646 P.2d 1354 (1982). Because the protections under Article I, section 10 are intended to be absolute, it is unclear what types of arguments would be advanced to overcome the access provided therein. State v. Jackson, 178 Or. App. 233, 237, 36 P.3d 500 (2001) (“[C]ase law does not make it entirely clear whether the ‘absolute’ nature of the Article I, section 10, public right can, in fact, mandate that a criminal proceeding be open to the public in circumstances where an individual defendant's Article I, section 11, right might otherwise be circumscribed after a showing of substantial need by the state.”).
While Oregon Rule of Civil Procedure 36C allows a judge to issue protective orders to protect trade secrets, there is no published Oregon decision finding authority for closure of a court to protect trade secrets. UTCR 3.180 does provide for the denial of cameras and audio/video equipment where the proceedings concern trade secrets. UTCR 3.180(2)(c).
Oregon’s rape shield law has survived two challenges to its constitutionality under Article I, section 10 of the Oregon Constitution. See State ex rel Davey v. Frankel, 312 Or. 286, 823 P.2d 394 (1991) (holding that a law requiring review to be “in chambers” does not necessarily exclude the public); State v. Blake, 53 Or. App. 906 (1981) (holding that a law excluding the public from hearings regarding sexual history was constitutional), review allowed, 291 Or 893, 642 P.2d 309, appeal dismissed, 292 Or. 486, 640 P.2d 605 (dismissing appeal where the legislature enacted the law construed in Davey). Oregon’s current rape shield law, ORS 40.210, explicitly excludes the public from review of evidence of prior sexual history and has not been tested in court.
Privacy interests may overcome a presumption of access in Oregon. See State v. Blake, 53 Or. App. 906, 917, 633 P.2d 831, 838 (1981) (“Protection of the rights of privacy of the victim may even approach a concern of constitutional dimension.”), review allowed 291 Or. 893, 642 P.2d 309, appeal dismissed 292 Or. 486, 640 P.2d 605 (dismissing appeal where the legislature repealed the law in question).
Pennsylvania courts have described a variety of interests that might justify closure, depending on the circumstances, including:
- Protecting “the integrity of ongoing criminal investigations,” In re M.B., 819 A.2d 59, 62 (Pa. Super. 2003);
- Protecting trade secrets, see Zdrok v. Zdrok, 829 A.2d 697, 700 (Pa. Super. 2003); Air Prods. and Chems., Inc. v. Johnson, 442 A.2d 1114, 1128 (Pa. Super. 1982) (affirming order excluding defendant from seeing testimony by another party’s witness concerning alleged trade secrets or confidential information, finding that “‘such public disclosure will destroy the value of such trade secrets so sought to be protected’”);
- “Guard[ing] against risks to national security interests,” Zdrok, 829 A.2d at 700.
- Protecting “the privacy and reputations of innocent parties,” in certain circumstances, R.W. v. Hampe, 626 A.2d 1218, 1222 (Pa. Super. 1993) (“Divorce cases present one exception to the general rule of openness. The subject matter of divorce litigation serves, in many cases, ‘only to embarrass and humiliate’ the litigants.” (citation omitted)); Commonwealth v. Smith, 421 A.2d 693, 694 (Pa. Super. 1980) (“When a rape victim testifies to facts which could prove embarrassing or painful to her, a trial court has authority to exclude spectators from the trial temporarily.”) (citing Commonwealth v. Stevens, 352 A.2d 509 (Pa. Super. 1975)); but see Commonwealth v. Hayes, 414 A.2d 318, 324-327 (Pa. 1980) (rejecting defendant’s contention that holding a pretrial suppression hearing in open court jeopardized his right of privacy because such a privacy concern “does not warrant engrafting such a significant intrusion upon the basic right of access of the public in criminal proceedings”); Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 606-07 (1982) (invalidating per se rule mandating courtroom closure during all testimony of minor sex-crime victims); cf. Hallowich v. Range Res. Corp., 30 Pa. D. & C. 5th 91 (Washington Cty. C.C.P. Mar. 20, 2013) (holding that corporate entities, as opposed to individuals, do not possess the type of privacy interests that could justify closure); and
- Protecting against “threats of violence to witnesses,” Commonwealth v. Wright, 388 A.2d 1084, 1086 (Pa. Super. 1978).
