A. Interests often cited in opposing a presumption of access
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).
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.
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 Vermont Rules for Public Access to Court Records govern the rights of access by the public to judicial records. See Vt. Pub. Acc. Ct. Rec. Rule 1. Subject to certain enumerated exceptions, “all case and administrative records of the Judicial Branch shall be open to any member of the public for inspection or to obtain copies.” Vt. Pub. Acc. Ct. Rec. Rule 4. Similarly, Vermont court proceedings are presumptively open to the public, “closure being the exception rather than the rule.” State v. Tallman, 148 Vt. 465, 474, 537 A.2d 422, 427-28 (Vt. 1987).
“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).