A. The roots of access rights
The Supreme Court and Tenth Circuit have consistently recognized that the public and press have a presumptive First Amendment right of access to judicial proceedings in criminal cases. See Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 573 (plurality opinion) (“[A] presumption of openness inheres in the very nature of a criminal trial under our system of justice.”); United States v. Gonzales, 150 F.3d 1246, 1255 (10th Cir. 1998) (recognizing presumptive right). The rationale for recognizing such right is rooted in the “centuries-old history of open trials” and implicit in the First Amendment’s “core purpose” of assuring freedom of public discussion. Richmond Newspapers, 448 U.S. at 573. A corresponding constitutional right of access to civil proceedings, however, has never been specifically upheld by either the Supreme Court or the Tenth Circuit. Nor is there any definitive Supreme Court or Tenth Circuit “ruling on whether there is a constitutional right of access to court documents and, if so, the scope of such a right.” United States v. McVeigh, 119 F.3d 806, 812 (10th Cir. 1997) (“McVeigh II”). Instead, when analyzing whether a constitutional presumption of access extends to particular proceedings or records, the Tenth Circuit applies the two-pronged “experience and logic” analysis, also referred to as the Press-Enterprise II analysis. United States v. Gonzales, 150 F.3d 1246, 1256 (10th Cir. 1998) (citing Press-Enterprise Co. v. Superior Court, 478 U.S. 1 (1986) (“Press–Enterprise II”)) (assuming without deciding that the Press-Enterprise II analysis applies). Under the experience prong, courts must first ask “whether the place and process have historically been open to the press and general public.” Gonzales, 150 F.3d at 1256 (citing Press-Enterprise II, 478 U.S. at 8) (internal quotation marks omitted). Under the logic prong, courts are to consider “whether public access plays a significant positive role in the functioning of the particular process in question.” Id. (citing Press-Enterprise II, 478 U.S. at 8–9) (internal quotation marks omitted). In this prong of the analysis, the Tenth Circuit considers the following six structural interests: “informing the public discussion of government affairs, assuring the public perception of fairness, promoting the community-therapeutic effect of criminal justice proceedings, providing a public check on corrupt practices, intimidating potential perjurers, and generally enhancing the performance of all involved in the process.” U.S. v. Gonzales, 150 F.3d 1246, 1259 n.18 (citing McVeigh I, 106 F.3d at 336).
In addition to the constitutional right of access—and even where it does not apply—“the courts of this country recognize a general [common law] right to inspect and copy public records and documents, including judicial records and documents.” Nixon v. Warner Commc’ns, Inc., 435 U.S. 589, 597 (1978) (footnote omitted); see also United States v. Hickey, 767 F.2d 705, 708 (10th Cir. 1985) (acknowledging “the axiom that a common law right exists to inspect and copy judicial records”). As the Tenth Circuit has held, “[i]t is clearly established that court documents are covered by a common law right of access.” McVeigh II, 119 F.3d 806 (10th Cir. 1997)) (citing Nixon v. Warner Commc’ns, 435 U.S. 589, 599 (1978)).
Beyond constitutional and common law public access rights, public access to court proceedings and records often will be governed by statute or court rule. For example, Rule 77(b) of the Federal Rules of Civil Procedure provides that “[e]very trial on the merits must be conducted in open court and, so far as convenient, in a regular courtroom,” and Rule 43(a) provides that “the witnesses’ testimony must be taken in open court unless a federal statute, the Federal Rules of Evidence, these rules, or other rules adopted by the Supreme Court provide otherwise.”
The roots of public access to court proceedings and records lie in “democratic values of accountability and openness.” In re Globe Newspaper, 920 F.2d 88, 98 (1st Cir. 1990) (“[T]he prospect of criminal justice being routinely meted out by unknown persons does not comport with democratic values of accountability and openness.”). The public has a right to a “full understanding” of criminal proceedings, thereby placing the populace in a position “to serve as an effective check on the system.” In re Providence Journal Co., 293 F.3d 1, 10 (1st Cir. 2002). The First Circuit has “long recognized ‘that public monitoring of the judicial system fosters the important values of quality, honesty and respect for our legal system.’” Id. at 9; see also Siedle v. Putnam Inv., Inc., 147 F.3d 7, 10 (1st Cir. 1998) (same).
In addition, “[t]he appropriateness of making court files accessible is accentuated in cases where the government is a party: in such circumstances, the public’s right to know what the executive branch is about coalesces with the concomitant right of the citizenry to appraise the judicial branch.” FTC v. Standard Fin. Mgmt. Corp., 830 F.2d 404, 410 (1st Cir. 1987). There is a particular “societal interest” in public access to judicial records in cases involving challenges to state law on constitutional grounds. Nat'l Org. for Marriage v. McKee, 2010 U.S. Dist. LEXIS 90749, *19 (D. Me. Aug. 24, 2010).
The public’s right of access to judicial records is “vibrant” (Siedle, 147 F.3d at 10) and “strong and sturdy” (FTC, 830 F.2d at 410), but it is not absolute. “Important countervailing interests can, in given instances, overwhelm the usual presumption and defeat access. It follows that when a party requests a seal order, or . . . objects to an unsealing order, a court must carefully balance the competing interests that are at stake in the particular case.” Siedle, 147 F.3d at 10. However, “The citizens’ right to know is not lightly to be deflected. We agree . . . that ‘only the most compelling reasons can justify non-disclosure of judicial records.’” FTC, 830 F.2d at 410.
In the Second Circuit, public access to courts finds its "twin sources" in the common law right of public access to judicial documents and the qualified First Amendment right to attend judicial proceedings. In re Omnicom Grp., Inc. Sec. Litig., No. 02 CIV. 4483 RCC/MHD, 2006 WL 3016311, at *1 (S.D.N.Y. Oct. 23, 2006). Litigants seeking access to courts or judicial documents may ground their arguments in either doctrine but should note that each requires a different analysis.
First Amendment. The U.S. Supreme Court and the Second Circuit have consistently recognized that the public and press have a presumptive First Amendment right of access to judicial proceedings in criminal cases. Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 573 (1980) (plurality opinion). Though the right of access to criminal trials is not "explicitly mentioned in terms in the First Amendment . . . [the U.S. Supreme Court has] long eschewed any 'narrow, literal conception' of the Amendment's terms." Globe Newspaper Co. v. Super. Ct., 457 U.S. 596, 604, (1982). The Second Circuit has also extended this right to civil proceedings. See, e.g., Westmoreland v. Columbia Broad. Sys., Inc., 752 F.2d 16, 23 (2d Cir.1984) (asserting that "the First Amendment does secure to the public and to the press a right of access to civil proceedings").
The right of access applies to certain "judicial documents" filed in connection with litigation. To determine whether a document qualifies as such, the Second Circuit uses the "experience and logic" test articulated by the Supreme Court in Press-Enterprise Co. v. Superior Court, 478 U.S. 1, 9 (1986). This test requires the court to consider both (1) whether the documents "have historically been open to the press and general public" and (2) whether "public access plays a significant positive role in the functioning of the particular process in question." Lugosch v. Pyramid Co. of Onondaga, 435 F.3d 110, 120 (2d Cir. 2006) (quoting Press-Enter. Co., 478 U.S. at 8). As further explained by the Second Circuit in Lugosch, 453 F.3d at 120, "courts that have undertaken this type of inquiry have generally invoked the common law right of access to judicial documents in support of finding a history of openness. The second approach considers the extent to which the judicial documents are derived from or [are] a necessary corollary of the capacity to attend the relevant proceedings." (internal quotation marks and citations omitted).
The presumption of access under the First Amendment is not absolute. Once the court finds that a qualified First Amendment right of access to certain judicial documents exists, documents may still be sealed, but only if "specific, on the record findings are made demonstrating that closure is essential to preserve higher values and is narrowly tailored to serve that interest." In re N.Y. Times Co., 828 F.2d 110, 116 (2d Cir. 1987).
Common Law. Historically, at common law, "both civil and criminal trials have been presumptively open." E*Trade Fin. Corp. v. Deutsche Bank AG, 582 F. Supp. 2d 528, 531 (S.D.N.Y. 2008) (citing Richmond Newspapers v. Virginia, 448 U.S. 555, 580 n.17 (1980)). As with the First Amendment, the right of access also extends to judicial documents. The Second Circuit has emphasized that "the common law right of public access to judicial documents is firmly rooted in our nation's history." Lugosch, 435 F.3d at 119.
The application of the common law doctrine of access requires a multi-step analysis. First, the party seeking access must show that the document, or documents, in question are "judicial documents." Once this is established, the common law presumption of access applies. Second, the court must determine the weight of the presumption, which is "governed by the role of the material at issue in the exercise of Article III judicial power and the resultant value of such information to those monitoring the federal courts." Id. at 119. Documents that more directly affect an adjudication are given more weight than those that "come within the court's purview solely to insure their irrelevance.” Id. (quoting United States v. Amodeo, 71 F.3d 1044, 1049 (2d Cir. 1995) ("Amodeo II")). Finally, once the weight is determined, the court must "balance competing considerations against it." Amodeo II, 71 F.3d at 1050. Competing considerations may include the privacy interests of those resisting disclosure, or the potential of danger to the public should disclosure impair law enforcement or judicial efficiency. Id.
The right of public access to judicial proceedings and records derives from two independent sources: the common law and the First Amendment. Va. Dep't of State Police v. Wash. Post, 386 F.3d 567, 575 (4th Cir. 2004); Doe v. Pub. Citizen, 749 F.3d 246, 265 (4th Cir. 2014).
The common law right of access reflects the historical practice of American courts to permit public access to judicial proceedings and records. The First Amendment right of access arises from the amalgam of its guarantees of speech, press and assembly. Nixon v. Warner Commc’ns, Inc., 435 U.S. 589, 597 (1978); Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 577 (1980).
The Fifth Circuit has affirmed that there is a constitutionally-embedded presumption of openness in judicial proceedings. 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). Therefore, the news media is entitled to observe, investigate, and report on all public proceedings involved in a trial. United States v. Chagra, 701 F.2d 354, 361 (5th Cir. 1983); see also United States v. Edwards, 785 F.2d 1293, 1294 (5th Cir. 1997). The judiciary, like the legislative and executive branches, is a branch of democratic government, and the public has no less right under the First Amendment to receive information about judicial proceedings than it has to know how other governmental agencies work and to receive other ideas and information. In re Express-News Corp., 695 F.2d 807, 809 (5th Cir. 1982).
But the right of access to judicial proceedings is not absolute. While the First Amendment guarantees the press and public a right of access, it only guarantees access to information that is available to any other member of the general public. United States v. Brown, 250 F.3d 907, 914 (5th Cir. 2001). The First Amendment right does not provide journalists with special privileges denied other citizens. United States v. Harrelson, 713 F.2d 1114, 1116-17 (5th Cir. 1985). Furthermore, the First Amendment right of public access to trials will yield to an accused’s Sixth Amendment right to a fair trial in certain circumstances. Id. at 1116.
The media’s right to know the identities of the parties in a case does not equal the right to attend and observe trials. Anonymity of parties is thus permissible in certain instances where a complete closure o the courtroom would not be acceptable. Doe v. Stegall, 653 F.2d 180, 185 (5th Cir. 1981). This is because the public right to scrutinize governmental functioning is not so impaired by a grant of anonymity to a party as it is by closure of the trial itself, and the assurance of fairness preserved by public presence at a trial is not lost when one party’s cause is pursued under a fictitious name. Id. Nevertheless, there remains a clear and strong First Amendment interest in ensuring that what transpires in the courtroom is public property. Id.
Even when a competing interest merits closure or anonymity, it is unlikely to justify prior restraints on the media (gag orders). Under the First Amendment, prior restraints on publication are constitutionally disfavored nearly to the point of extinction. Brown, 250 F.3d at 914.
The Fifth Circuit has held that in addition to the First Amendment right, there is a right of public access derived from common law that creates a presumption of access, but the right is also not absolute. Sec. & Exch. Comm’n v. Van Waeyenberghe, 990 F.2d 845, 848 (5th Cir. 1993); Belo Broad. Corp. v. Clark, 654 F.2d 423, 429 (5th Cir. 1981). The decision as to access is one left to the discretion of the trial court, a discretion to be exercised in light of the relevant facts and circumstances of the particular case. Belo Broad.Corp., 654 F.2d at 430. Furthermore, every court has supervisory power over its own records, and access can be denied where court files and records might become a vehicle for improper purposes. Van Waeyenberghe, 990 F.2d at 848. In exercising its discretion to seal judicial records, the court must balance the public’s common-law right of access against the interests favoring nondisclosure. Id.
The common-law right of access will generally only apply to “original records.” Pratt v. Dennis, 511 F.3d 483, 485 (5th Cir. 2007).
Generally, the Sixth Circuit adheres “to a policy of openness in judicial proceedings.” Applications of Nat’l Broad. Co., 828 F.2d 340, 343 (6th Cir. 1987) (citing Brown & Williamson Tobacco Corp. v. FTC, 710 F.2d 1165, 1176–81 (6th Cir. 1983)). “Openness in judicial proceedings promotes public confidence in the courts.” Id. at 347.
The Sixth Circuit has traced the roots of the rights of access back to the 19th Century when the D.C. Circuit explained that “[a]ny attempt to maintain secrecy, as to the records of this court, would seem to be inconsistent with the common understanding of what belongs to a public court of record, to which all persons have the right of access.” In re Knoxville News-Sentinel Co., 723 F.2d 470, (6th Cir. 1983) (quoting Ex Parte Drawbaugh, 2 App. D.C. 404, 407 (1894)).
Similarly, “[t]hroughout our history, the open courtroom has been a fundamental feature of the American judicial system.” Brown & Williamson, 710 F.2d at 1177. “Openness in judicial proceedings promotes public confidence in courts.” Applications of NBC, 828 F.2d at 347. The same principles that support access to court rooms also supports access to court records because “court records often provide important, sometimes the only, bases or explanations for a court’s decisions.” Brown & Williamson, 710 F.2d at 1177.