As the Superior Court has explained, “[t]hese are not necessarily the only situations where public access can properly be denied. A bright line test has yet to be formulated. Meanwhile, the decision as to public access must rest in the sound discretion of the trial court.” Zdrok, 829 A.2d at 700 (citing Katz v. Katz,514 A.2d 1374 (Pa. Super. 1986) (citations omitted). Nevertheless, the court can only close proceedings when the high burden justifying sealing is met.
The Pennsylvania Supreme Court has adopted a policy governing access to case records, including criminal case records. See 204 Pa. Code § 213.81. The policy provides that “[a]ll case records shall be open to the public” with some significant exceptions for documents and information deemed confidential and thus not available to the public, such as social security numbers and driver’s license numbers. See “Other criminal court records issues” above.
The South Carolina Supreme Court has held that while a court may consider whether sealing judicial records would encourage settlement, this factor standing alone is insufficient to overcome the public’s right of access. Davis v. Jennings, 304 S.C. 502, 505, 405 S.E.2d 601, 603 (S.C. 1991).
Where a criminal defendant seeks to restrict the public’s First Amendment right of access on the basis of his or her Sixth Amendment right to a fair trial, the defendant must show that (1) there is a substantial probability that the defendant's right to a fair trial will be prejudiced by publicity; (2) there is a substantial probability that closure would prevent that prejudice; and (3) reasonable alternatives to closure cannot adequately protect the defendant's fair trial rights. In re S.C. Press Ass'n, 946 F.2d 1037, 1041 (4th Cir. 1991) (quoting In re State Record Co., Inc., 917 F.2d 124, 128 (4th Cir. 1990)); accord In re Charlotte Observer, 882 F.2d 850 (4th Cir. 1989) (citing Press-Enterprise Co. v. Superior Court, 478 U.S. 1, 14 (1986)).
See generally S.D. Codified Laws § 15-15A-1 (Purpose of rule of access to court records). See also the codified exceptions to record access listed at S.D. Codified Laws § 15-15A-7, which include, among other things, affidavits filed in support of search warrants, abortion records, guardianships and conservatorship records. Trade secrets are specifically addressed in S.D. Codified Laws § 15-15A-8.
Parties also frequently cite a defendant’s right to a fair trial to justify closure. See, e.g., Sioux Falls Argus Leader v. Miller, 610 NW2d 76, 81–82 (SD 2000).
Protection of witnesses and ongoing investigations: In the Court of Inquiry context, the Texas Court of Criminal Appeals has rejected closure premised upon protecting a witness’s safety. See Eagle Printing Co. v. Delaney, 671 S.W.2d 883 (Tex. Crim. App. 1984). The court declined to weigh competing interests against the public’s right of access to criminal proceedings, noting that there were competing Sixth Amendment and First Amendment interests in federal cases where courts engaged in a balancing analysis. See id. at 887. Because of Article 52.07 of the Texas Code of Criminal Procedure’s statutory mandate that “all proceedings shall be open to the public” for Court of Inquiry proceedings, however, the court determined that it was inappropriate to weigh concerns regarding a witness’s safety against the public’s right of access. See id. at 886–88.
