A. The roots of access rights
In 1981, the Kansas Supreme Court adopted a presumption that court records and proceedings were open. Ever since, the court’s decision, in Kansas City Star Co. v. Fossey, 630 P.2d 1176 (Kan. 1981), has been central to media claims for access to the state’s courts.
Fossey arose when a juvenile was charged with murdering his stepbrother. He was held for trial as an adult. At one point early in the proceedings, the judge, Leighton A. Fossey, scheduled a hearing on whether the defendant had involuntarily made self-incriminating statements to the police. Judge Fossey indicated in open court that he would hold a hearing on whether to suppress the defendant’s statements. He also indicated that he would close the suppression hearing to the press and the public. In response, three reporters in the courtroom stood, and one read a statement that had been prepared by her employer, the Kansas City Times. The statement called for a hearing on whether or not the judge should exclude the press and the public.
Nevertheless, Judge Fossey expressed concern about “considerable publicity concerning the case” that could prejudice the jury against the defendant. Fossey, 630 P.2d at 1178. He closed the courtroom and held the suppression hearing. Afterward, he ruled that the defendant’s self-incriminating statements would be admissible at the trial. He also decided to permit reporters covering the trial to read the defendant’s statements, although only after they were introduced into evidence.
In response, the Kansas City Star Company, publisher of the Kansas City Times, filed a motion to intervene. The Star sought to reverse Judge Fossey’s closure order and obtain a transcript of the suppression hearing. Although the judge declined to vacate his order, he agreed to the eventual release of a copy of the transcript of the suppression hearing. At the end of the trial, the defendant was found guilty. Meanwhile, the Star appealed from Judge Fossey’s closure of the suppression hearing by petitioning the Kansas Supreme Court for a writ of mandamus.
In Fossey, the Kansas Supreme Court rejected the newspaper’s mandamus petition, upholding the trial judge’s closure of the suppression hearing. The state supreme court viewed the suppression hearing as a pre-trial proceeding, even though the jury already had been impaneled. As a result, the supreme court declined to be guided by the holding in Richmond Newspapers, Inc., v. Virginia, 448 U.S. 555 (1980), that criminal trials are presumed to be open. Instead, the supreme court relied on Gannett Co. v. DePasquale, 443 U.S. 368 (1979), which found no constitutional right for the public to attend pre-trial proceedings.
Nonetheless, in Fossey, the Kansas Supreme Court held that, in the future, a presumption of openness would apply to criminal court proceedings and records. The state supreme court established the presumption with reference to standards that the American Bar Association had approved in 1978. The standards generally were in accord with Richmond Newspapers. The policy underlying the standards “is a strong presumption in favor of open judicial proceedings and free access to records in a criminal case.” Fossey, 630 P.2d at 1182.
Under Fossey, closure of court proceedings is allowed “‘only if (i) the dissemination of information from the pretrial proceeding and its record would create a clear and present danger to the fairness of the trial, and (ii) the prejudicial effect of such information on trial fairness cannot be avoided by any reasonable alternative means.”’ Fossey, 630 P.2d at 1182 (quoting Fair Trial and Free Press: Standard 8-3.2 of the ABA’s Standing Committee on Association Standards for Criminal Justice (August, 1978)).
The Kansas Supreme Court said:
There is almost universal agreement among the courts and writers who have considered the issue that access to court proceedings should be limited only in exceptional circumstances. It has been said that the reason for requiring all court proceedings to be open, except where extraordinary reasons for closure are present, . . . is to enhance the public trust and confidence in the judicial process and to insulate the process against attempts to use the courts as tools for persecution.
Fossey, 630 P.2d at 1181.
The public interest in access to courts, according to the supreme court, “‘is at least as strong as the first amendment policy against prior restraints.”’ Fossey, 630 P.2d at 1183 (quoting the ABA Standards).
Before the Kansas Supreme Court embraced a presumption of openness in Fossey, it acknowledged the common law right of access to records, although the right was qualified. In Stephens v. Van Arsdale, 608 P.2d 972 (Kan. 1980), the state supreme court said that a judge had discretion to deny access to court records if they are to be used “‘to gratify private spite or promote public scandal’ through the publication of the details of a divorce case or for the publication of libelous statements for press consumption, or as sources of business information that might harm a litigant’s competitive standing.” Van Arsdale, 608 P.2d at 982 (quoting Nixon v. Warner Commc’ns, Inc., 435 U.S. 589, 598 (1978)).