“[T]he First Amendment right of access to criminal proceedings is grounded generally in a ‘purpose of assuring freedom of communication on matters relating to the functioning of government.’” Indianapolis Star v. United States, 692 F.3d 424, 429 (6th Cir. 2012) (quoting Richmond Newspapers v. Virginia, 448 U.S. 555, 575 (1980)). This right of access extends to more than just a criminal trial, but also generally applies to other criminal proceedings, criminal records, civil proceedings, and civil records. Id. 429–30; Detroit Free Press v. Ashcroft, 303 F.3d 695 n.11 (6th Cir. 2002) (explaining that the Sixth Circuit and all other circuit courts that have addressed the issue have “agreed that the press and public have a First Amendment right to attend civil proceedings…”); Applications of NBC, 828 F.2d at 347 (“the importance of some pretrial proceedings dictates that the rule of openness not be confined to the actual trial”); Brown & Williamson, 710 F.2d at 1177–78 (“The Supreme Court’s analysis of the justifications for access to the criminal courtroom apply as well to the civil trial” and the same justifications require that access to judicial records also be subject to the First Amendment right of access).
The test for deciding if the First Amendment right of access applies to a particular proceeding or record is the “experience and logic” test: “if (1) that proceeding [or record] has ‘historically been open to the press and the general public’ and (2) ‘public access plays a significant positive role in the function of the particular process in question.’” Indianapolis Star, 692 F.3d at 429 (quoting Press-Enterprise Co. v. Superior Court, 478 US. 1, 8 (1986)). Once the First Amendment right of access attaches, it can only be overcome “where a party can show a compelling reason why certain documents or portions thereof should be sealed [and] the seal itself [is] narrowly tailored to serve that reason.” Shane Grp., Inc. v. Blue Cross Blue Shield of Mich., 825 F.3d 299, 305 (6th Cir. 2016) (citing Press-Enterprise Co. v. Superior Court, 464 U.S. 501, 509–11 (1984)).
In contrast to the First Amendment right of access that applies when the “experience and logic” test is met, “[a] common law right of access generally applies to all public records and documents, including judicial records and documents.” In re Morning Song Bird Food Litig., 831 F.3d 765, 777–78 (6th Cir. 2016) (citing Nixon v. Warner Commc’ns, Inc., 435 U.S. 589, 597 (1978)). The common law right of access “may be curtailed if, in the exercise of the court’s sound discretion, [the court] determines that non-disclosure is warranted.” United States v. Dejournett, 817 F.3d 479, 485 (6th Cir. 2016). This discretion “does not, however, imply that the District Court operates without standards.” Id. (quoting Brown & Williamson, 710 F.2d at 1177). This discretion must “be exercised in light of the relevant facts and circumstances of the particular case,” and must identify the “‘relevant facts and circumstances’ justifying non-disclosure…” in the case. Id. (quoting Brown & Williamson, 710 F.2d at 1177). For example, the common law right of access “does not reach materials properly submitted to the court under seal or otherwise kept confidential for important policy reasons.” In re Morning Song Bird Food Litig., 831 F.3d at 778 (citations omitted).
The "public's right of access to court proceedings and documents is well-established" and is “grounded in three important policy concerns. ‘Public scrutiny over the court system serves to (1) promote community respect for the rule of law, (2) provide a check on the activities of judges and litigants, and (3) foster more accurate fact finding.’” In re Associated Press, 162 F.3d 503, 506 (7th Cir. 1998) (quoting Grove Fresh Distribs., Inc. v. Everfresh Juice Co., 24 F.3d 893, 897 (7th Cir. 1994)).
“Born of the common law, this right also has constitutional underpinnings. . . . Indeed, the First Amendment provides a presumption that there is a right of access to ‘proceedings and documents which have “historically been open to the public” and where the disclosure of which would serve a significant role in the functioning of the process in question.’” Id. (citations omitted); United States v. Corbitt, 879 F.2d 224, 228 (7th Cir. 1989) (where “[p]resentence reports have not generally been available to the public, and publicity would not help to insure that the presentence investigation is properly conducted,” court held “there is no first amendment right of access to presentence reports”). See also Am. Civil Liberties Union of Ill. v. Alvarez, 679 F.3d 583, 599 n. 7 (7th Cir. 2012) (Supreme Court has recognized “a qualified right of the press and public to attend certain governmental proceedings, at least where the proceeding ‘historically has been open to the press and general public,’ and public access ‘plays a particularly significant role’ in the functioning of the proceeding in question and ‘the government as a whole’”) (quoting Globe Newsp. Co. v. Superior Court, 457 U.S. 596, 605-606, 102 S.Ct. 2613 (1982)).
“More general in its contours, the common-law right of access establishes that court files and documents should be open to the public unless the court finds that its records are being used for improper purposes.” Grove Fresh, 24 F.3d at 897; Corbitt, 879 F.2d at 228. The Seventh Circuit has held “there is a strong presumption in support of the common law right to inspect and copy judicial records” and “[w]here there is a clash between the common law right of access and a defendant's constitutional right to a fair trial, a court may deny access, but only on the basis of articulable facts known to the court, not on the basis of unsupported hypothesis or conjecture.” United States v. Edwards, 672 F.2d 1289, 1294 (7th Cir. 1982).
However, “[w]here judicial records are confidential”—i.e., “properly submitted to the court under seal”—the “party seeking disclosure” pursuant to the common law right of access “may not rely on presumptions, but must instead make a specific showing of need for access to the document. Of course, the public's right to inspect judicial documents may not be evaded by the wholesale sealing of court papers.” Corbitt, 879 F.2d at 228-29, 240 (while acknowledging that “there may be a public interest in disseminating some information underlying the sentencing of a public figure for crimes related to his public office,” the press would have to “show a ‘compelling need’ with sufficient specificity to merit disclosure of a presentence report in whole or in part,” beyond “the generalized public interest present in every criminal case (including those involving public officials)”; remanding for determination by district court).
“In light of the values which the presumption of access endeavors to promote, a necessary corollary to the presumption is that once found to be appropriate, access should be immediate and contemporaneous. . . . The newsworthiness of a particular story is often fleeting. To delay or postpone disclosure undermines the benefit of public scrutiny and may have the same result as complete suppression.” Grove Fresh, 24 F.3d at 897.
The Supreme Court and Eighth Circuit have both noted that the public’s right to access judicial proceedings and records originated in English common law. United States v. Powers, 622 F.2d 317, 323–24 (8th Cir. 1980) (stating that this right has had “seemingly universal recognition in this country since the earliest times”) (quoting Gannett Co. v. DePasquale, 443 U.S. 368, 414 (1979)). The U.S. Supreme Court has recognized a common law right of access to “judicial records and documents.” Nixon v. Warner Commc'ns, Inc., 435 U.S. 589, 597 (1978). The Eighth Circuit has recognized a common law right of access to court records in civil cases. See, e.g., IDT Corp. v. eBay, 709 F.3d 1220 (8th Cir. 2013) (applying common law right of access to complaint filed in civil case). The Eighth Circuit has said that “[w]hen the common law right of access to judicial records is implicated, [the court will] give deference to the trial court rather than taking the approach of some circuits and recognizing a ‘strong presumption’ favoring access.” Webster Groves Sch. Dist. v. Pulitzer Pub. Co., 898 F.2d 1371, 1376 (8th Cir. 1990) (citing United States v. Webbe, 791 F.2d 103, 106 (8th Cir.1986)).
In addition to the common law, the Supreme Court has also held that the public’s right to attend criminal trials derives from the First Amendment’s protections for speech, press, and assembly. Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 577 (1980) (noting that “without the freedom to attend such trials, which people have exercised for centuries, important aspects of freedom of speech and of the press could be eviscerated”). With some exceptions—such as in certain cases involving minors—the Eighth Circuit has consistently upheld this view, holding that the right to a public trial may be “invoked by the press or the public” under First Amendment jurisprudence. United States v. Thompson, 713 F.3d 388, 392 (8th Cir. 2013). That said, there are nevertheless limitations, and “[t]he press has no greater right of access to the courts than does the public.” Webster Groves Sch. Dist. v. Pulitzer Pub’lg Co., 898 F.2d 1371, 1374 n.3 (8th Cir. 1990).
When a party requests access to proceedings or documents, the Eighth Circuit looks to the two-prong test introduced in Press-Enterprise Co. v. Super. Ct., 471 U.S. 1 (1986) (“Press-Enterprise II”) to determine whether the presumptive First Amendment right of access applies. Zink v. Lombardi, 783 F.3d 1089, 1112 (8th Cir. 2015). In doing so, courts will consider “whether the place and process have historically been open to the press and general public” as well as “whether public access plays a significant positive role in the functioning of the particular process in question.” Id. (quoting Press-Enterprise II, 471 U.S. at 8). These are often referred to more simply as the “experience and logic” tests. Flynt v. Lombardi, 885 F.3d 508, 512–13 (8th Cir. 2018).
State constitutions, statutes, and court rules
Aside from the common law and First Amendment, several states in the Eighth Circuit provide for access through their constitutions, statutes, or court rules as well. See, e.g., Iowa Const. art. I, § 7 (“No law shall be passed to restrain or abridge the liberty of speech, or of the press.”); Neb. R. Ct. § 6-2003 (B) (“Expanded news media coverage of a proceeding is permitted unless the judicial officer finds that under the circumstances of the particular proceeding, such coverage would interfere with the rights of the parties to a fair trial.”); Ark. R. Crim. P. 38.1 (“No rule of court or judicial order shall be promulgated that prohibits representatives of the news media from broadcasting or publishing any information in their possession relating to a criminal case.”). Some state codes include statutory carve-outs for specific situations. See, e.g., S.D. Codified Laws § 26-7A-38 (“The name, picture, place of residence, or identity of any child, parent, guardian, custodian, or any person appearing as a witness in proceedings [in certain cases involving a minor] may not be published or broadcast in any news media or given any other publicity, unless for good cause it is specifically permitted by order of the court.”).
It has long been the rule in Alabama to allow public inspection of judicial records. Brewer v. Watson, 61 Ala. 310, 311 (1878). More than a century ago, the Supreme Court of Alabama held that “an inspection of the records of judicial proceedings kept in the courts of the country, is held to be the right of any citizen.” Id.; see also Ex parte Balogun, 516 So. 2d 606, 612 (Ala. 1987) (holding that “the public generally has a right of reasonable inspection of public records required by law to be kept, except where inspection is merely out of curiosity or speculation or where it unduly interferes with the public official’s ability to perform his duties”), abrogated on other grounds, Ex parte Crawford, 686 So. 2d 196 (Ala. 1996). The public’s right to inspect court records derives from the “universal policy underlying the judicial systems of this country [that] secrecy in the exercise of judicial power . . . is not tolerable or justifiable.” Jackson v. Mobley, 157 Ala. 408, 411–12, 47 So. 590, 592 (1908).
The Alabama Rules of Civil Procedure closely follow the federal rules, which generally require proceedings to occur in open court. See, e.g., Fed. R. Civ. P. 77(b) (“Every trial on the merits must be conducted in open court[.]”); Fed. R. Civ. P. 43(a) (“At trial, the witnesses’ testimony must be taken in open court unless a federal statute, the Federal Rules of Evidence, these rules, or other rules adopted by the Supreme Court provide otherwise.”). Alabama Rule of Civil Procedure 77(b) provides as follows:
Trials and hearings; orders in chambers. All trials upon the merits shall be conducted in open court, except as otherwise provided by statute, and so far as convenient in a regular court room. All other acts or proceedings may be done or conducted by a judge in chambers, without the attendance of the clerk of other court officials and at any place within the state either within or without the circuit; but no hearing, other than one ex parte, shall be conducted outside the circuit without the consent of all parties affected thereby.
Ala. R. Civ. P. 77 (b).
Alabama Rule of Civil Procedure 43(a) provides that “the testimony of witnesses shall be taken orally in open court, unless otherwise provided in these rules.”
Access to judicial records is also permitted by Alabama Code Section 36-12-40 (2009), which grants the public the right to inspect and copy “public writings.” “Public writings” has been interpreted by the Supreme Court of Alabama to include judicial records. Ex parte Balogun, 516 So. 2d at 612; Stone v. Consol. Publ’g Co., 404 So. 2d 678, 681 (Ala. 1981) (interpreting a “public writing” to be “a record as is reasonably necessary to record the business and activities required to be done or carried on by a public officer so that the status and condition of such business and activities can be known by our citizens”).
Courts are open in Alaska by custom and practice, though there is little Alaska case law on the subject. Access to both case-specific judicial documents and administrative records of the court system is primarily governed by Administrative Rules 37.5 through 37.8 of the Alaska Rules of Court, which state that they are “adopted pursuant to the inherent authority of the Alaska Supreme Court,” but any restrictions imposed by such rules would necessarily be subject to constitutional constraints. When the Open Meetings Act was revised in 1994, it expressly exempted the court system and legislature from the definition of public entities covered by the OMA, in recognition of the constitutional separation of powers. However, the Public Records Act contains no such exclusion, and instead has several sections that assume it encompasses access to legislative and judicial records. With respect to the judicial branch, this issue is academic, however, since the United States Supreme Court has recognized a First Amendment-based right of press and public access to judicial proceedings and records. Richmond Newspapers Inc. v. Virginia, 448 U.S. 555 (1980); Globe Newspaper Co. v. Superior Ct., 457 U.S. 596 (1982); Press-Enterprise Co. v. Superior Ct. (“Press Enterprise I”), 464 U.S. 501 (1984); Press-Enterprise Co. v. Superior Ct. (“Press Enterprise II”), 478 U.S. 1 (1986). This right has been applied to all stages of trial proceedings, including jury selection, and to pre-trial motion hearings.
It is arguable that the precise legal underpinnings of the main Alaska appellate cases dealing with access to judicial proceedings and records are not absolutely clear. To the extent that federal law establishes a First Amendment right of access to judicial proceedings and records, that constitutional law is, of course, binding upon state courts under the Supremacy Clause. And the Alaska Constitution can be interpreted to provide greater protection for First Amendment rights, but not less. Accordingly, it should be argued that the results and holdings in these cases are required by the First Amendment, and by the analogous provision in the Alaska Constitution, art. I, sec. 5, despite any ambiguity on this score in the opinions.
The most significant cases concerning public trials, or access to and exclusion from trial, have been decided in the state Court of Appeals, which in Alaska handles only criminal cases. These cases arose after the U.S. Supreme Court’s decision in Richmond Newspapers, and its progeny. The Alaska Court of Appeals extensively discussed the constitutional right of access in Renkel v. State, 807 P.2d 1087, 1089 (Alaska Ct. App. 1991), implicitly but not expressly basing its ruling on First Amendment-based judicial access cases. As discussed in more detail below, the court in Renkel held (and the state conceded) that an Alaska statute mandating closure of courtrooms to the public in sexual assault cases involving minor victims was unconstitutional, and that, absent particularized findings supporting closure, closure of a court to the press and public during testimony of minor victims is reversible error. And, as discussed below, the only Alaska Supreme Court decision dealing significantly with the right to a public trial is a pre-Richmond Newspapers ruling based on the right of an accused to a public trial. R.L.R. v. State, 487 P.2d 27, 35–38 (Alaska 1971).