Given that Article 1.24 of the Texas Code of Criminal Procedure likewise requires that all criminal proceedings be public, Texas courts may not follow federal precedent in criminal cases where courts weighed the government’s interest in protecting witnesses and the integrity of its own investigation against the public’s right to access criminal proceedings. See, e.g., United States v. Brown, 447 F. Supp. 2d 666, 671 (W.D. Tex. 2006) (denying public access to the transcript of a bill-of-exceptions hearing because doing so could harm the government’s ongoing investigation); United States v. Ketner, 566 F. Supp. 2d 568, 587–88 (W.D. Tex. 2008) (denying public access to the transcript of plea hearing minutes for the same reason). On the other hand, courts may consider factors such as witness safety in the civil context, as the Rule of Civil Procedure governing the sealing of records permits courts to weigh substantial interests against the presumption of openness. See Tex. R. Civ. P. 76a(1).
Trade secrets: The Texas Uniform Trade Secrets Act requires courts to protect trade secrets from disclosure by reasonable means. See In re M-I L.L.C., 505 S.W.3d 569, 578 (Tex. 2016) (citing Tex. Civ. Prac. & Rem. Code § 134A.006). The statute creates a presumption in favor of granting protective orders, which it suggests could include “provisions limiting access to confidential information to only the attorneys and their experts, holding in camera hearings, sealing the records of the action, and ordering any person involved in the litigation not to disclose an alleged trade secret without prior court approval.” Tex. Civ. Prac. & Rem. Code § 134A.006(a). Further, a Texas court of appeals has recognized that the disclosure of a trade secret during litigation could “destroy the very property right trade secret protection is designed to confer.” Oryon Techs., Inc. v. Marcus, 429 S.W.3d 762, 764 (Tex. App.—Dallas 2014, no. pet.). For that reason, the Dallas Court of Appeals determined that “a trial court may only order the public disclosure of trade secrets if such disclosure is ‘indispensable to truth and justice.’” Id. at 765 (citation omitted).
Sexual assault issues: Courts can exclude the public from portions of trials where it “appears reasonably necessary to prevent the embarrassment or emotional disturbance of such witness or to enable the witness to testify to facts material to the case.” See Price v. State, 496 S.W.2d 103, 107–08 (Tex. Crim. App. 1973) (quoting H.H. Henry, Annotation, Exclusion of Public During Criminal Trial, 48 A.L.R.2d 1436, 1450 (1956)); see also Grimmett v. State, 2 S.W. 631, 634, 22 Tex. Ct. App. 36, 41 (1886) (upholding the public’s exclusion from a courtroom where the evidence was deemed “indecent” and the crowd was disorderly). In Price, which dealt with the defendant’s right to a public trial rather than the public’s right to access the proceedings, the Court of Criminal Appeals found that it was proper for the trial court to exclude the public, excepting one member of the press and a law student who was assisting the defense counsel, from the victim’s testimony in a rape case where the court noted the psychological stress that the trial was imposing on the victim. See 496 S.W.2d 103 at 107–08.
Privacy: The general right of access is bounded by common-law privacy considerations, which limit the disclosure of information that “(1) contain[s] highly intimate or embarrassing facts, the publication of which would be highly objectionable to a reasonable person, and (2) [is] not . . . of ‘legitimate concern’ to the public.” City of Carrollton v. Paxton, No. 03-13-00838-CV, 2016 WL 1566400, at *3 (Tex. App.—Austin Apr. 4, 2016, no pet.) (noting that the common-law privacy limitations identified in Indus. Found. of the S. v. Tex. Indus. Accident Bd., 540 S.W.2d 668, 685 (Tex. 1976), apply to the public disclosure of information). What constitutes a “legitimate concern” is a fact-intensive inquiry, though criminal allegations generally qualify. See Cortez v. Johnson, No. 06–13–00120–CV, 2014 WL 1513306, at *6 (Tex. App.—Texarkana Apr. 16, 2016, no pet.) (citing Star–Telegram, Inc. v. Doe, 915 S.W.2d 471, 474–75 (Tex. 1995)). “While the general subject matter of a publication may be a matter of legitimate public concern, it does not necessarily follow that all information given in the account is newsworthy.” Star–Telegram, Inc. v. Doe, 915 S.W.2d at 474.
