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).
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. United States v. Hitt, 473 F.3d 146, 154 (5th Cir. 2006); 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. Doe v. Stegall, 653 F.2d 180, 185 (5th Cir. 1981). 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 their intention to engage in illegal conduct, thereby risking criminal prosecution. Doe v. Stegall, 653 F.2d 180, 185 (5th Cir. 1981). 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.
“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) (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.
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.
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.
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.
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).
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).
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).
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.
“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).
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.