In both Renkel and the subsequent case of Mitchell v. State, 818 P.2d 688, 689 (Alaska Ct. App. 1991), the Alaska Court of Appeals court reversed the trial courts because they had totally closed the courtroom to the public during the testimony of children who were witnesses without making the findings necessary to justify such an order. “Despite the fundamental nature of the right to public trial and the vital function it still serves, it is well accepted that the right is not absolute . . . It may be limited by some other overriding interest.” Renkel at 1089, (citing Globe Newspaper Co. v. Superior Ct., 457 U.S. 596, 606 (1982) and Richmond Newspapers Inc. v. Virginia, 448 U.S. 555, 581 n. 18 (1980)). The court in Renkel held, as a general rule, that “the broader the closure order becomes, the more compelling the interest sought to be protected must be. Concomitantly, each closure, whether limited or complete, whether based on substantial justification or overriding compelling interest, must be made sparingly on a case-by-case basis in which the judge carefully balances the right of public trial against the interests to be protected by the closure.” Id. at 1091–92. When partially or totally closing the courtroom, the trial judge must: make specific findings so that the record supports a legitimate reason for closure; consider alternatives before ordering closure; and fashion the closure order to be no broader than necessary. Id. at 1092. In a subsequent case, the Court of Appeals rejected a challenge to a conviction based on a courtroom closure, finding that in that case the trial judge had not excluded “all unnecessary people” from the courtroom during the testimony of a child witness, as had been requested, and instead only excluded one family member based on testimony at an evidentiary hearing about the effect of her presence on the child. The appeals court noted that the trial judge preserved the “public nature” of the trial and did make particularized findings, and that his order was limited to one person whom he excluded from the courtroom during the testimony of one witness. Brandon v. State, 839 P.2d 400, 413 (Alaska Ct. App. 1992).
In a subsequent case, arising from a decision to conduct a criminal trial in a state prison rather than in the courthouse in the same community, the Court of Appeals reiterated the constitutional status of the right to a public trial under both the U.S. and Alaska constitutions. Bright v. State, 875 P.2d 100 (Alaska Ct. App. 2004). The appeals court found that holding the inmate’s trial in the prison violated his constitutional rights. It seemed to base this decision on both the constitutional rights of an accused to a public criminal trial under the Sixth Amendment, and under article 1, section 11 of the Alaska Constitution and the public’s right of access to judicial proceedings under the First Amendment as established in Richmond Newspapers:
[W]hile the Sixth Amendment guarantees only a defendant's personal right to a public trial, Gannett Co. v. DePasquale, 443 U.S. 368, 379–80, 99 S.Ct. 2898, 2905, 61 L.Ed.2d 608 (1979), society also has a protected right, conferred by the First and Fourteenth Amendments, to attend and obtain information about criminal trials. Richmond Newspapers, 448 U.S. at 580, 100 S.Ct. at 2829 (main opinion), 448 U.S. at 581–82, 100 S.Ct. at 2830 (White, J., concurring), 448 U.S. at 584, 100 S.Ct. at 2831 (Stevens, J., concurring), 448 U.S. at 584-85, 100 S.Ct. at 2831 (Brennan and Marshall, JJ., concurring), 448 U.S. at 604, 100 S.Ct. at 2842 (Blackmun, J., concurring). The guarantee of public trials has been said to foster and preserve at least three important societal values. Two of these primarily protect a defendant's right to a fair trial, while the third involves society's broader interest in preserving social cohesion and the public peace by allowing citizens to assure themselves that justice is being done.
Bright, 875 P.2d at 105. The court observed that, “Notwithstanding these constitutional interests of both the defendant and the public, judges have the authority to restrict the access of some or all members of the public to some or all portions of criminal trials.” Id. at 106. However, it said, “this judicial power to restrict or deny public access to court proceedings may be exercised only when unusual circumstances imperil a more important societal value, and then only when alternative measures have been considered and found wanting.
[S]ince the concept of a secret trial is anathema to the social and political philosophy which motivates our society, the discretion to limit the public nature of judicial proceedings is to be sparingly exercised and, then, only when unusual circumstances necessitate it.
Id. at 106–107 (citing People v. Jones, 391 N.E.2d 1335, 1338 (1979)). The court in Bright said it was unwilling to flatly declare that the Alaska Constitution prohibits holding a criminal trial in a prison under any and all circumstances. However, any decision to hold a trial in a prison must be subjected to the strictest scrutiny and that decision must be supported by compelling reasons. Id. at 108. Although the trial judge’s ruling was supported by nine findings, the appeals court found this insufficient because the issue received only cursory consideration on the record, a number of the judge’s findings rested on debatable conclusions that were not the proper subject of judicial notice, and the defendant did not receive notice of the factors the judge was considering. It said there was little or nothing in the record to support the trial judge's findings—because this issue was never litigated or even substantively discussed in open court, the record contained neither testimony nor attorneys' statements to provide an underpinning for the judge's conclusions of fact. Id. at 110. The appellate court also criticized the judge’s findings as being generic rather than specific to Bright’s case, and said there was nothing in the record to indicate that the trial judge considered or investigated alternative measures that might have alleviated some of the perceived drawbacks of the Seward courthouse, so that trial could take place in the courtroom without undue security risk while at the same time preserving the order, decorum, and openness of the trial proceedings. It concluded that holding this trial at the prison violated Bright's right to a public trial under the United States Constitution and the Alaska Constitution, and, citing Renkel, held that “When a defendant's right to a public trial has been unlawfully abridged, the defendant need not show prejudice. Rather, the result is automatic reversal.” Id. at 109–110.
The main Alaska Supreme Court ruling dealing with public trials is in a 1971 case having to do with the right to a public trial, and a jury trial, in juvenile delinquency cases. R.L.R. v. State, 487 P.2d 27, 35–38 (Alaska 1971). The constitutional public trial right recognized in that case was based on the provisions of the Sixth Amendment and its state constitutional analogue guaranteeing an accused person the right to a public trial. While this was the specific issue presented in that case, the Alaska Supreme Court in R.L.R. extensively discussed the important purposes served by enforcing a right to public trials, including “teach[ing] the spectators about their government and giv[ing] them confidence in their judicial remedies.” The R.L.R. court noted a diversity of opinion on the policy question but noted that “in both the federal and Alaska's constitutions, the right to public trial is part of a list of rights explicitly stated to be rights of the accused.” But this case was decided before Richmond Newspapers and its progeny established that there is a First Amendment right of the press and public to attend trials, and it did not expressly address this First Amendment question. Citing pre-Richmond federal authority it concluded, “thus the right of ‘public trial’ is not one belonging to the public, but one belonging to the accused,” Id. at 36 (quoting Justice Harlan’s concurring opinion in Estes v. Texas— which itself was later distinguished and superseded in the cases recognizing a First Amendment right of access to courts).
In the later Renkel case, the appellant claimed he had been improperly denied his right to a public trial as provided by the Sixth Amendment of the United States Constitution and article 1, section 11 (the analogous provision) of the Alaska Constitution. But the Alaska Court of Appeals extensively discussed and clearly grounded its analysis on the case law establishing a First Amendment right of access by the press and public to judicial proceedings and records. 807 P.2d at 1089. Citing federal cases including Richmond, Press-Enterprise I, and Globe Newspaper Co., the appeals court states, “Although these cases arise from public access claims based on first amendment principles, we can derive much from their teachings on the deeply rooted nature of the public trial right in Anglo-American jurisprudence and the critical function that a public trial serves in the administration of justice today.” Id. The court extensively discusses the constitutional right of access enunciated in these First Amendment cases. It notes that “The function that a public trial serves has been eloquently detailed in the watershed case (Richmond Newspapers),” and that “‘one of the most conspicuous features of English justice, that all judicial trials are held in open court, to which the public have free access, . . . appears to have been the rule in England from time immemorial.” Id. And it summarizes this extension discussion of federal constitutional case lay by noting the “fundamental nature of the right to public trial and the vital function it serves.” Id. at 1091. Observing that the public trial right is not absolute, the court in Renkel elaborated: “The broader the closure order becomes, the more compelling the interest sought to be protected must be. Concomitantly, each closure, whether based on substantial justification or overriding compelling interest, must be made sparingly on a case-by-case basis in which the judge carefully balances the right of public trial against the interest protected by the closure.” Id. at 1091–92. In this case, the state conceded the unconstitutionality of the Alaska mandatory closure statute cited in the trial court, specifically on the basis of the US Supreme Court’s First Amendment-based ruling in Globe Newspaper Co. Id. at 1092. In determining that the closure could not be justified without relying on the unconstitutional statute, the appeals court noted that the general public, including the press, had been excluded during the testimony of three minor children. “Except that a transcript could be made public upon request, it appears that none of the safeguards of an open trial were maintained.” The court found that this was a total closure that could be upheld only upon a showing of a compelling interest supported by findings in the record, and, citing Globe Newspaper Co., that even a partial closure had to be based on particularized findings. Id. The court also rejected arguments that “this fatal infirmity” could be “cured by a remand to the trial judge to allow him to make the necessary findings to conform to the dictates of Globe Newspaper Co.” Id. at 1093 (emphasis added). The appeals court said it was “not unmindful of the tremendous emotional burden that children face while testifying in these particularly difficult cases. Nonetheless, the clear holdings of [three US Supreme Court cases including] Globe Newspaper Co. . . . require case specific evidence to provide the special protection sought by the state. Generalized subjective impressions cannot substitute.” Id. at 1094 (emphasis added). The Renkel court noted that the evidence presented in that case “could not provide facts sufficient to meet the requirements of Globe Newspaper Co.” Id. (emphasis added).
The appeals court also said it was unnecessary to deal with a claim by the appellant that his constitutional right to confrontation had been denied, among other reasons, “due to our conclusion that the deprivation of Renkel’s right to public trial mandates reversal.” Id. at n. 7. The only citation in Renkel to the Alaska Supreme Court’s decision in R.L.R. was for the proposition that the only available remedy was reversal, even in the absence of a specific claim of prejudice flowing from the closure, noting that the Court in R.L.R., which involved closing a juvenile criminal trial, had determined in that “where the right to public trial has been denied, no prejudice need be shown, since such a showing would be almost impossible to make.” Id. And citing a New York state case, the Renkel court held, “Prejudice need not be proved because there is ‘no way to gauge the great, though intangible, societal loss that flows from the frustration of the goal of the public confidence which occurs when the courthouse doors are closed.” Id. In summary, it cannot plausibly be argued that the Renkel court’s determination of “the fundamental nature of the right to an open courtroom and its clear violation in this case,” id., is not firmly grounded in the First Amendment-based rulings of Globe Newspapers, Press-Enterprise, and Richmond Newspapers.
Alaska Administrative Rule 50 sets out the process and standards for applying to cover any court proceedings use cameras or electronic devices or a sketch artist. This court rule is supplemented by the Alaska Court System’s Administrative Bulletin 45, which deals with a number of specific logistics issues, including the allowed number and placement of cameras and other devices. Both the court rule and administrative bulletin were revised for the first time in decades in 2019. The state’s Public Records Act, AS 40.25.110–220, is another primary source of the right of access to public records. The PRA and case law interpreting it as protecting a fundament right of access to records, observing that the legislature has expressed a bias in favor of public disclosure, and requiring that doubtful cases be resolved by permitting public inspection, are cited in a several cases dealing with access to judicial records. See, e.g., Johnson v. State, 50 P.3d 404, 406 and n. 10 (Alaska Ct. App. 2002) (citing Kenai v. Kenai Peninsula Newspapers Inc., 642 P.2d 1316, 1323 (Alaska 1982)).
The Arizona Constitution recognizes the public right of access to court proceedings in Article 2, section 11, which requires that “justice in all cases shall be administered openly.”
Likewise, the Arizona Supreme Court has held that “the public has a constitutional and common law right of access to observe court proceedings.” Ridenour v. Schwartz, 179 Ariz. 1, 3, 875 P.2d 1306, 1308 (Ariz. 1994).
Arizona Rule of Criminal Procedure 9.3(b)(1) provides that “[a]ll proceedings must be open to the public, including news media representatives, unless the court finds, on motion or on its own, that an open proceeding presents a clear and present danger to the defendant's right to a fair trial by an impartial jury.”
The Arizona’s Public Records law, codified at A.R.S. § 39-101 to § 39-221, permits the inspection and copying of public records. Under that law, barring any potential separation of powers limitations, courts must maintain and preserve court records for inspection and copying, subject to recognized exceptions.
Arizona Supreme Court Rule 122 provides the framework for permitting the use of recording devices in the courtroom, including still and video cameras. The rule also provides limitations on the use of such devices, including the manner of coverage, permissible equipment, camera pooling and the use of personal audio recorders.
Arizona Supreme Court Rule 122.1 governs the use of portable electronic devices in a courthouse. These devices include items such as laptops, smart phones and other devices with an internet connection. This rule also limits the type of information that can be recorded.
Arizona Supreme Court Rule 123 provides that court records are generally subject to public inspection, establishes exceptions to openness, sets forth the procedural framework for requests and clarifies how certain records may be redacted or protected from disclosure.
The public trial has roots in English common law and has been universally recognized in the United States since its earliest days as a nation. Gannett Co. v. DePasquale, 443 U.S. 368, 414 (1979) (Blackmun, J., concurring in part and dissenting in part). The Sixth Amendment to the United States Constitution guarantees that “[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial.” The right to a public trial has long been viewed as a safeguard against any attempt to employ our courts as instruments of persecution. United States v. Thunder, 438 F.3d 866, 867 (8th Cir. 2006) (quoting In re Oliver, 333 U.S. 257, 270 (1948)). The requirement of a public trial is for the benefit of the accused; the public may see he is fairly dealt with, and the presence of interested spectators may keep the jury aware of its responsibility and the importance of its function. Waller v. Georgia, 467 U.S. 39, 46 (1984) (quoting In re Oliver, 333 U.S. at 270 n. 25).
The right of the accused in the Sixth Amendment is no less protective of a public trial than the First Amendment right of the press and public. U.S. v. Thompson, 713 F.3d 388, 392 (8th Cir. 2013) (quoting Waller v. Georgia, 467 U.S. 39, 46 (1984)).