Thus, the privacy interests of a plaintiff in a defamation lawsuit did not clearly outweigh the general presumption of openness when the plaintiff attempted to have discovery evidence, which related to allegations of criminal activity, sealed after dropping the suit. See Cortez, 2014 WL 1513306, at *6. And a newspaper’s publication of details about a particular crime, which though not private or embarrassing individually but which collectively could enable readers to identify the crime’s victim, likewise is within scope of legitimate public concern, according to the Supreme Court of Texas. See Star–Telegram, Inc., 915 S.W.2d at 474. And the disclosure of identifying information about witnesses in a workplace racial discrimination investigation report did not qualify as “highly intimate or embarrassing,” and therefore was not considered confidential. See Abbott v. Dallas Area Rapid Transit, 410 S.W.3d 876, 881 (Tex. App.—Austin 2013, no pet.).
Fair trial rights
Access to criminal proceedings “may be closed only upon a showing that access raises a realistic likelihood of prejudice to the defendant’s right to a fair trial.” Soc’y of Prof’l Journalists v. Bullock, 743 P.2d 1166, 1178 (Utah 1987) (involving pretrial competency proceedings). The party seeking closure must show “that the matters in issue in the . . . proceeding, if disclosed, pose a substantial risk of endangering an accused’s fair trial rights.” Id. at 1179. The Utah Supreme Court has characterized this standard as a “significant” burden. Kearns-Tribune, 685 P.2d at 523.
Pretrial “publicity may lead jurors to form opinions about the defendant’s guilt, . . . but that does not necessarily disqualify the jurors.” State v. Lafferty, 749 P.2d 1239, 1250 (Utah 1988). Thus, “[t]o hold that the mere existence of any preconceived notion as to the guilt or innocence of an accused, without more, is sufficient to rebut the presumption of a prospective juror’s impartiality would be to establish an impossible standard,” so “[i]t is sufficient if the juror can lay aside his [or her] impression or opinion and render a verdict based on the evidence presented in court.” Id. at 1251; see also State v. Gardner, 789 P.2d 273, 277 (Utah 1989) (same). Despite the existence of many high profile criminal cases, Utah appellate courts “have never reversed a conviction on th[e] ground [of pre-trial publicity].” KUTV, Inc. v. Conder, 668 P.2d 513, 518 (Utah 1983); see also State v. Pierre, 572 P. 2d 1338, 1349 (Utah 1977) (“[T]his is not one of those exceptional cases where pretrial publicity exacerbated by State complicity encouraged the jurors to form such strong preconceived views of the defendant’s guilt as to be considered inherently prejudicial against him.”); State v. Andrews, 574 P.2d 709 (Utah 1977) (rejecting argument that publicity resulted in unfair trial); State v. Bishop, 753 P.2d 439, 458 (Utah 1988) (same).
The Utah Supreme Court acknowledged in State v. Allgier, 2011 UT 47, 258 P.3d 589 that “[t]here can be no doubt that pretrial . . . publicity that comes to the attention of prospective . . . jurors can deprive a criminal defendant of a fair trial,” but that the “right to a fair trial could be protected through the regular, time-honored processes for selecting jurors, even if the information in the [record] were added to the current media coverage.” Id. (internal quotations omitted) (first alteration and ellipses in original).
Utah courts employ a wide variety of less-restrictive alternatives to restricting access to protect a defendant’s constitutional rights, including but not limited to “use of an enlarged venire, thorough and searching voir dire, and a detailed jury questionnaire.” State v. Allgier, 2011 UT 47, ¶ 19, 258 P.3d 589 (internal quotations omitted); see also State v. James, 767 P. 2d 549, 557 (Utah 1989) (reversing order denying change of venue to another county due to extensive pre-trial publicity); State v. Harmon, 956 P.2d 262, 272-273 (Utah 1998) (“[O]ur judicial system greatly relies upon the jury’s integrity to uphold the jury oath, including its promise to follow all the judge’s instructions; our research indicates that virtually every jurisdiction, both state and federal, relies upon such instructions in curing errors during trial and reviewing errors on appeal.”).