The U.S. Supreme Court has observed that, in many jurisdictions, the common law right of access to court records “has been recognized or expanded by statute.” Nixon., 435 U.S. at 598 n.7. To the extent that the Kansas Legislature has codified common law access, it has done so principally through the Kansas Open Records Act (KORA). Kan. Stat. Ann. (K.S.A.) 45-215 et seq. In KORA, the Legislature declared that openness of public agencies’ records is presumed. K.S.A. 45-216. The presumption of openness controls unless a requested record falls within an exemption specified in KORA. In general, if a record is specifically exempt, public agencies “shall not be required to disclose” it. K.S.A. 45-221(a).
The Kansas Supreme Court exercised authority over records in the state’s courts by issuing an order titled Administration of the Kansas Open Records Act. See Kan. Order No. 156, http://www.kscourts.org/Kansas-courts/supreme-court/administrative-orders/Admin-order-156.pdf. The state supreme court also prescribed a procedure for requesting court records. See Request Court Records, http://www.kscourts.org/rules-procedures-forms/open-records-procedures/default.asp. The supreme court’s statement of procedure includes notice that, by statute, some kinds of records are not subject to disclosure. The statement also notes that records may be closed by rule of the supreme court. KORA acknowledges the supreme court’s authority to close records in K.S.A. 45-221(a)(1)). The supreme court gives notice that open court records include “case files and transcripts” and “[f]inal civil and criminal judgments.” Also noted is the fact that some records are not accessible “pursuant to judicial order or caselaw” and that KORA “recognizes that some records contain information that is private in nature.”
Records that are private include records of judges themselves, as opposed to records associated with court proceedings. KORA exempts “any municipal judge, judge of the district court, judge of the court of appeals or justice of the supreme court” from the requirement that public agencies make their records available. K.S.A. 45-217(f)(2)(B). The exemption, for example, applies to long-distance telephone records of judges, even if the records are on file with a public agency. See Op. Kan. Att’y Gen. No. 96-77 (Sept. 12, 1996). Judges, however, are required to make an annual public disclosure of certain personal financial matters. See Rules Related to Judicial Conduct / Kansas Canons of Judicial Conduct / Canon 3, Rule 3.15, Reporting Requirements, http://www.kscourts.org/rules/Judicial_Conduct/Canon%203.pdf. In (A)(1), the rule requires disclosure of “compensation received for extrajudicial activities as permitted . . . and compensation received by the judge’s spouse or domestic partner.”
The roots of access rights in Maine are, generally, the First Amendment and the common law—and, in a few instances, court rules and statutes. The Supreme Judicial Court observed that the U.S. Supreme Court has recognized that “members of the public have a First Amendment right to access certain criminal proceedings.” In re. Bailey M., 2002 ME 12, ¶ 11, 788 A.2d 590.
In Maine the right to free speech and to freedom of the press under the Maine Constitution are generally considered co-extensive with rights under parallel clauses contained in the U.S. constitution. See Me. Const. art. I, § 4 (“Every citizen may freely speak, write and publish his sentiments on any subject, being responsible for the abuse of this liberty; no laws shall be passed regulating or restraining the freedom of the press; . . . .”); State v. Frisbee, 2016 ME 83, ¶ 14, 140 A.3d 1230 (Me. 2016) (“the rights . . . conferred by the Maine Constitution and the United States Constitution are generally coextensive”); Cent. Me. Power Co. v. Pub. Util. Comm’n, 734 A.2d 1120, 1999 ME 119, ¶ 8 (“With respect to free speech rights, ‘the Maine Constitution is no less restrictive than the Federal Constitution.’”); In re Letellier, 578 A.2d 722, 727 (Me. 1990) (“the Maine Constitution does not make its protection of freedom of the press any more or less absolute or any more or less extensive than the constitutional protection accorded that freedom under the First Amendment”); and Gelder v. Cote, 2007 Me. Super. LEXIS 154, *7 (Me. Super. Ct. July 16, 2007) (“In the absence of any authority supporting a different conclusion, this Court holds that the free speech rights protected by the Maine Constitution are ‘coextensive’ with those under the United States Constitution.”).
The Supreme Judicial Court has not foreclosed the possibility that state constitutional or common law rights to access to the courts may differ from comparable rights under the federal constitution. See City of Portland v. Jacobsky, 1984 Me. Super. LEXIS 24 *19 (Me. Super. Ct. Feb. 7, 1984) (“The Law Court has explicitly refused to be as bound to Federal bill of rights precedent as the City suggests, even in cases where it has limited its consideration to the First Amendment or other Amendments in the Bill of Rights.”).