Using the same language as the Sixth Amendment to the United States Constitution, article 2, section 10 of the Arkansas Constitution provides for “the right to a speedy and public trial.” In Sirratt v. State, the Supreme Court of Arkansas recognized that the right to a public trial is one of the most important safeguards in the prosecution of persons accused of crime. 240, Ark. 47, 53, 398 S.W.2d 63, 66 (1966). Furthermore, members of the public have an interest in the trial of one charged with a felony, for a crime is a wrong against the public, and affects every citizen. Commercial Printing Co. v. Lee, 262 Ark. 87, 94, 553 S.W.2d 270, 273 (1977). The Supreme Court of Arkansas noted that openness is particularly appropriate during the jury selection process. Memphis Pub. Co. v. Burnett, 316 Ark. 176, 178, 871 S.W.2d 359, 360 (1994).
Quoting 18th Century legal writer Sir William Blackstone, the Supreme Court of Arkansas found that the public has a common-law presumption of access. Commercial Printing Co. v. Lee, 262 Ark. 87, 94-95, 553 S.W.2d 270, 273-274 (1977). The right to access, however, is not absolute. Arkansas Television Co. v. Tedder, 281 Ark. 152, 156, 662 S.W.2d 174, 176 (1983). Arkansas Rule of Civil Procedure 77(b) states that “[a]ll trials and hearing shall be public except as otherwise provided by law.” (emphasis added).
Arkansas Code Annotated § 16-10-105 states that, “The sittings of every court shall be public, and every person may freely attend the sittings of every court.” Courts applied the statute during voir dire examination in Taylor v. State, 284 Ark. 103, 679 S.W.2d 797 (1984), and during a suppression of evidence hearing in Shiras v. Britt, 267 Ark. 97, 589 S.W.2d 18 (1979). Other Arkansas statutes require the closure of proceedings like adoption hearings, cases involving trade secrets, juvenile cases, and domestic relations cases. Ark. Code Ann. § 4-75-605 (trade secrets); § 9-9-217(a)(1) (adoption hearings); § 9-27-325(i) (juvenile matters); § 16-13-222 (domestic relations).
In 2007, the Supreme Court of Arkansas adopted Administrative Order No. 19, which governs access to court records. In addition, a body of case law governs access to courts proceedings and records.
In NBC Subsidiary (KNBC-TV), Inc. v. Superior Court, 20 Cal. 4th 1178, 980 P.2d 337, 86 Cal. Rptr. 2d 778 (1999), the California Supreme Court held that California Code of Civil Procedure § 124 establishes a presumption of access to court proceedings. Its analysis was driven largely by U.S. Supreme Court cases finding a First Amendment right of access to criminal proceedings. The California Supreme Court held that, “in general, the First Amendment provides a right of access to ordinary civil trials and proceedings, that constitutional standards governing closure of trial proceedings apply in the civil setting, and that section 124 must, accordingly, be interpreted in a manner compatible with those standards.” Id. at 1212.
California Code of Civil Procedure § 124 provides that “[e]xcept as provided in Section 214 of the Family Code or any other provision of law, the sittings of every court shall be public.” In addition, California Rule of Court, Rule 2.550, requires court records to be open to the public, unless confidentiality is required by law. Rule 2.551 provides the procedure for parties to follow to request sealing. Appendix 1 of the Trial Court Records Manual contains a complete list of court records designated confidential by statute or rule. See id., available at www.courts.ca.gov/documents/trial-court-records-manual.pdf.
In addition, California courts have recognized a common law right of access to judicial documents once they are filed for consideration by the court. See Estate of Hearst, 67 Cal. App. 3d 777, 782-783, 136 Cal. Rptr. 821 (1977). The California Supreme Court has recognized a common law right of access to all public records, which includes records that are not within the scope of California’s Public Records Act. Sander v. State Bar of California, 58 Cal. 4th 300, 304, 314 P.3d 488, 165 Cal. Rptr. 3d 250 (2013) (“under the common law right of public access, there is a sufficient public interest in the information contained in the [State Bar] admissions database such that the State Bar is required to provide access to it if the information can be provided in a form that protects the privacy of applicants and if no countervailing interest outweighs the public’s interest in disclosure”).
Case law on a constitutional or common law right of access to courts is sparse in Colorado. The Colorado Supreme Court has held that “criminal trials and pretrial proceedings should not be closed to media representatives unless an overriding and compelling state interest in closing the proceedings is demonstrated.” Star Journal Publ’g Corp. v. Cnty. Court, 591 P.2d 1028, 1030 (Colo. 1979); see also In re P.R. v. Dist. Court, 637 P.2d 346, 354 (Colo. 1981) (recognizing a constitutional right, under both the First Amendment and Article II, Section 10 of the Colorado Constitution, “of the public and the media in attending a judicial proceeding which is the substantial equivalent of a trial”); People v. Whitman, 205 P.3d 371, 379 (Colo. App. 2007) (“It has long been recognized that the public and the press have a qualified First Amendment right to attend a criminal trial.”); In re Hearings Concerning Canon 35 of the Canons of Judicial Ethics, 296 P.2d 465, 467 (Colo. 1956) (discussing the importance of press access to courts and constitutional guarantees of freedom of the press and public trials); Stackhouse v. People, 2015 CO 48 ¶¶ 19–21, 386 P.3d 440, 447 (Márquez, J., dissenting) (discussing Press-Enterprise Co. v. Superior Court, 464 U.S. 501 (1984) and the right of the public and press to attend trial and jury selection); In re Water Rights Application, No. 86 CW 46, 1993 WL 739422, at *2 (Dist. Ct., Water Div. 3 Jan. 6, 1993) (discussing a “common law presumptive right of access” to court records, which “attaches at the time documents are filed with the Court, and the Court must consider whether the balance of equities favoring sealing overrides that presumptive right”).
In dicta, the Colorado Supreme Court recently reiterated that “presumptive access to judicial proceedings is a right recognized under both the state and federal constitutions,” but simultaneously declined to recognize a constitutional or common law right of “unfettered” access to criminal court records. People v. Owens, 2018 CO 55, ¶ 1, 420 P.3d 257, 257 (Colo. 2018).
Access to court records in Colorado is governed by statute and court rules. The Colorado Open Records Act (“CORA”), C.R.S. § 24-72-201 et seq., declares a “public policy of this state that all public records shall be open for inspection by any person at reasonable times . . . .” The Colorado Court of Appeals has interpreted CORA to mean that “unless there exists a legitimate reason for non-disclosure, any member of the public is entitled to review all public records. There is no requirement that the party seeking access must demonstrate a special interest in the records requested.” Anderson v. Home Ins. Co., 924 P.2d 1123 (Colo. App. 1996); A.T. v. State Farm Mut. Auto. Ins. Co., 989 P.2d 219, 221 (Colo. App. 1999) (“There is a presumption that the public has access to court records.”); People in Interest of T.T., 2017 COA 132, ¶ 15 (“the Colorado legislature did not intend court records to be open to public inspection for all purposes under the Public Records Act”).
CORA restricts the public right of access to court records if such inspection “is prohibited by rules promulgated by the supreme court or by the order of any court,” C.R.S. § 24-72-204(1)(c), or if disclosure would be contrary to any federal or state statute or regulation, among other restrictions.
The Colorado Supreme Court promulgated C.R.C.P. 121, § 1-5 to govern access to civil court files. The rule provides that a court may limit access to court files upon a motion of any party to a civil action only if the court finds that “harm to the privacy of a person in interest outweighs the public interest.” An order limiting access may be reviewed by the court at any time on its own motion or upon the motion “of any person.” C.R.C.P. 121, § 1-5(4). The rule “creates a presumption that all court records are to be open; it allows a court to limit access in only one instance and for only one purpose (when the parties’ right of privacy outweighs the public’s right to know); and it grants to every member of the public the right to contest the legitimacy of any limited access order.” Anderson, 924 P.2d at 1126. The rule “squarely places the burden upon the party seeking to limit access to a court file to overcome this presumption in favor of public accessibility by demonstrating that the harm to the privacy of a person in interest outweighs the public interest in the openness of court files.” Id.
The Colorado Supreme Court also has recognized that Chief Justice Directives “operate as such a court order or rule” within the meaning of CORA. Office of the State Court Adm’r v. Background Info. Servs., 994 P.2d 420, 422 (Colo. 1999). Chief Justice Directive 05-01, as amended, contains the Colorado Judicial Department’s Public Access to Court Records policy (“Public Access Policy”) (pdf), which governs access to court records generally. “Court records” include “any document, information, audio or video recording, or other item that is collected, received, and maintained by a court” or by a probation department, that is related to a judicial proceeding, defendant, or probationer. The Public Access Policy permits public access to court records, except as prohibited by federal or state statute, court rule, court order, or the Public Access Policy itself. (Section 4.10; Section 4.60.) Section 4.60 of the Public Access Policy lists several case classes, case types, and court records that are not accessible to the public, absent a court order. The Public Access Policy identifies the “Clerks of Court” as the official custodians of all case-related documents and information.
The Colorado Criminal Justice Records Act, C.R.S. § 24-72-301, et seq. (“CCJRA”), governs access to criminal justice records. Records of an “official action” are subject to a strong right of access, but inspection of other criminal justice records may be limited at the discretion of the courts. Madrigal v. City of Aurora, 2014 COA 67, ¶ 9, 349 P.3d 297, 299 (Colo. App. 2014) (citing C.R.S. §§ 24-72-303, -304, & -305); Freedom Colo. Info., Inc. v. El Paso Cnty. Sheriff’s Dept., 196 P.3d 892, 897 (Colo. 2008); People v. Thompson, 181 P.3d 1143, 1145–46 (Colo. 2008); Office of State Court Adm’r, 994 P.2d at 432 (“absent statutory mandate dealing with particular court records, such as records of official action in criminal cases, the courts themselves retain authority over the dissemination of court records”).
There are two kinds of courts in Connecticut: state and federal. Each has its own rules and case law governing public access; some of the federal case law binds the state courts but not vice versa (because of U.S. Const. art. 6, the Supremacy Clause). The state court system has three levels: the Superior Court (trial-level, located in about twenty locations around the state); the Appellate Court (appeals court to which almost every superior court case has a right to go after decision, located in Hartford); and the Supreme Court (the final say on appeals; almost all cases must be given permission to be heard here; located in Hartford). Although the state court system hears two kinds of cases (civil and criminal), it breaks the category of civil cases down into many sub-categories and at the trial level hears some of them in separate sessions, such as family, complex litigation, housing, small claims, and probate.
The federal system also has three levels: the District Court (trial-level, located in Hartford, New Haven, and Bridgeport with cases randomly assigned to each); the U.S. Court of Appeals for the Second Circuit (appeals court binding Connecticut, Vermont, and New York to which almost every district court case may go if desired; located in lower Manhattan); and the Supreme Court (where virtually no case goes without permission; decides only about 80 cases a year). The federal system divides cases into one of two categories, civil or criminal, and all are heard by the same judges on the same docket. The national government also operates the bankruptcy court (called the United States Bankruptcy Court for the District of Connecticut), which hears only specific matters relating to the sorting-out of debts; there is one bankruptcy judge in Hartford, New Haven, and Bridgeport. Lastly, the executive branch operates something colloquially referred to as “immigration court,” which is not a court but an administrative hearing mechanism within the Department of Justice. Hearings occasionally occur in the Hartford federal building (450 Main Street), but as of this writing have almost exclusively been moved to the Kennedy buildings on New Sudbury Street in Boston, Massachusetts.
Connecticut’s courts have recognized the presumption of open court proceedings as “a fundamental principle of our judicial system” dating back to the legal system of the state’s former colonial ruler, Great Britain. Doe v. Conn. Bar Examining Comm., 263 Conn. 39, 65, 818 A.2d 14, 31 (2003); see also State v. Kelly, 45 Conn. App. 142, 148, 695 A.2d 1, 4 (1997) (noting that courtroom closure should be “sparingly granted” because the openness of the judicial system “enhances the basic fairness of that system”).
The federal court system recognizes that both federal decisional law and the First Amendment guarantee public access to courts, although the access depends upon the type of court proceeding occurring. See generally, e.g., United States v. Doe, 63 F.3d 121, 125–26 (2d Cir. 1995). As in the state system, closure of court proceedings is generally viewed as a rare, extreme measure.
The D.C. Circuit has not expanded the holding in Richmond Newspapers and its progeny to provide for a First Amendment presumption of access beyond criminal proceedings. In re N.Y. Times Co., 585 F. Supp. 2d 83, 87 n. 4 (D.D.C. 2008) (applying First Amendment right of access to certain sealed search warrant materials relating to the government’s investigation into the anthrax mailings of 2001).
The D.C. Circuit holds that the First Amendment protects public access to court records and proceedings if the court determines that such access (i) has historically been available and (ii) “plays a significant positive role in the functioning of the particular process in question.” In re Reporters Comm. for Freedom of the Press, 773 F.2d 1325, 1336 (D.C. Cir. 1985) (citing Press-Enterprise Co. v. Super. Ct., 478 U.S. 1, 8-9 (1986) (“Press-Enterprise II”). Both of these questions “must be answered affirmatively before a constitutional requirement of access can be imposed.” In re Reporters Comm. for Freedom of the Press, 773 F.2d 1325, 1332 (D.C. Cir. 1985). The right of access is qualified, however. If a court determines that there is a First Amendment right of access to certain documents, the government may overcome that right by demonstrating “an overriding interest based on findings that closure is essential to preserve higher values and is narrowly tailored to serve that interest.” Id.
Despite the general preference of courts to decide common law principles instead of constitutional questions, the D.C. Circuit has on occasion chosen to reach the constitutional issue “because of the different and heightened protections of access that the First Amendment provides over common law rights.” Wash. Post v. Robinson, 935 F.2d 282, 288 n. 7 (D.C. Cir. 1991) (recognizing First Amendment right of access to plea agreements);see also In re N.Y. Times Co., 585 F. Supp. 2d 83, 87 n. 3 (D.D.C. 2008) (recognizing it is unusual to rule on the constitutional question when the case can be resolved on common law grounds but noting the D.C. Circuit has directed courts to “proceed [in addressing constitutional grounds] when a party claims that there is both a common law right of access and a constitutional right of access under the First Amendment.”).