The Utah Supreme Court and Court of Appeals have both noted that penetrating voir dire can effectively protect a criminal defendant’s fair trial right. See, e.g., Pierre, 572 P. 2d at 1350 (“[V]oir dire was neither simple nor perfunctory” but, rather, “a serious and comprehensive examination of the potential jurors to determine if any could remember or had contact, directly or indirectly, with the facts or publicity surrounding the case that would in any way suggest a likelihood of prejudice.”); Bishop, 753 P. 2d at 459 (effective voir dire eliminated alleged risk from prejudicial article published on day of jury selection); Lafferty, 749 P.2d at 1251 (“It is true that some of the jurors expressed an opinion that Lafferty was guilty; however, after the trial judge had questioned them carefully, each unequivocally stated that he or she would set aside preconceived notions, accord Lafferty a presumption of innocence, and decide the case on the evidence presented at trial.”); State v. Cayer, 814 P.2d 604, 610 (Utah Ct. App. 1991) (rejecting prejudice argument where exhaustive voir dire was conducted and defendant passed jury for cause); State v. Olsen, 869 P.2d 1004, 1008 (Utah Ct. App. 1994) (“The careful voir dire conducted by the judge, followed by Olsen’s passing the jury for cause, was sufficient to insure that Olsen received a fair trial.”); State v. Aase, 762 P. 2d 1113, 1116 (Utah 1988) (same).
Victims’ names are presumed public, but access may be restricted if release would constitute a clearly unwarranted invasion of personal privacy. See Utah Code § 63G-2-103(14)(a)(ii); § 63G-2-302(2)(d). Confidential information given to a sexual assault counselor by a victim may be disclosed only in limited circumstances. Id. § 77-38-204. If none of the statutory exceptions apply, “the privilege afforded the confidential communications between [the victim] and the sexual assault counselor at the Center is absolute.” State v. Gomez, 2002 UT 120, ¶ 15, 63 P.3d 72.
The Utah Supreme Court has reversed a judgment of conviction, for violation of the defendant’s constitutional right to a public trial, where the trial court had closed the courtroom during the minor rape victim’s testimony “on the mere verbal assertion of the prosecutor that ‘[the witness] is extremely uptight, very nervous, very frightened . . . [a]nd I am afraid that she is going to be intimidated by them all [her family and the defendant’s family] probably,’” without “examin[ing] the witness to attempt to determine her capacity to testify in public, nor . . . mak[ing] any findings regarding the accuracy of the prosecutor’s assertions.” State v. Crowley, 766 P.2d 1069, 1071 (Utah 1988) (first and third alterations in original); see also Kearns-Tribune Corp. v. Lewis, 685 P.2d 515, 517, 524 (Utah 1984) (rejecting passing reference by prosecutor “to an interest ‘in the privacy and the well being’” of a minor sex-abuse victim in holding unconstitutional the trial court’s order closing preliminary hearing during her testimony without making any written findings supported by evidence); United States v. Galloway, 937 F.2d 542, 546 (10th Cir. 1991) (“The [United States] Supreme Court has made clear that a simple blanket rule mandating closure in all sex offense cases involving young victims violates the Constitution.” (citing Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 607-08 (1982)).
Information regarding sex offender registration is generally public. See § 77-41-108. However, GRAMA classifies such information as private to the extent that the information is both required by certain registration provisions and expressly exempted from public disclosure. § 63G-2-302(1)(o).
“[R]ecords containing data on individuals the disclosure of which constitutes a clearly unwarranted invasion of personal privacy” are private records. Utah Code § 63G-2-302(2)(d); cf. Deseret News Publ’g Co. v. Salt Lake Cty., 2008 UT 26, ¶ 39, 182 P.2d 372 (“As public officials, Mr. Floros and Ms. Swensen cannot reasonably argue that release of the investigative report would generally constitute a significant invasion of their personal privacy. The accusations of misconduct contained in the investigative report primarily pertain to the performance of their official duties.”).