The Maine Rules of Civil Procedure provide for public access to civil trial proceedings. The Rules provide, “All trials upon the merits shall be conducted in open court and so far as convenient in a regular court room.” M. R. Civ. P. 77(b). However, “[a]ll other acts or proceedings may be done or conducted by a justice or judge in chambers, without the attendance of the clerk or other court officials and at any place either within or without the county or division where the action is pending.” Id. The Rules also provide that “[i]n every trial, the testimony of witnesses shall be taken in open court, unless a statute, these rules or the Rules of Evidence provide otherwise.” M. R. Civ. P. 43(a). Criminal trials are also open to the public as required by the First and Sixth Amendments to the U.S. Constitution.
A few statutes govern particular types of proceedings, such as criminal proceedings involving juveniles.
The Maryland Court of Appeals—the state’s highest court—has recognized the public’s right of access to criminal trials and criminal pretrial proceedings predicated on the First Amendment and on the state constitutional analogue, Article 40 of the Maryland Declaration of Rights. Buzbee v. Journal Newspapers, Inc., 465 A.2d 426, 431 (Md. 1983); see Patuxent Publ’g Corp. v. State, 429 A.2d 554 (Md. Ct. Spec. App. 1981) (First Amendment right applies to pretrial “gag order” hearing); see also Hearst Corp. v. State, 484 A.2d 292, 295 (Md. Ct. Spec. App. 1984) (right to intervene to oppose closing of court file in criminal case was grounded in the First Amendment); see also Longus v. State, 7 A.3d 64, 72 (Md. 2010) (“The value of openness lies in the fact that people not actually attending trials can have confidence that standards of fairness are being observed.” (citation omitted)). The First Amendment and state analog are coextensive. Sigma Delta Chi v. Md. House of Delegates, 310 A.2d 156, 158 (Md. 1973).
The Court of Appeals has never considered the question of whether the First Amendment right applies outside the context of criminal court proceedings. Baltimore Sun Co. v. Mayor & City Council of Baltimore, 755 A.2d 1130, 1133–35 (Md. 2000) (declining to reach the constitutional question and instead finding that a right of access to civil proceedings and records existed under the common law). The Court of Special Appeals has held, however, that the First Amendment right of access extends both to civil trials and to court records. State v. Cottman Transmission Sys., Inc., 542 A.2d 859, 863 (Md. Ct. Spec. App. 1988) (right of access to civil trials is “predicated on the First and Fourteenth Amendments of the Constitution of the United States and Article 40 of the Maryland Declaration of Rights”); Baltimore Sun v. Thanos, 607 A.2d 565, 567–68 (Md. Ct. Spec. App. 1992) (First Amendment right of access applies to redacted presentence report that had been entered into evidence in criminal trial, but First Amendment right might be overcome by compelling state interest in maintaining confidentiality of such reports); Doe v. Shady Grove Adventist Hosp., 598 A.2d 507, 511 (Md. Ct. Spec. App. 1991) (“The right of access guaranteed by the First Amendment and Article 40 of the Maryland Declaration of Rights applies to pretrial proceedings, trial proceedings, and court records.” (citations omitted)). But see Group W Television Inc. v. State, 626 A.2d 1032, 1034 (Md. Ct. Spec. App. 1993) (no First Amendment right of the press to copy trial evidence).
The public also has a common law right of access applicable to court proceedings and records. In Baltimore Sun Co. v. Mayor & City Council of Baltimore, 755 A.2d 1130 (Md. 2000), the Court of Appeals canvassed the history of public access to both civil and criminal trials dating back to pre-colonial times, and concluded that “‘historically both criminal and civil trials have been presumptively open’ to the public.” Id. at 1134 (quoting Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 566–67 (1980)). The court in Mayor & City Council of Baltimore recognized that the “common law principle of openness is not limited to the trial itself but applies generally to court proceedings and documents.” Id. at 1134. Finding that “the right to the benefits of the common law of England, are presently embodied in Article 5 of the Maryland Declaration of Rights,” the court held that the “common law rule that court proceedings, records, and documents are open to the public is fully applicable in Maryland except to the extent that the principle has been modified by legislative enactments or decisions by this Court.” Id. at 1135.