The D.C. Circuit has applied the common law presumption of access to judicial documents and records. United States v. El-Sayegh, 131 F.3d 158, 160 (D.C. Cir. 1997) (judicial records are subject to the common law right of access depending on the role it plays in the adjudicatory process but finding no common law right of access to plea agreement). The common law right of access to judicial proceedings is “largely controlled by the second of the First Amendment criteria”—i.e., whether access provides a significant positive role in the functioning of the proceedings. Id.; see also In re Reporters Comm. for Freedom of the Press, 773 F.2d 1325, 1336 (D.C. Cir. 1985).
Whether a document must be disclosed pursuant to the common law right of access involves a two-step inquiry. First, the court must decide “whether the document sought is a ‘public record.’ If the answer is yes, then the court should proceed to balance the government's interest in keeping the document secret against the public's interest in disclosure.” Wash. Legal Found. v. U.S. Sentencing Comm'n, 89 F.3d 897, 898 (D.C. Cir. 1996). As a matter of federal common law, a “public record” is a government document created and kept for purposes of memorializing or recording an official action, decision, statement, or other matter of legal significance, broadly conceived. Id. (finding documents compiled by advisory committee established by U.S. Sentencing Commission's Advisory Working Group on Environmental Sanctions are not public records).
In deciding whether to furnish access to a record, a court should consider: (1) the need for public access to the documents at issue; (2) the public use of the documents; (3) the fact of objection and the identity of those objecting to disclosure; (4) the strength of the generalized property and privacy interests asserted; (5) the possibility of prejudice; and (6) the purposes for which the documents were introduced. United States v. Hubbard, 650 F.2d 293, 317–22 (D.C. Cir. 1980) (applying test determining whether to unseal documents seized from third-party defendant Church of Scientology and that were subsequently introduced, under seal, at pre-trial suppression hearing by defendant church officers and employees for purposes of demonstrating unlawfulness of search).
The common law right of access has been applied concomitantly with the First Amendment right of access. In re N.Y. Times Co., 585 F. Supp. 2d 83, 87 n. 3 (D.D.C. 2008) (applying common law right of access to certain sealed search warrant materials relating to the government’s investigation into the anthrax mailings of 2001, which had become common knowledge).
The Sixth Amendment guarantees a public trial in all criminal cases, and Fed. R. Civ. Proc. 77(b) provides that “[a]ll trials upon the merits shall be conducted in open court.” Fitzgerald v. Hampton, 467 F.2d 755, 764 (D.C. Cir. 1972) (citing Rule 77(b)).
In Delaware, the right of access to judicial records and proceedings does not derive from its constitution. Article I, §5 of the Constitution of the State of Delaware provides, “The press shall be free to every citizen who undertakes to examine the official conduct of persons acting in a public capacity.” However, this provision has been deemed to not preclude sealing of divorce matters involving a public official under a specific statute. C. v. C., 320 A.2d. 717, 726 (Del. 1974). On the other hand, Section 5 has been cited in other decisions in connection with the right of access to judicial proceedings. See Newradio Group, LLC v. NRG Media, LLC, 2010 WL 935622 at *1 (Jan. 27, 2010).
Article I, Section 9 of the Delaware Constitution states, in part, “All courts shall be open….” This provision has been held not to be directed to the issue of public access to judicial proceedings. C. v. C., 320 A.2d. 717, 726 (Del. 1974).
Delaware does recognize a right of access pursuant to its common law, in addition to the right of public access arising under the First Amendment to the Constitution of the United States. C. v. C., 320 A.2d. 717, 723 (Del. 1974) (recognizing common law right); Gannett Co., Inc. v. State, 571 A.2d 735, 742 (Del. 1989) (First Amendment right); Horres v. Chick-Fil-A, Inc., 2013 WL 1223605 at *1 (Del. Ch. Mar. 27, 2013) (recognizing the two sources of the right to access are the First Amendment and common law); Matter of 2 Sealed Search Warrants, 710 A.2d 202, 206 (Del. Super. 1997) (criminal).
In criminal cases in the Superior Court, Criminal Rule 56(b) states that “[a]ll pleas, hearings, trials and sentences shall be conducted in open court and so far as convenient in a regular courtroom unless otherwise provided by statute or these rules.” Similarly, in the Family Court, Criminal Rule 62(c) states that “[u]nless otherwise required by statute or rule, all records of proceedings before the Court shall be public. If sufficient reasons exist, the Court in its discretion may close records of proceedings.”
District of Columbia
The U.S. Supreme Court consistently has recognized that the public and press have a presumptive First Amendment right of access to judicial proceedings in criminal cases, finding that “a presumption of openness inheres in the very nature of a criminal trial under our system of justice.” Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 573 (1980) (plurality opinion). It has not directly addressed whether the public and the press also have a constitutional right of access to civil proceedings, though the California Supreme Court noted that “every lower court opinion of which we are aware that has addressed the issue of First Amendment access to civil trials and proceedings has reached the conclusion that the constitutional right of access applies to civil as well as to criminal trials.” NBC Subsidiary (KNBC-TV), Inc. v. Superior Court, 980 P.2d 337, 358 (Cal. 1999). Some circuits also have recognized a constitutional right of access to court records, with one noting that “the public and press have a first amendment right of access to pretrial documents in general.” Associated Press v. District Court, 705 F.2d 1143, 1145 (9th Cir. 1983).
Although the D.C. Circuit has not addressed the constitutional right of access to civil proceedings, Dhiab v. Trump, 852 F.3d 1087, 1098 (D.C. Cir. 2017) (Rogers, J., concurring in part and concurring in the judgment), it has recognized a “strong presumption in favor of public access to judicial proceedings” in civil cases and criminal cases alike. Metlife, Inc. v. Fin. Stability Oversight Council, 865 F.3d 661, 665 (D.C. Cir. 2017); SEC v. Am. Int’l Grp., 712 F.3d 1, 3 (D.C. Cir. 2013); Hamen v. Islamic Republic of Iran, 318 F. Supp. 3d 194, 197 (D.D.C. 2018).
When considering whether a constitutional presumption of access applies to particular proceedings or records, courts apply the “logic and experience test,” also called the “Press-Enterprise test.” The test considers “whether the place and process have historically been open to the press and general public,” and “whether public access plays a significant positive role in the functioning of the particular process in question.” Press-Enterprise Co. v. Superior Court (Press-Enterprise II), 478 U.S. 1, 8 (1986) (citations omitted).
The D.C. Circuit has applied that test in the context of court proceedings and court documents. See Washington Post v. Robinson, 935 F.2d 282, 287-88 (D.C. Cir. 2008) (using the logic and experience test to conclude that there is a qualified First Amendment right of access to plea agreements).
In addition to the constitutional right—and even where it does not apply—“the courts of this country recognize a general common-law right to inspect and copy public records and documents, including judicial records and documents.” Nixon v. Warner Commc’ns, Inc., 435 U.S. 589, 597 (1978) (footnote omitted); see also Washington Legal Found. v. U.S. Sentencing Comm’n, 89 F.3d 897, 902 (D.C. Cir. 1996) (“[T]he common law bestows upon the public a right of access to public records and documents.”).
In addition, public access to court proceedings and records often will be governed by statute or court rule. For example, Federal Rule of Civil Procedure 77(b) provides that “[e]very trial on the merits must be conducted in open court and, so far as convenient, in a regular courtroom,” and Federal Rule of Civil Procedure 43(a) provides that “the witnesses’ testimony must be taken in open court unless a federal statute, the Federal Rules of Evidence, these rules, or other rules adopted by the Supreme Court provide otherwise.”
The Florida Supreme Court has acknowledged that the Richmond Newspapers decision established a First Amendment right to attend criminal trials. Most Florida decisions discussing access to judicial proceedings, however, are grounded in Florida’s strong common law rights of access to all stages of criminal and civil proceedings and that common law right is discussed in greater detail below. The Florida Supreme Court has expressly stated that “there is no first amendment right of access to pretrial discovery material.” Florida Freedom Newspapers, Inc. v. McCrary, 520 So. 2d 32, 36 (Fla. 1988). There is also no First Amendment right of access to criminal depositions or deposition transcripts that are not filed with the court. Palm Beach Newspapers, Inc. v. Burk, 504 So. 2d 378, 382 (Fla. 1987) (citing Seattle Times Co. v. Rhinehart, 467 U.S. 20 (1984)). The Florida Supreme Court has also disclaimed a First Amendment right to attend pretrial suppression hearings or other pretrial hearings. Miami Herald Publ’g Co. v. Lewis, 426 So. 2d 1, 6 (Fla. 1983). The open meetings provision found in Article I, Section 24 of the Florida Constitution does not include meetings of the judiciary, so there is no Florida Constitutional right of access to attend judicial proceedings.
There is a constitutional right of access under the Florida Constitution to judicial branch records, encompassing both court administrative records and civil and criminal judicial records. See Art. I, § 24 (a), Fla. Const. Without grounding its holding on the constitutional arguments, the court in Sarasota Herald-Tribune v. State, 924 So.2d 8 (Fla. 2d DCA 2005), acknowledged that, once exhibits are admitted as evidence in a criminal trial, the First Amendment right of access likely attaches.
Florida has recognized a “strong” common-law presumption of access to both criminal and civil proceedings and their records. Barron v. Florida Freedom Newspapers, Inc., 531 So. 2d 113, 116 (Fla. 1988). This presumption continues through the appellate process. Id. at 118.
Numerous provisions of Florida law provide for access to the courts. Article I, Section 16(a) of the Florida Constitution provides criminal defendants with a right, upon demand, to a “speedy and public trial.” Article I, Section 24 (a) gives “every person” a constitutional right of access to public records, including the records of the judicial branch. Florida Rule of Judicial Administration 2.420 provides for public access to records of the judicial branch (consisting of filed court records and administrative records), identifies court records that are automatically confidential (such as, for example, social security and bank account numbers, certain juvenile records, and the identities of victims of sexual or child abuse), and delineates procedures for determining confidentiality of both civil and criminal court records. (Rule 2.420 does not apply to judicial proceedings.)
Florida Rule of Judicial Administration 2.450 relates to cameras and other electronic coverage of judicial proceedings. Florida Rule of Criminal Procedure 3.220 governs criminal discovery. Access to records online is governed by Florida Supreme Court Administrative Order No. AOSC14-19 (and as subsequently amended regarding the contours of the “Access Security Matrix,” which defines various levels of online access based on user role and document type). In re Amendments to Florida Rule of Judicial Admin. 2.420, 153 So. 3d 896, 899 (Fla. 2014). The Florida Supreme Court may designate cases as “high profile,” making the related court documents available through its website at http://www.floridasupremecourt.org/pub_info/index.shtml. Chief judges of the various District Courts of Appeal and circuit courts may also enter orders designating cases “high profile,” and making imaged court records in those cases available online. Typically, clerks of court provide a link to high profile cases from the respective clerk’s home page.
Links to Florida court websites can be found at http://www.flcourts.org. Most trial and appellate courts have entered administrative orders impacting access to proceedings, records and courtrooms. Most courts will also have a court contact person, such as a public information officer, media specialist or court administrator’s office employee, designated to assist the media regarding access to proceedings. Check the applicable court’s website for further information.
Chapter 119, Florida Statutes, governs the records of the executive branch, which includes many criminal discovery records in the hands of State Attorneys and law enforcement.
While recognizing that the public right of access to judicial records and proceedings is rooted in the First Amendment, see, e.g., Rockdale Citizen Publ’g Co. v. State, 266 Ga. 579, 581 (1996) (“We must do our very best to hold fast to the values embodied by the First Amendment even in extreme and painful cases, because we cannot suspend it and remain all that we strive to be.”), the Georgia Supreme Court has repeatedly stressed the critical importance of public access to the health and integrity of the state’s judicial system, oft noting, as in R.W. Page Corp. v. Lumpkin, 249 Ga. 576, 578 (1982), that “Georgia law, as we perceive it, regarding the public aspect of hearings in criminal cases is more protective of the concept of open courtrooms than federal law.” See id. at 579 (“A Georgia trial court judge must approach these issues possessed of less discretion than his federal counterpart because our constitution commands that open hearings are the nearly absolute rule and closed hearings the very rarest of exceptions.”).
In R.W. Page Corp., 249 Ga. at 576 n.1, a criminal case in which the Court protected and expounded upon the public right of access, the Court declared: “This court has sought to open the doors of Georgia’s courtrooms to the public and to attract public interest in all courtroom proceedings because it is believed that open courtrooms are a sine qua non of an effective and respected judicial system which, in turn, is one of the principal cornerstones of a free society.” See also State v. Brown, 293 Ga. 493, 493–94 (2013) (quoting Zugar v. State, 194 Ga. 285, 289–90 (1942)) (“It is a fundamental part of our judicial system that the general public be permitted to witness court proceedings sufficiently to guarantee that there may never be practiced in this State secret or star-chamber court proceedings, the deliberations of the juries alone excepted.”).
Similarly, in Atlanta Journal v. Long, 258 Ga. 410, 411 (1988), the first modern civil case in which the Court protected and expounded upon the right of public access, the Court stated: “Public access protects litigants both present and future, because justice faces its gravest threat when courts dispense it secretly. Our system abhors star chamber proceedings with good reason. Like a candle, court records hidden under a bushel make scant contribution to their purpose.” See also Florida Publ’g Co. v. Morgan, 253 Ga. 467, 473 (1984) (providing for public access to juvenile proceedings) (“at English common law and in Colonial America, trials have been open to the public for reasons which, throughout history, have fostered and continue to foster a role for the judiciary appropriate to our scheme of constitutional government.”).
Georgia has set as an official state goal the facilitation of public access to court information. In a report adopted by the Georgia Judicial Council and State Bar, a judicial commission concluded that, “Courts at all levels in Georgia must promote long-term public confidence and support of the judicial system by demonstrating and practicing transparency, establishing as one of their core functions the effective provision of convenient and timely public access to court procedures, schedules, records and proceedings.” See Embracing the Courts of the Future: Final Report of the Next Generation Courts Commission at 21–22 (March 2014).
In 2018, the Georgia Supreme Court updated the state’s uniform rule on electronic access to trial courts and added a preamble reiterating that, “Open courtrooms are in indispensable element of an effective and respected judicial system. It is the policy of Georgia’s courts to promote access to and understanding of court proceedings not only by the participants in them but also by the general public and by news media who report on the proceedings to the public.” Uniform Superior Court Rule 22(A), https://www.gasupreme.us/wp-content/uploads/2018/02/USCR_22_Order-FINAL_Feb-6.pdf.