Law enforcement investigations
Records that “reasonably could be expected to interfere with investigations undertaken for enforcement, discipline, licensing, certification, or registration purposes” are protected from public disclosure. Utah Code § 63G-2-305(10)(a); see also Deseret News Publ’g, 2008 UT 26, ¶¶ 41-45 (investigation must be “a then ongoing investigation,” not a completed or future investigation, for this provision to apply); Carlisle v. Utah Cty. Sheriff’s Office, No. 16-49 (Utah State Records Committee Dec. 19, 2016) (concluding that “all records relating to an internal or administrative investigation of the named police officer related to allegations of witness tampering, retaliation against a witness, or obstruction of justice, are public records”). The same is true of enforcement, discipline, licensing, certification, or registration records that reasonably could be expected to disclose a confidential source’s identity, Utah Code § 63G-2-305(10)(d), or that reasonably could be expected to disclose confidential “investigative or audit techniques, procedures, policies, or orders . . . if disclosure would interfere with enforcement or audit efforts.” Id. § 63G-2-305(10(e). And the same is true of “records the disclosure of which would jeopardize the life or safety of an individual.” Id. § 63G-2-305(11). With few exceptions, expunged and sealed criminal records may not be divulged except under court order. Id. § 77-40-109.
“To rebut the presumption of openness, the party seeking closure must demonstrate ‘that closure is essential to preserve higher values and is narrowly tailored to serve that interest.’” Id. (citation omitted); see also Herald Ass’n v. Ellison, 138 Vt. 529, 534, 419 A.2d 323, 326 (Vt. 1980) (“any pretrial closure order imposed in this jurisdiction must be based on a clear necessity for the protection of the defendant’s fair trial rights and must be limited in scope by its justification”).
“The common law has long recognized that courts are possessed of an inherent authority to deny access to otherwise public court records when necessary to serve overriding public or private interests.” In re Sealed Documents, 172 Vt. 152, 160, 772 A.2d 518, 526 (Vt. 2001). Before exercising this authority, however, a party must overcome the presumption of public access by showing that “a substantial threat exists to the interests of effective law enforcement, or individual privacy and safety.” Id. at 161, 772 A.2d at 527 (citation omitted); see also In re Estate of Trombley, No. 737-10-11, 2011 Vt. Super. LEXIS 93, at *4 (Vt. Super. Ct. Nov. 7, 2011). “While exclusion is to be avoided under usual circumstances in light of the defendant’s right to a public trial, the court has discretion to weigh competing factors and tailor a limited exclusionary ruling to meet the exigencies of the moment.” State v. Rusin, 153 Vt. 36, 40-41, 568 A.2d 403, 406 (Vt. 1989).
In cases involving young victims of sexual assault, for example, the Vermont Supreme Court has recognized that “[t]he exclusion of certain spectators is to be judged in light of the public trial guarantee, by the usual standard of discretion afforded the trial court under V.R.E. 611(a)(3) which requires the “court [to] exercise reasonable control over the mode . . . of interrogating witnesses . . . so as to . . . protect witnesses from harassment or undue embarrassment.” Id. (citation omitted) (affirming trial court’s order excluding certain spectators who knew the child witness during her testimony). The Court cautioned, however, “that exclusionary orders should be a rare exception and undertaken only as a last resort.” Id.
A criminal defendant’s Sixth Amendment right to a fair trial can only overcome the presumption of openness if specific findings are made that: (1) there is a substantial probability that the defendant's right to a fair trial will be prejudiced by publicity and that closure would prevent that prejudice; and (2) reasonable alternatives to closure cannot adequately protect the defendant's fair trial rights. See Daily Press, Inc. v. Commonwealth, 285 Va. 447, 455, 739 S.E.2d 636, 641 (2013) (citing Press–Enterprise Co. v. Superior Court, 478 U.S. 1, 14 (1986)).