The common law right, however, is subject to modification by statute, and the “Maryland General Assembly has created exemptions to the common law principle of openness” in a number of areas, particularly where privacy interests are at stake. Id.; Immanuel v. Comptroller of Treasury, 126 A.3d 196, 205 (Md. Ct. Spec. App. 2015) (“[C]ourt proceedings are presumed open unless a statute, rule, or appellate court decision provides otherwise.”). Most notably, in 2004, the Maryland legislature codified the common law right of access. See Md. Rules 16-901, et seq. As with the common law, the Rules begin with the presumption that “[j]udicial records are presumed to be open to the public for inspection.” Md. Rule 16-903(b); cf. State v. WBAL-TV, 975 A.2d 909, 921 (Md. Ct. Spec. App. 2009) (Maryland Rules “clearly reflect the common law presumption of the openness of court records that, as a general rule, can only be overcome by a ‘special and compelling reason.’” (quoting prior version of current Rule 16-912(d)(5)(A))).
Access to “Judicial Records”
In March 2004, Maryland adopted a comprehensive statutory scheme governing access to “Judicial Records.” See Md. Rules 16-901, et seq. The Maryland Rules explicitly state that “[j]udicial records are presumed to be open to the public for inspection.” Md. Rule 16-903(b). Accordingly, except as otherwise provided within the Rules themselves, “the custodian of a judicial record shall permit an individual appearing in person in the office of the custodian during normal business hours to inspect the record.” Id. Moreover, the right to “inspect” the record explicitly includes the right to copy it. Md. Rule 16-904(a) (“Except as otherwise expressly provided by law, a person entitled to inspect a judicial record is entitled to have a copy or printout of the record.”).
Under the Rules, the term “Judicial Records” is a catchall that encompasses five types of records: Administrative Records, Business License Records, Case Records, Notice Records, and Special Judicial Unit Records. See Md. Rule 16-902(h) (Definitions). Because the standards governing access to Judicial Records varies depending on which type of record is at issue, it is necessary to determine which sub-category of documents you seek in order to assess its availability or the best procedure for obtaining it.
- Notice Records: These are records that are “filed with the clerk of a court pursuant to statute for the principal purpose of giving public notice of the record.” Md. Rule 16-902(i). They include, for example, deeds, mortgages and other land records, and liens. Because “the court’s only function with respect to those records is to preserve them and make and keep them available for public inspection, there is no justification for shielding them, or any part of them, from public inspection.” Id. (Committee Note). Accordingly, the Rules state that “[e]xcept as otherwise provided by statute, a custodian may not deny inspection of a notice record that has been recorded and indexed by the clerk.” Md. Rule 16-905(a).
- Case Records: These include “all or any portion of a court paper, document, exhibit, order, notice, docket entry, or other record, whether in paper, electronic, or other form, that is made, entered, filed, or maintained by the clerk of a court in connection with an action or proceeding” as well as any other “miscellaneous record filed with the clerk of the court pursuant to law that is not a notice record.” Md. Rule 16-902(c)(1)(A) & (C). Nearly all documents related to a specific case before a given court, or other items that are filed with the clerk as a matter of course, are considered Case Records. This category also includes records pertaining to marriage licenses “issued and maintained by the court” and, “after the license is issued, the application for the license.” Md. Rule 16-902(c)(1)(B).
While the presumption of openness applies to Case Records, the Rules limit or forbid inspection of certain Case Records. Md. Rule 16-907. Notable Case Records that “the custodian shall deny inspection of” include: (1) certain types of cases involving children and family related actions (e.g., adoption, guardianship, and delinquency proceedings); see also Sumpter v. Sumpter, 50 A.3d 1098, 1107 (Md. 2012) (noting in dicta that a child custody investigatory report may be sealed if it contained reports of abuse or psychological findings); (2) warrants, applications, and supporting affidavits prior to execution; (3) presentence investigatory reports not filed with the court; (4) transcripts or recordings of court proceedings that were closed to the public; and (5) records ordered sealed by the court. Rule 16-907 also requires a denial of access to a variety of other filings. For an exhaustive listing, refer to the Rule.
In order to overcome the presumption of openness with respect to Case Records, the party seeking closure must show that a “special and compelling reason exists” to limit access to such records. Md. Rule 16-912(d)(5)(A). Moreover, any order limiting access to Case Records—which can only be made after notice is given and an opportunity provided for interested parties to oppose closure—must be “as narrow as practicable in scope and duration to effectuate the interest sought to be protected by the order.” Md. Rule 16-912(d)(1) & (3).