The Hawai’i Constitution provides at least as much protection of the right of the public to access criminal trials as has been found to exist by the United State Supreme Court in the First Amendment to the United States Constitution. Oahu Publ’ns, Inc. v. Ahn, 133 Hawai’i 482, 494, 331 P.3d 460, 474 (2014).
Similar to the federal constitution, the Hawai’i constitution provides that “[n]o law shall be enacted . . . abridging the freedom of speech or of the press.” Haw. Const. art. I, § 4. In interpreting and applying article I, section 4 of the Hawai’i constitution, the Supreme Court of Hawai’i considers the case law established under the First Amendment to the United States Consitution. Oahu Publ’ns, Inc. v. Ahn, 133 Hawai’i 482, 494, 331 P.3d 460, 474 (2014) (citing In re Haw. Gov’t Employees Ass’n, AFSCME, Local 152, AFL-CIO, 116 Hawai’i 73, 84, 170 P.3d 324, 335 (2007)). However, the Hawai’i Supreme Court is amenable to recognizing greater free speech protection than that provided by the federal First Amendment: “‘Effectively, the language of federal and Hawai’i constitutional free speech provisions is identical’ but ‘this court may find that the Hawai’i Constitution affords greater free speech protection than its federal counterpart.” Oahu Publ’ns, Inc. v. Ahn, 133 Hawai’i 482, 494, 331 P.3d 460, 474 (2014) (citing Crosby v. State Dep’t of Budget and Fin., 76 Hawai’i 332, 340 n.9, 876 P.2d 1300 n.9 (1994) and State v. Rodriguez, 128 Hawai’i 200, 203 n.8, 286 P.3d 809, 812 n.8 (2012).
Applying these principles in discussing the right of the public to access criminal trials, the Hawaii Supreme Court “has recognized a tradition of public access, declaring it ‘firmly embedded in [its] system of jurisprudence’ as a ‘general policy of open trials.’” Oahu Publ’ns, Inc. v. Ahn, 133 Hawai’i 482, 494, 331 P.3d 460, 474 (2014) (citing Gannett Pac. Corp. v. Richardson, 59 Haw. 224, 228, 580 P.2d 49, 54 (1978)). According to the Hawaii Supreme Court, open courts are a fundamental component of the Hawai’i system of law: “Courts are established for the judicial administration of justice. They are open to the public . . . . The fact that they are open serves as a safeguard of the integrity of our courts.” Ahn, 133 Haw. at 495, 331 P.3d at 473 (citing State v. Hashimoto, 47 Haw. 185, 200, 389 P.2d 146, 155 (1963) (alterations in original)). Furthermore, “[t]he corrective influence of public attendance at trials for crime [i]s ... important to the liberty of the people.” Ahn, 133 Hawai’i at 495, 331 P.3d at 473 (citing Territory v. Scharsch, 25 Haw. 429, 436 (1920)); see also id. (“The words ‘public trial’ are self-explanatory . . . a public trial is a trial at which the public is free to attend.”).
Despite the presumptive openness of criminal proceedings, the Supreme Court of Hawaii has recognized the right of access to be qualified; although “courtroom proceedings shall be open to the public,” there may be “certain rare and compelling circumstances” requiring closed proceedings. Honolulu Advertiser, Inc. v. Takao, 59 Haw. 237, 238, 580 P.2d 58, 60 (1978).
In the civil context, the Hawaii Supreme Court has recognized that the presumption of openness also applies to probate proceedings and records. “[T]he reasons underlying openness in the criminal context . . . are equally compelling in the civil context . . . . We hold, then, that third parties have a right to file petitions challenging the closure of probate court proceedings or the sealing of court records under a principle of law supplementing the probate code.” In re Estate of Campbell, 106 Hawai’i 453, 462, 106 P.3d 1096, 1105 (2005).
In Idaho, access to civil and criminal court proceedings is broadly provided for in the state constitution. “Courts of justice shall be open to every person, and a speedy remedy afforded for every injury of person, property or character, and right and justice shall be administered without sale, denial, delay, or prejudice.” Idaho Const. art. I, § 18. In addition, Article I, Section 13 of the Idaho Constitution specifically ensures that criminal trials are to remain open: “In all criminal prosecutions, the party accused shall have the right to a speedy and public trial; to have the process of the court to compel the attendance of witnesses in his behalf, and to appear and defend in person and with counsel.”
There are no Idaho cases interpreting the “open court” provision of Article I, Section 18 of the Idaho Constitution other than to say that Idaho Code § 19-811 (which allows a criminal defendant to request that his preliminary hearing be closed) is not unconstitutional under Article I, Section 18 so long as the magistrate court issuing such closure order complies with the requirements of Press-Enterprise. See Cowles Publ’g, 118 Idaho at 761, 800 P.2d at 648. Instead, the few cases that do address access to court proceedings rely on the rights of a criminal defendant to a public trial under the Sixth Amendment to the U.S. Constitution or on the qualified right of the media and public to access court proceedings under the First Amendment to the U.S. Constitution. Id.; see also State v. Overline, 154 Idaho 214, 217 n.2, 296 P.3d 420, 423 n.2 (Id. App. Ct. 2013) (“The press and the public also possess, via the First Amendment, an enforceable right to an open and public trial proceeding, which can be foreclosed over their objection only in limited circumstances.”) (citing Press-Enterprise, 464 U.S. at 509–10).
In contrast, although Idaho courts have not explicitly recognized a constitutional right of access to court records, Idaho Courts Administrative Rule 32, promulgated by the Idaho Supreme Court and grounded in First Amendment principles, provides broad access rights and procedural protections for the public. State v. Allen, 156 Idaho 332, 336, 325 P.3d 673, 677 (Ct. App. 2014). That Rule provides: “The public has a right to examine and copy the judicial department’s declarations of law and public policy and to examine and copy the records of all proceedings open to the public.” I.CA.R. 32(a). See https://isc.idaho.gov/icar32.
Illinois law recognizes the constitutional presumption of access: “Judicial proceedings in the United States are open to the public – in criminal cases by constitutional command, and in civil cases by force of tradition.” A.P. v. M.E.E., 354 Ill. App. 3d 989, 993, 821 N.E.2d 1238, 1245, 290 Ill. Dec. 664, 671 (Ill. App. Ct. 1st Dist. 2004).
“In addition to the constitutional right of access, a parallel common-law right of access has developed.” People v. Pelo, 384 Ill. App. 3d 776, 780, 894 N.E.2d 415, 418-19, 323 Ill. Dec. 648, 651-52 (Ill. App. Ct. 4th Dist. 2008) (citation omitted). “The common law right of access to court records is essential to the proper functioning of a democracy; it ensures the public's ability to monitor the functioning of their courts and to form educated and knowledgeable opinions about their judicial system.” A.P. v. M.E.E., 354 Ill. App. 3d at 994, 821 N.E.2d at 1245, 290 Ill. Dec. at 671. See also In re Krynicki, 983 F.2d 74, 75 (7th Cir. 1992) (cited approvingly but for a different proposition by A.P. v. M.E.E., 354 Ill. App. 3d at 999, 821 N.E.2d at 1249, 290 Ill. Dec. at 675).
In addition to the constitutional and common law presumption of access to court proceedings, Illinois has provided for statutory access to public court records. Section 16 of the Clerk of Courts Act provides:
All records, dockets[,] and books required by law to be kept by [clerks of court] shall be deemed public records, and shall at all times be open to inspection without fee or reward, and all persons shall have free access for inspection and examination to such records, dockets[,] and books, and also to all papers on file in different clerks’ offices and shall have the right to take memoranda and abstracts thereto.
705 Ill. Comp. Stat. 105/16(6) (West 2019). The statute “symbolizes the legislature’s determination that the public interest is best served by increasing the public’s knowledge about what is transpiring inside the judicial process.” Newell v. Field Enters., Inc., 91 Ill. App. 3d 735, 748, 415 N.E.2d 434, 446, 47 Ill. Dec. 429, 441 (Ill. App. Ct. 1st Dist. 1980). But the statute does not abrogate the court’s “inherent power to control its files and to impound any part of a file in a particular case.” Deere & Co. v. Finley, 103 Ill. App. 3d 774, 776, 431 N.E.2d 1201, 1203, 59 Ill. Dec. 444, 446 (Ill. App. Ct. 1st Dist. 1981). If the interests of the party seeking to prevent disclosure are sufficiently weighty, they will defeat the presumption of access. In Deere & Co. v. Finley, for example, the court refused to allow access to court records because access would have revealed trade secrets of one of the parties. Id.
The right of access has been limited in certain circumstances by statute. Specifically, Illinois law allows the exclusion of certain spectators from sexual abuse trials where the victims are minors, though the law specifically exempts the media. 725 Ill. Comp. Stat. 5/115-11 (West 2019). Section 115-11 provides that “where the alleged victim of the offense is a minor under 18 years of age, the court may exclude from the proceedings while the victim is testifying, all persons, who, in the opinion of the court, do not have a direct interest in the case, except the media.” Id. (emphasis added). “[T]he media and its representatives must be permitted to attend, document, and report the proceeding.” People v. Revelo, 286 Ill. App. 3d 258, 265, 676 N.E.2d 263, 268, 221 Ill. Dec. 742, 747 (Ill. App. Ct. 2nd Dist. 1996); see also People v. Holveck, 141 Ill. 2d 84, 101, 565 N.E.2d 919, 926, 152 Ill. Dec. 237, 244 (1990) (“By allowing the media to attend, the judge preserved the defendant’s sixth amendment right to a public trial. The trial judge considered that the media presence is, in effect, the presence of the public.”).
The Indiana Constitution mandates that “[a]ll courts shall be open,” Ind. Const. art. I, § 12, reflecting “the ancient maxim of jurisprudence that every one is entitled to his day in court, and no one shall be condemned unheard.” State ex rel. Bd. of Commr’s v. Jamison, 42 N.E. 350, 351 (Ind. 1895). The Open Courts clause was intended to prohibit the demanding of fees or costs that influence legal proceedings. Square D. Co. v. O’Neal, 72 N.E.2d 654, 657 (Ind. 1947). Further, the provision “guarantees access to the courts to redress injuries to the extent the substantive law recognizes an actionable wrong.” Smith v. Ind. Dep’t of Correction, 883 N.E.2d 802, 807 (Ind. 2008).
The Open Courts clause thus limits the General Assembly. The legislature may not impose unreasonable regulations that limit the access to courts. Id. Such regulations must “be a rational means to achieve a legitimate legislative goal.” VanDam Estate v. Mid-America Sound, 25 N.E.3d 165, 170 (Ind. Ct. App. 2015). The Open Courts clause also requires the courts to “entertain” existing causes of action. Id.
The First Amendment to the United States Constitution, which is binding on the states, State ex re. Post-Tribune Pub. Co. v. Porter Superior Ct., 412 N.E.2d 748, 751 (Ind. 1980), also protects access to the courts:
“What this means in the context of trials is that the First Amendment guarantees of speech and press, standing alone, prohibit government from summarily closing courtroom doors which had long been open to the public at the time that Amendment was adopted. ‘For the First Amendment does not speak equivocally. . . . It must be taken as a command of the broadest scope that explicit language, read in the context of a liberty-loving society, will allow.’”
Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 576 (1980) (quoting Bridges v. California, 314 U.S. 252, 263 (1941)).
Indiana statutes also provide access to courts. For example, Indiana Code Section 5-14-2-2 provides that “[c]riminal proceedings are presumptively open to attendance by the general public.” Juvenile proceedings are open if they involve murder or felony charges. Id. § 31-32-6-3. Additionally, Indiana Code Section 5-14-3-1 et seq. and Indiana Administrative Rule 9 provides for public access to court records with certain limitations. Indiana’s Access to Public Records Act enables broad access to court records. Id. § 5-14-3-et seq.; see id. § 5-14-3-2(q) (defining “public agency” as “[a]ny board, commission, department, division, bureau, committee, agency, office, instrumentality, or authority, by whatever name designated, exercising any part of the . . . judicial . . . power of the state.” Relatedly, Indiana Administrative Rule 9(D) provides that all court records are publicly accessible except as provided in Rule 9(G).
The right of public access to Indiana courts serves important public policy purposes, implicating free speech under the First Amendment, fundamental fairness, and the integrity of the justice system. See Taylor v. State, 438 N.E. 2d 275, 279 (Ind. 1982) (citations omitted):
“The historical bases of our constitutional guarantees of free speech and press have been repeatedly and extensively explained; the structural role and societal functions of unfettered and informed public debate have been recently and thoroughly detailed. Often it has been recognized that the guarantees reflect and perpetuate the nation’s profound commitment to the proposition that the integrity of public proceedings is preserved by public access thereto; concomitantly, it has been reiterated that the educative aspects of public exposure to the judicial process serve only to enhance public confidence in the system. This Court recognized the significance of these considerations in Brown v. State, (1969) 252 Ind. 161, 172-3, 247 N.E.2d 76, 83:
“‘The right of the news media to fairly and accurately report the news; the right of the defendant to a fair trial before an impartial tribunal free of the influence of generated prejudice and inflamed passion in the community; and the right of the citizens to fully comprehend and analyze the portent and direction of the administration of our court system are elements necessary to the attainment of justice. If any one of the rights fall, the rest also will surely fall, and the term ‘justice’ will become hollow and meaningless in our constitutional system. Upon the judiciary devolves the duty to maintain, as well as human agency can, the fine and essential balance within and between such tripartite rights, for such a harmonious weighting is necessary to the preservation of ‘justice under the law.’ [Emphasis in original.]’”
Complementary considerations were examined by Chief Justice Burger in Richmond Newspapers, Inc. v. Commonwealth of Virginia.
Administrative Rule 9 has similar stated purposes, promoting openness while recognizing the importance of limits to public access: to “(a) Contribute to public safety; (b) Protect individual Due Process rights and privacy interests; (c) Minimize the risk of injury to individuals; (d) Promote accessibility to Court Records; (e) Promote governmental accountability and transparency; (f) Protect proprietary business information; and (g) Make the most effective use of Court and Clerk of Court staff. Ind. Admin. Rule 9(a).
Case law has interpreted Article I, Section 7 of the Iowa Constitution as affording an independent right for the public and press to attend court proceedings. Iowa Freedom of Info. Council v. Wifvat, 328 N.W.2d 920, 923 (Iowa 1983) (noting also that this right is not absolute). This access right “may give way under rare circumstances to other rights and interests such as a defendant’s right to a fair trial or the government’s interest in nondisclosure of sensitive information.” State v. Hightower, 376 N.W.2d 648, 650 (Iowa Ct. App. 1985).