A criminal defendant’s right to an impartial jury is irrelevant where the defendant elects for a bench trial. See Daily Press, Inc. v. Commonwealth, 285 Va. 447, 455–56, 739 S.E.2d 636, 641 (2013).
The risk of damage to professional reputation, emotional damage, or financial harm, stated in the abstract, do not constitute sufficient reasons to seal judicial records. See Shenandoah Pub. House, Inc. v. Fanning, 235 Va. 253, 259, 368 S.E.2d 253, 256 (1988).
Inconvenience to the court is not a sufficiently compelling reason to deny public access to judicial proceedings. See In re Times-World Corp., 7 Va. App. 317, 327, 373 S.E.2d 474, 479 (Va. Ct. App. 1988), abrogated by Hertz v. Times-World Corp., 259 Va. 599, 528 S.E.2d 458 (2000).
The desire of the litigants for confidentiality is not sufficient reason to override the presumption of openness. Shenandoah Pub. House, Inc. v. Fanning, 235 Va. 253, 259, 368 S.E.2d 253, 256 (1988).
The fact that a record filed with the court would have been exempt from mandatory disclosure under Virginia’s Freedom of Information Act does not establish a compelling interest to deny public access to judicial records. See Tianti v. Rohrer, 91 Va. Cir. 111, 2015 WL 12588950, *4 (Fairfax Cir.Ct. Aug. 14, 2015) (“VFOIA, a statute designed to ensure the public certain access to government records, does not provide a compelling interest sufficient to rebut the presumption of openness attached to judicial records.”) (emphasis in original).
A party’s interest in protecting confidential and competitively sensitive information may suffice to overcome the public’s right of access to trial exhibits. See Bhagat v. Diamond Info. Sys., LLC, 84 Va. Cir. 233, 2012 WL 7827846, *2 (Loudoun Cir. Ct. Jan. 23, 2012) (granting motion to seal trial exhibits; discussing company’s interest in preventing disclosure but not addressing public’s right of access).
The Washington Supreme Court has stated that the “defendant’s right to a fair and speedy trial, the potential jurors’ right to privacy, the judge’s obligation to provide a safe and orderly courtroom, and many other considerations may justify a courtroom closure.” State v. Slert, 181 Wn.2d 598, 604, 334 P.3d 1088, 1091 (2014) (plurality opinion) (holding in-chambers examination of jury questionnaires, leading to dismissal of potential jurors, did not violate defendant’s right to public trial). But such claims rarely result in closure: a generalized concern for the defendant’s fair trial rights, without articulation of the particular unfairness or prejudice that would result, is insufficient to justify a closure. See Seattle Times Co. v. Serko, 170 Wn.2d 581, 594–96, 243 P.3d 919 (2010).
Resolution of “mundane issues,” such as those resolved at sidebar conferences, does not rise to the level of public interest necessary to implicate the public’s right to access court proceedings. See State v. Smith, 181 Wn.2d 508, 515, 334 P.3d 1049, 1053 (2014).
The West Virginia Freedom of Information Act provides categories of information specifically exempt from disclosure. W.Va. Code § 29B-1-4. The FOIA exemptions are instructive on the types of records that may be sealed during court proceedings (http://code.wvlegislature.gov/29B-1-4/).
See Wis. Stat. § 134.90(b) (Uniform trade secrets act):
PRESERVATION OF SECRECY. In an action under this section, a court shall preserve the secrecy of an alleged trade secret by reasonable means, which may include granting a protective order in a discovery proceeding, holding an in-camera hearing, sealing the record of the action and ordering any person involved in the action not to disclose an alleged trade secret without prior court approval.
See also Wis. Stat. § 227.46(7)(a) (trade secrets in administrative hearings): “Notwithstanding any other provision of law, the hearing examiner presiding at a hearing may order such protective measures as are necessary to protect the trade secrets of parties to the hearing.”