- Administrative Records: Administrative Records are records that concern the internal operations of the court itself. Md. Rule 16-902(a). Examples include orders or directives that govern “the operation of a court,” reports prepared by or for the court system, and the courts’ internal plans for handling jury selection, case management, electronic filing, and other administrative issues. Id. As the Committee Note following Rule 16-902 explains, because “the kinds of internal administrative records maintained by a court or other judicial agency, mostly involving personnel, budgetary, and operational management, are similar in nature and purpose to those kinds of administrative records maintained by Executive Branch agencies and that records pertaining to business licenses issued by a court clerk are similar in nature to records kept by Executive Branch agencies that issue licenses of one kind or another,” the Rules treat these Administrative Records “more or less the same as comparable Executive Branch records.” Accordingly, the Rules generally apply the Maryland Public Information Act (“PIA”), Maryland Code Annotated, General Provisions, § 4-101, et seq. (governing access to public records) to Administrative Records. Md. Rule 16-905(c).
Unless otherwise permitted by the PIA or the Rules themselves, the clerk or custodian is directed to deny applications for access to personnel and retirement records of court personnel as well as “judicial work product” (i.e., notes or drafts or other work product prepared by a judge or his or her staff). Md. Rule 16-905(e)-(f). The clerk is also required to deny inspection of documents that are either preliminary drafts or “purely administrative in nature” that are “not filed with the clerk and not required to be filed with the clerk.” Md. Rule 16-905(f)(3)(B)-(C). Finally, the Rules prohibit access to “an administrative record used by the jury commissioner,” but authorize disclosure, upon request, of “the names and zip codes of the sworn jurors contained on a jury list after the jury has been impaneled and sworn, unless otherwise ordered by the trial judge.” Md. Rule 16-905(c)(1)(A)-(B).
- Business License Record: This category includes any business license issued by the clerk of court, as well as any application for such a license or other judicial record “pertaining to” such an application. See Md. Rule 16-902(b). As with Administrative Records, the Rules treat Business License Records the same as similar records maintained by an Executive Branch agency and apply the standards set forth in the PIA. See Md. Rule 16-905(c)(1).
Records maintained in digital format are “open to inspection to the same extent that the record would be open to inspection” if in paper format. Md. Rule 16-910(a). Clerks of court are required to provide computers in the courthouses that the public can use free of charge. Md. Rule 16-910(c). To the extent digital access is not yet available to the records sought, a requester can submit a request to the State Court Administrator for digital access and offer a “proposed method of achieving that access.” Md. Rule 16-909(f)(1). Such digital access should generally be approved so long as it “will not directly or indirectly impose significant fiscal or operational burdens on any court or judicial agency.” Md. Rule 16-909(f)(2)(A).
Even before Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555 (1980), the Oklahoma Court of Criminal Appeals had recognized the presumptive openness of judicial proceedings and the functional values served by openness in Lyles v. State, 1958 OK CR 79, 330 P.2d 734 (rejecting claim of appellant that television coverage of trial had denied him a fair trial), and Neal v. State, 1948 OK CR 26, 192 P.2d 294 (exclusion of public from trial was prejudicial error). Richmond Newspapers and the Press–Enterprise cases have been cited and applied by the Oklahoma courts in a variety of contexts. See, e.g., Ynclan v. Woodward, 2010 OK 29, 237 P.3d 145 (citing Richmond Newspapers for importance of open judicial proceeding, but finding due process does not require that either parent have access to transcript of in camera interview of children in custody trial); Nichols v. Jackson, 2001 OK CR 35, 38 P.3d 228 (citing Press–Enterprise Co. v. Superior Court of Cal., 478 U.S. 1 (1986) (Press Enterprise II) for presumption of openness of criminal proceedings, and holding that closure of any aspect of the proceedings must be based on clearly articulated and specific findings that balance the rights of the accused and the public); Reeves v. State, 1991 OK CR 101, 818 P.2d 495 (citing Richmond Newspapers and Press–Enterprise Co. v. Superior Court of Cal., 464 U.S. 501 (1984) (Press–Enterprise I) for importance of public trials, but holding exclusion of public during testimony of minor victim of molestation did not abridge defendant’s rights); Shipman v. State, 1982 OK CR 3, 639 P.2d 1248 (relying on Richmond Newspapers to hold that criminal defendant could not exclude public from trial to prevent alleged harassment of witnesses). See also In the Matter of the Application of Spilman, 2010 OK 70, 240 P.3d 702 (citing Richmond Newspapers and Press–Enterprise I as constitutional underpinning for public’s right to know about disciplinary proceedings in case where court denied reinstated lawyer’s request that bar proceedings be sealed and expunged) (V.C.J. Taylor and J. Opala, concurring); Collier v. Reese, 2009 OK 86, 222 P.3d 966 (citing Richmond Newspapers and Press–Enterprise II for functional values of open judicial proceedings) (J. Opala, concurring); Reynolds v. Beacon Well Services, Inc., 1993 OK 104, 857 P.2d 74 (citing Richmond Newspapers and Press–Enterprise I for openness of judicial proceedings) (JJ. Wilson, Opala, Kauger, dissenting from majority decision that litigant did not have right to have court reporter transcribe administrative process of initial qualifications and excusals of civil jury panel); Oklahoma Pub. Co. v. Martin, 1980 OK 153, 618 P.2d 944 (citing Richmond Newspapers as support for statute requiring that mental competency hearings in criminal cases be open to public and media).