The common law “has long favored open judicial proceedings.” Wifvat, 328 N.W.2d at 922. “Openness in court proceedings may improve the quality of testimony, induce unknown witnesses to come forward with relevant testimony, cause all trial participants to perform their duties more conscientiously, and generally give the public an opportunity to observe the judicial system.” Gannett Co. v. DePasquele, 443 U.S. 368, 383 (1979). The same advantages of public trial have been recognized by the Iowa Supreme Court. Wifvat, 328 N.W.2d at 923 (citing Gannett, 443 U.S. at 383; State v. Lawrence, 167 N.W.2d 912, 914 (Iowa 1969); State v. Rasmus, 90 N.W.2d 429, 430 (Iowa 1958)).
The independent state constitutional right of access in Iowa is not absolute: “It has generally been viewed as a right subject to the inherent power of the court to limit attendance as the conditions and circumstances reasonably require for preservation of order and decorum in the courtroom, and to reasonably protect the rights of the parties and witnesses.” See id. at 924 (quoting Lawrence, 167 N.W.2d at 914) (emphasis in original).
An Iowa statute declares that all judicial proceedings are public, “unless otherwise specially provided by statute or agreed to by the parties.” Iowa Code § 602.1601. In addition, Iowa court records are considered public records governed by the Iowa Open Records Act, which provides that “[e]very person shall have the right to examine and copy a public record and to publish or otherwise disseminate a public record or the information contained in a public record.” Iowa Code § 22.2 (2018). In Des Moines Register & Tribune Co. v. Osmundson, 248 N.W.2d 493, 501 (Iowa 1976), the court acknowledged that the public records statute applied to jury lists held by the clerk of court. See also Iowa Code § 22.1; In re Langholz, 887 N.W.2d 770, 777-78 (Iowa 2016) (applying tests of Iowa Open Records Act to determine propriety of sealing a court order as a public record). Iowa Code § 602.1614 permits the court to establish levels of access to records as needed to preserve confidentiality requirements imposed by other requirements of law.
Openness may not be impeded by judicial conduct that creates a hostile atmosphere for court staff, parties, witnesses, and the public. In re Inquiry Concerning Holien, 612 N.W.2d 789, 792 (Iowa 2000). In In re Inquiry Concerning Holien, the Iowa Supreme Court considered testimony that Judge Holien created such a hostile environment as to affect the “openness” of her court proceedings when deciding to remove her from the bench for judicial misconduct. Id. Judge Holien would often question members of the public who entered her courtroom while a hearing was in progress and on at least one occasion hung up a sign saying, “Do Not Enter Courtroom When Court is in Session.” Id. “Many witnesses testified there was an unwritten rule you did not enter her courtroom while a hearing was taking place.” Id. The Iowa Supreme Court considered this hostile environment to be a violation of Iowa rules requiring open courts. Id.
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.”) § 45-215–223. 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 originally 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. At one time, 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 included notice that, by statute, some kinds of records are not subject to disclosure. The statement also noted 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 gave notice that open court records included “case files and transcripts” and “[f]inal civil and criminal judgments.” Also noted was 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.”
In 2016, Administrative Order No. 156 was rescinded by Order No. 286. See http://www.kscourts.org/kansas-courts/supreme-court/administrative-orders/Admin-order-286.pdf. The reason for the rescission was that “Supreme Court Rule 1.03(h) addresses the Kansas Open Records Act.” This rule provides as follows:
“(h) Kansas Open Records Act Administration. This subsection governs the administration of the Kansas Open Records Act, K.S.A. 45-215, et seq. (KORA), for public records maintained by district and appellate courts.
1) Official Custodians.
(A) The public information director for the Kansas Supreme Court is the official custodian of public records maintained by the Kansas Supreme Court, Court of Appeals, and office of judicial administration, other than records described in subparagraph (B).
(B) The clerk of the Kansas appellate courts is the official custodian of public records maintained by the office of the clerk of the appellate courts.
(C) The chief judge of each judicial district must appoint a district court employee in each county to serve as the official custodian for that district court. The public information director for the Supreme Court will work with the official custodian in a district court to facilitate prompt responses to KORA requests.
(2) Procedure. The judicial administrator must establish procedures consistent with K.S.A. 45-220 to be followed to request access to and obtain copies of public records from a district or appellate court.
(3) Forms. The judicial administrator must develop forms to be used to make or respond to public records requests. The request forms must be available to the public on the Judicial Branch website at www.kscourts.org.
(A) The judicial administrator must establish fees that may be imposed to provide access to or furnish copies of public records maintained by the Kansas Supreme Court, Court of Appeals, office of judicial administration, and the office of the clerk of the appellate courts.
(B) The fees established under subparagraph (A) may include: (i) a fee for staff time required to provide access to or furnish copies of the records; and (ii) a fee for time expended by a professional employee—such as an attorney, accountant, computer specialist, or similar employee—to research issues related to a records request.
(C) If an official custodian of requested records determines help from a third party is required to respond to a records request—such as a request that requires reviewing or producing electronic records—the third party’s charges for that help may be imposed.
(D) A district court must prescribe reasonable fees for copying or certifying any paper or writ, as required by K.S.A. 28-170(a)3. A district court may impose the fees established by the judicial administrator if there is no local rule establishing fees for that district.”
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.”
Kentucky law recognizes both a constitutional and common law right to access court records and proceedings. Kentucky has a long tradition of ensuring free access to its court proceedings and court records. In 1968, Kentucky’s highest court recognized the vital importance of open court proceedings by stating:
The principle that justice can not survive behind walls of silence is so deeply imbedded in our Anglo-American judicial system as to give our people in today’s modern society a deep distrust of secret trials. One of the strongest demands of a democratic system is that the public should know what goes on in their courts. This demand can only be met by permitting them to be present in person and by permitting the press who have the facilities to properly inform them to be present upon their behalf.
Johnson v. Simpson, 433 S.W.2d 644, 646 (Ky. 1968) (citations omitted). Applying the “open courts” provision at Section 14 of Kentucky’s Constitution, the Kentucky Court of Appeals has held that “[t]he precept that courts shall be open embodies not only the idea that the courts shall be available to all citizens who seek redress for wrongs but that the courts shall be ‘public, open, no hiding place about them.’” Ashland Publ’g Co. v. Asbury, 612 S.W.2d 749, 752 (Ky. Ct. App. 1980).
In Louisiana, there is a constitutional right of access to judicial proceedings, both civil and criminal. Article 1, § 22 of the Louisiana Constitution states: “All courts shall be open.” See Huval v. State through Dep’t of Pub. Safety & Corr., 222 So.3d 665, 671 (La. 2017). As to criminal trials, article 1, § 16 of the Louisiana Constitution states: “Every person charged with a crime is presumed innocent until proven guilty and is entitled to a speedy, public, and impartial trial.” (Emphasis added.)
The Louisiana Supreme Court has commented in both criminal and civil cases on the “strong societal interest in public trials.” See State v. Birdsong, 422 So.2d 1135 (La. 1982) (criminal case); Copeland v. Copeland, 930 So.2d 940 (La. 2006) (civil case). See the relevant sections below on criminal and civil proceedings for more detail.
There is also a constitutional right of access to public documents. Article 12, § 3 of the Louisiana Constitution states: “No person shall be denied the right to . . . examine public documents, except in cases established by law.” This right is implemented by the Louisiana Public Records Act, La. R.S. 44:1 et seq.
Louisiana is a civil-law jurisdiction; courts typically do not discuss “common-law” rights.
Louisiana Supreme Court rules may be found on the Louisiana Supreme Court’s website at: http://www.lasc.org/rules/supreme.asp.
There are Uniform Rules but also “local” rules for each of the five Circuit Courts of Appeal. Links to all may be found on the Louisiana Supreme Court’s website at: http://www.lasc.org/rules/Appellate.asp. Recent efforts to standardize the District Court Rules have created a confusing mix of mostly-generic uniform rules and numerous “appendices,” each of which lists one rule as it appears in each of the 40+ judicial districts. More useful for the practitioner, or the journalist, would be a document that would contain all rules for a single district. No such page exists on the Louisiana Supreme Court’s website. Rather, this link: http://www.lasc.org/rules/DistrictCourt.asp gives separate links to the Uniform Rules (“Rules in PDF Format”), to pages containing all appendices for each individual judicial district (“District by District Appendices”), and to pages containing each judicial district’s version of one appendix (“List of Appendices”).
The Louisiana Code of Civil Procedure and the Louisiana Code of Criminal Procedure provide pre-trial and trial procedures for the District Courts.
The constitutional right of access to public documents (La. Const. art. 12, § 3) is implemented by the Louisiana Public Records Act, La, R.S. 44:1 et seq. Under the Public Records Act, “any person” may make a public records request. La. R.S. 44:32. “Any person who has been denied the right to inspect or copy a record” may “institute proceedings for the issuance of a writ of mandamus, injunctive or declaratory relief.” La. R.S. 44:35.
Courts are covered by the Public Records Act. See La. R.S. 44:1(A)(1), defining “public body” as including any branch . . . of state . . . government,” and article 2, § 1 of the Louisiana Constitution: “The powers of government of the state are divided into three separate branches. legislative, executive, and judicial.”
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).
Massachusetts courts have recognized a First Amendment and common law right of access to criminal proceedings, and a common law right of access to civil proceedings. See, e.g., Kirk v. Commonwealth, 944 N.E.2d 135, 137 (Mass. 2011) (recognizing a longstanding right to attend civil trials under Massachusetts common law); Commonwealth v. Martin, 629 N.E.2d 297, 301 (Mass. 1994) (citing Globe Newspaper Co. v. Super. Ct., 457 U.S. 596, 603 (1982)) (recognizing First Amendment right of access to criminal trials); Globe Newspaper Co. v. Commonwealth, 556 N.E.2d 356, 360 (Mass. 1990) (“The tradition in the Commonwealth is that courts are open to the public. In the absence of a statute, a rule of court, or a principle expressed in an appellate opinion authorizing or directing a courtroom to be closed, the expectation is that courtrooms will be open.”).
In addition, Massachusetts courts have recognized a broad right of access to civil and criminal court records under either the common law or the First Amendment. See, e.g., Republican Co. v. Appeals Ct., 812 N.E.2d 887, 892 n.8 (Mass. 2004) (citing Globe Newspaper Co. v. Pokaski, 868 F.2d 497 (1st Cir. 1989)); New England Internet Cafe, LLC v. Super. Ct., 966 N.E.2d 797, 803 (Mass. 2012) (“[M]ost judicial records—including transcripts, evidence, memoranda, court orders and, significantly, material relating to the issuance of search warrants (after the warrant is returned)—are presumptively public documents [under the common law].”) (citations and quotation omitted).
Because Massachusetts’s common law right of access covers a broad range of proceedings and records, courts often recognize a right of access based on the common law without reaching the First Amendment analysis. See, e.g., 966 N.E.2d at 808 n.13 (explaining that where there is a common law or statutory right of access, courts need not reach First Amendment analysis); Boston Herald, Inc. v. Super. Ct., 658 N.E.2d 152, 155–56 & n.7 (Mass. 1995). When courts do reach the question of whether a First Amendment presumption of access applies, Massachusetts courts apply the Supreme Court’s “logic and experience test,” also called the “Press-Enterprise test.” See, e.g., Eagle-Tribune Pub. Co. v. Clerk-Magistrate, 863 N.E.2d 517, 523 (Mass. 2007) (citing Press–Enterprise II, 478 U.S. 1, 8 (1986)). The test considers (1) “whether the place and process have historically been open to the press and general public,” and (2) “whether public access plays a significant positive role in the functioning of the particular process in question.” Press-Enterprise II, 478 U.S. at 8.
Where there is a presumption of openness to a certain type of judicial proceeding, Massachusetts courts apply the Supreme Court’s Waller factors to determine whether closure of the proceeding is appropriate: “ the party seeking to close the hearing must advance an overriding interest that is likely to be prejudiced,  the closure must be no broader than necessary to protect that interest,  the trial court must consider reasonable alternatives to closing the proceeding, and  it must make findings adequate to support the closure.” See, e.g., Commonwealth v. Martin, 629 N.E.2d 297, 302 (Mass. 1994) (quoting Waller v. Georgia, 467 U.S. 39, 48 (1984)). The court’s findings (factor four) “must be particularized and supported by the record.” Boston Herald, Inc. v. Super. Ct., 658 N.E.2d 152, 155 (Mass. 1995) (citations omitted).
In Massachusetts, each court has its own rules, though some rules are uniform to the different levels. The majority of the Massachusetts Trial Court Rules are uniform to the entire system, with the specific courts adding additional rules. Trial Court Rule VIII encompasses the Uniform Rules on Impoundment Procedure, which govern the impoundment of otherwise public judicial records, and also specify the processes for individuals wishing to challenge or appeal impoundment orders. Supreme Judicial Court Rule 1:19 governs the recording and transmitting of proceedings in Massachusetts courts. The Rule establishes a presumption that news media may record and transmit court proceedings, subject to some limitations.
The Minnesota Supreme Court has recognized a First Amendment right of press and public access to criminal court proceedings. Minneapolis Star & Tribune Co. v. Kammeyer, 341 N.W.2d 550, 554–55 (Minn. 1983) (acknowledging that based on Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555 (1980), the press and the public have access to criminal trials); see also Austin Daily Herald v. Mork, 507 N.W.2d 854, 856 (Minn. Ct. App. 1993) (“There is a constitutional presumption of access to criminal trials.”). This First Amendment right of access also extends to criminal pretrial proceedings. Kammeyer, 341 N.W.2d at 556.
Although there are no Minnesota appellate decisions addressing the constitutional right of access to civil court proceedings, in Minneapolis Star & Tribune Co. v. Schumacher, 392 N.W.2d 197, 202–03 (Minn. 1986), the Minnesota Supreme Court recognized a First Amendment and common law presumption in favor of granting the public the right to inspect civil court files and records. This common law presumption of access has been characterized as “strong.” Id. at 203. Minnesota state district courts have also applied a common law right of access to civil proceedings and records. See, e.g., Williams v. Heins Mills & Olson PLC, 36 Media L. Rep. 1924, 1926 (Minn. Dist. Ct. Hennepin County 2008); Friederichs v. Kinney & Lange, 22 Media L. Rep. 2530, 2531–32 (Minn. Dist. Ct. Hennepin County 1994). At the federal level, the District of Minnesota is part of the Eighth Circuit, which recognizes a common law right of access to civil files and proceedings. Webster Groves Sch. Dist. v. Pulitzer Publ’g Co., 898 F.2d 1371, 1376 (8th Cir. 1990); In re Guidant Corp. Implantable Defribillators Products Liability Litig., 245 F.R.D. 632, 636 (D. Minn. 2007) (citing Webster Groves Sch. Dist., 898 F.2d at 1376).