In Wright v. Grove Sun Newspaper Co., Inc., 1994 OK 37, 873 P.2d 983, the court concluded that accurate media accounts of a district attorney’s press conference were subject to a common–law fair report privilege. In support of its conclusion, the court cited Richmond Newspapers for the proposition that openness and publicity enhance the public’s confidence in the administration of a legal system.
Oklahoma does not have express statutory provisions comparable to Fed. R. Civ. P 43(a) or 77(b). However, Okla. Stat. tit. 22, §13 provides that the defendant in a criminal case is entitled to a speedy and public trial; there are also random statutes making reference to open court proceedings. For example, Okla. Stat. tit. 22, §§ 973–974 permit either prosecution or defense to present evidence of aggravating or mitigating circumstances after the defendant has entered a guilty plea, and § 974 says the evidence “must be presented by the testimony of witnesses examined in open court.” In general, records filed in court proceedings are subject to the Oklahoma Open Records Act, Okla. Stat. tit. 51, §§ 24A.1 et seq., see Nichols v. Jackson, 2002 OK 65, 55 P.3d 1044, and can be obtained simply by asking for them.
The United States Constitution and the Pennsylvania Constitution grant the public and the press a presumptive right of access to civil and criminal proceedings. See U.S. Const. amend. I; Pa. Const. art. I, §11 (“All courts shall be open.”); Commonwealth v. Berrigan, 501 A.2d 226, 232 (Pa. 1985) (“[T]he First Amendment to the Federal Constitution is broad enough to encompass the right of access to criminal trials to the public and media.”); Commonwealth v. Hayes, 414 A.2d 318, 321 (Pa. 1980) (“[I]n addition to providing a right to the accused for ‘a speedy public trial,’ Art. 1, § 9 [of the Pennsylvania Constitution] also has the additional requirement that ‘all courts shall be open.’”); see also In re M.B., 819 A.2d 59 (Pa. Super. 2003) (“This constitutional provision has been referred to as a ‘mandate’ for open and public trials . . . and has been applied in both civil and criminal cases . . . .”) (citations omitted).
There are three policy bases for such access: (1) access “fosters public confidence in the fairness” of the justice system; (2) it “aids in the public oversight of the judiciary”; and (3) it “serves as a ‘community therapeutic value.’” Commonwealth v. Davis, 635 A.2d 1062, 1069 (Pa. Super. 1993) (citations omitted).
There is also “a qualified First Amendment right of access to certain judicial … documents.” Commonwealth v. Martinez, 917 A.2d 856, 860 (Pa. Super. 2007). Thus, in Pennsylvania, the First Amendment right of access extends to both judicial proceedings and documents.
In Pennsylvania, the common law also grants the public and press a presumptive right of access to “public judicial documents.” Commonwealth v. Fenstermaker, 530 A.2d 414, 418 (Pa. 1987); see also Commonwealth v. Curley, --- A.3d ---, 2018 Pa. Super. LEXIS 599, at *9 (June 4, 2018) (recognizing “the right of the public to inspect judicial records”). The common law presumption of openness requires courts to balance “the presumption of openness attached to a public judicial document” against the “circumstances warranting closure of the document to public inspection.” Fenstermaker, 530 A.2d at 420.