Public access to various court proceedings in Minnesota is often governed by the state procedural rules and statutes. See, e.g., Minn. Stat. § 260B.163, subd. 1(c) (stating that the court must exclude the public from juvenile delinquency hearings except in certain limited circumstances). In addition, the Minnesota Supreme Court has adopted The Rules of Public Access to Records of the Judicial Branch, which provide that as a general policy, the “[r]ecords of all courts and court administrators … are presumed to be open to any member of the public for inspection or copying at all times during the regular office hours.” Minn. R. Pub. Access Rec’ds. Jud. Br. 2. “Records” are defined as “any recorded information that is collected, created, received, maintained or disseminated by a court or court administrator.” Id. 3, subd. 5.
Under Rule 4, the public does not have access to certain records including, but not limited to, domestic abuse records and other court records that have not been admitted into evidence but are simply intended to assist the court in (a) determining an individual’s need for counseling, (b) assigning an appropriate sentence, or (c) creating a psychological evaluation of an individual, etc. Id. 4, subd. 1. Rules 7 and 8 dictate the procedure for requesting access, which is straightforward and does not require the payment of a fee unless otherwise established by statute; however, when copies are requested, the custodian may charge a copy fee. Id. 8; subd. 6.
Minnesota Rules of Civil Procedure 43.01 (“In all trials the testimony of witnesses shall be taken orally in open court”) and 77.02 (“All trials upon the merits shall be conducted in open court and so far as convenient in a regular courtroom”) provide for public access to civil court proceedings. Minnesota Rules of Criminal Procedure 25.01 and 26.03 state the general right of public access to pretrial and trial proceedings and provide specific procedures for limiting that access.
The Mississippi Supreme Court has stated that “[f]reedom of the press and speech are fundamental rights guaranteed by the First Amendment,” and that “this constitutional right of speech and the press is satisfied by allowing the press to attend the trial and report what they have heard.” Associated Press v. Bost, 656 So. 2d 113, 117 (Miss. 1995). However, the court continued, “there is no constitutional right to have testimony recorded and broadcast.” Id.
The Mississippi Supreme Court has also stated that there is a presumption of openness to the criminal process, and that this presumption includes the pretrial setting. See Miss. Publishers Corp. v. Coleman, 515 So. 2d 1163, 1165 (Miss. 1987). Although the court stated that the right to a public trial “belongs to the accused and no one else,” id., the U.S. Supreme Court has held that the public has a First Amendment right to attend criminal trials. See, e.g., Press-Enter. Co. v. Superior Court, 464 U.S. 501 (1984); Globe Newspaper Co. v. Superior Court, 457 U.S. 596 (1982); Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555 (1980).
The Mississippi Supreme Court has stated that there is no constitutional right to access public records. See Miss. Publishers Corp. v. Coleman, 515 So. 2d 1163, 1167 (Miss. 1987). Rather, the court noted, the right to access such records “is a right derived from the common law and from applicable statues.” Id. Where common law rights clash with federal constitutional rights, “under the supremacy clause the former must yield.” Id.
However, a party seeking to view a public record does not have to maintain an interest in the record. Logan v. Mississippi Abstract Co., 190 Miss. 479, 200 So. 716, 719 (1941) (“A mere reading of these granted powers shows clearly that the appellee has the right to
inspect and make copies of all the land records in the entire state of Mississippi and to compile independent abstracts for future use. Denial of that right by counties would nullify the explicit powers granted it by the state.”).
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. art. 3, § 26. This is echoed in the Rules of Criminal Procedure of the state, which observe that all proceedings “shall be open to the public unless the court finds, upon application of the defendant, that an open proceeding presents a danger to the defendant's right to a fair trial by an impartial jury.” MRCrP 10.3. Citing section 26 of the Mississippi Constitution, MRCrP Rule 10.3 observes that “the court may exclude from the courtroom all persons except those necessary in the conduct of the trial.” Id.
Montana's populist roots promoted early adoption of statutory open meetings and open records mandates. Montana's first open records law was passed six years after statehood in 1895 and guaranteed:
Every citizen has a right to inspect and to take a copy of any public writings of this state … [and] [e]very public officer having the custody of a public writing … is bound to give [citizens] on demand a certified copy of it.
Mont. Code Ann. § 2-6-102. (emphasis added).
This statutory provision was replaced in 2015 by Mont. Code Ann. § 2-6-1006 which similarly requires government records to be open for public inspection upon demand.
In 1963, the legislature statutorily required open governmental meetings. The legislative purpose of the 1963 law tracks the populist philosophy which serves as its underpinning:
It is the intent of this part that actions and deliberations of all public agencies [in Montana] shall be conducted openly. The people of the state do not wish to abdicate their sovereignty to the agencies which serve them. Towards these ends, the provisions of the part shall be liberally construed.
Mont. Code Ann. § 2-3-201.
The "part" referred to above requires that all meetings of governmental bodies "supported in whole or part by public funds or expending public funds" must be open to the public. This statutory provision is among the broadest in the nation with respect to the deliberative bodies it touches.
Finally, when the 19th century Montana Constitution was re-written in 1972, this statutory philosophy was raised to constitutional levels. The 1972 Constitution, Article II, § 9 reads:
No person shall be deprived of the right to examine documents or to observe the deliberations of all public bodies or agencies of state government and its subdivisions, except in cases in which the demand of individual privacy clearly exceeds the merits of public disclosure.
Since the adoption of this provision the Montana Supreme Court has fairly consistently enforced this right holding that all records and meetings are presumed to be open and the custodian has an “affirmative duty” to permit access unless the demands of individual privacy clearly exceed the merits of public disclosure. Great Falls Tribune v. Montana Pub. Serv. Comm'n, 2003 MT 359, ¶ 13, 319 Mont. 38, 43, 82 P.3d 876, 879
While the Court has been vigilant in enforcing the Constitutional guarantee for executive branch state and local agencies, it has declined to open its conferences to the public. See In re Selection of A Fifth Member to Montana Districting. 1999 WL 608661 (Mont. Aug. 3, 1999). However, it has recognized that court records are subject to the open meetings and records guarantees.
Article I, section 13 of the Nebraska Constitution provides in part: “All courts shall be open. . . .” Nebraska law states: “All judicial proceedings of all courts established in this state shall be open to the attendance of the public unless otherwise specifically provided by statute.” Neb. Rev. Stat. § 24-1001 (Reissue 2016). In addition, Nebraska’s Security, Privacy, and Dissemination of Criminal History Information Act provides, in part, that “court records of any judicial proceeding” “shall be considered public record for purposes of dissemination.” Neb. Rev. Stat § 29-3521 (Reissue 2016).
The Nebraska Supreme Court has acknowledged the common law presumption of access to judicial records. State v. Cribbs, 237 Neb. 947, 469 N.W.2d 108 (1991) (affirming trial court release to homicide victim’s relatives of psychiatric reports and mental evaluations received in evidence at annual review of status of person acquitted by reason of insanity). The Nebraska Supreme Court requires lower courts to “weigh the conflicting rights of the public and the defendant and to make explicit in the record the factors used in the decision to release evidence from judicial proceedings” under the common-law presumption of access. Id. at 952, 469 N.W.2d at 112.
The Nebraska Public Records Act, Neb. Rev. Stat. § 84-712, et seq. (Reissue 2014), applies to courts. State ex rel. Griggs v. Meeke, 19 Neb. 106, 26 N.W. 620 (1886); State ex rel. Newby v. Elsworth, 61 Neb. 444, 85 N.W. 439 (1901); see also State ex rel. Veskrna v. Steel, 296 Neb. 581, 894 N.W.2d 788 (2017) (State public records statutes do not violate separation of powers principles when applied to records concerning judicial branch education). Under the Public Records Act, records “of or belonging to” the state or its constituent parts are public records unless a statute makes a record confidential, or a given record falls within one or more of 20 exceptions enumerated in the Public Records Act. A record which could otherwise be withheld under the Public Records Act must be deemed public if it has been “publicly disclosed in an open court, open administrative proceeding, or open meeting or disclosed by a public entity pursuant to its duties. . . .” Neb. Rev. Stat. § 84 712.05 (Reissue 2014).
The Nebraska Supreme Court has promulgated “Guidelines for use by Nebraska Courts in Determining When and Under What Conditions a Hearing Before Such Court May be Closed in Whole or in Part to the Public” (hereinafter “Nebraska Guidelines”). Neb. S. Ct. R. § 6-201 et seq. The Guidelines are consistent with and generally incorporate the First Amendment principles set out in Press-Enterprise I and II.
Effective March 1, 2017, the Nebraska Supreme Court has promulgated rules which allow expanded news media coverage of trial court proceedings. Neb. S. Ct. R. § 6-2001 through 6-2005. “‘Expanded news media coverage’ includes broadcasting, recording, photographing, and live electronic reporting of judicial proceedings by the news media for gathering and disseminating news in any medium.” Id. at § 6-2002(A).
As a threshold matter, both the United States Constitution and the New Mexico Constitution guarantee a criminal defendant the right to a public trial. See U.S. Const. amend. VI; N.M. Const. art. II, § 14. This guarantee is reinforced by state rules that set forth specific carve-outs to the presumption of both courtroom and record access for criminal matters. In accordance with the common law, New Mexico statutes and rules likewise extend the presumption to civil proceedings. Thomas v. Thomas, 1999-NMCA-135, ¶ 28, 128 N.M. 177, 185, 991 P.2d 7, 15 (“[t]he favored public policy expressed in the rule is also a principle of common law.”); see State ex rel. Bingaman v. Brennan, 1982-NMSC-059, ¶ 10, 98 N.M. 109, 111, 645 P.2d 982, 984 (“The right to inspect and copy judicial records was recognized at common law.”).
Under common law, whether the general public might be excluded from a trial was a matter within the discretion of the trial court, State v. Velasquez, 1966-NMSC-037, ¶ 10, 76 N.M. 49, 52, 412 P.2d 4, 6, and the right of media to inspect judicial records did not extend beyond that generally available to the public. Bingaman, 1982-NMSC-059, ¶ 13, 98 N.M. at 111, 645 P.2d at 984. New Mexico then adopted the Tenth Circuit’s holding in United States v. Hickey, 767 F.2d 705 (10th Cir. 1985) that there was a common law right to inspect and copy judicial records, and explained that the purpose behind the right is to aid in preserving the integrity of the judicial process. See Thomas, 1999-NMCA-135, ¶ 1. The New Mexico court found that, “[a]lthough there are exceptions to both the rule and the common law right, such as when competing interests outweigh the need for access to court files, we see no such reason in this case for the court to have diverged from the standard policy of allowing public access to court files.” Id. ¶ 28; see also Bingaman v. Brennan, 1982-NMSC-059, ¶ 10, 98 N.M. at 111, 645 P.2d at 984.
The common law reflecting a presumption of public access to both courtrooms and court records has now been incorporated into the following Rules:
- Rule 1-104 NMRA: Courtroom Closure (Rules of Civil Procedure for the Magistrate Courts)
- Rule 2-114 NMRA: Courtroom Closure (Rules of Civil Procedure for the Magistrate Courts)
- Rule 3-114 NMRA: Courtroom Closure (Rules of Civil Procedure for the Metropolitan Courts)
- Rule 5-124 NMRA: Courtroom Closure (Rules of Criminal Procedure for the District Courts)
- Rule 6-116 NMRA: Courtroom Closure (Rules of Criminal Procedure for the Magistrate Courts)
- Rule 7-115 NMRA: Courtroom Closure (Rules of Criminal Procedure for the Metropolitan Courts)
- Rule 8-114 NMRA: Courtroom Closure (Rules of Procedure for the Municipal Courts)
- Rule 12-322 NMRA: Courtroom Closure (Rules of Appellate Procedure)
- Rule 1-079 NMRA: Public Inspection and Sealing of Court Records (Rules of Civil Procedure for the District Courts)
- Rule 1-079.1 NMRA: Public Inspection and Sealing of Court Records; Guardianship and Conservatorship Proceedings (Rules of Civil Procedure for the District Courts)
- Rule 2-112 NMRA: Public Inspection and Sealing of Court Records (Rules of Civil Procedure for the Magistrate Courts)
- Rule 3-112 NMRA: Public Inspection and Sealing of Court Records (Rules of Civil Procedure for the Metropolitan Courts)
- Rule 5-123 NMRA: Public Inspection and Sealing of Court Records (Rules of Criminal Procedure for the District Courts)
- Rule 6-114 NMRA: Public Inspection and Sealing of Court Records (Rules of Criminal Procedure for the Magistrate Courts)
- Rule 7-113 NMRA: Public Inspection and Sealing of Court Records (Rules of Criminal Procedure for the Metropolitan Courts)
- Rule 8-112 NMRA: Public Inspection and Sealing of Court Records (Rules of Procedure for the Municipal Courts)
- Rule 10-166 NMRA: Public Inspection and Sealing of Court Records (Children’s Court Rules and Forms)
- Rule 12-314 NMRA: Public Inspection and Sealing of Court Records (Rules of Appellate Procedure)
The Supreme Court of New Mexico has jealously attempted to guard any perceived legislative encroachment on court “procedures.” The Supreme Court Rules in New Mexico take on more significance than legislative statutes for purposes of many “open court” issues. In Ammerman v. Hubbard Broad., Inc., the New Mexico Supreme Court held rules of privilege and procedure to be the exclusive domain of the judiciary. 1976-NMSC-031, ¶ 3, 89 N.M. 307, 309, 551 P.2d 1354, 1356. As such, the Court held those statutory privileges created by the legislature to be unconstitutional. Id. Nevertheless, as the majority of the Rules discussed were promulgated in 2016, their reach and impact remain relatively untested.
New Mexico courts have found some First Amendment protection in the dissemination of discovered material, subject to the limits of Federal Rule of Civil Procedure 26(c). 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. In Pincheira v. Allstate Ins. Co., 2008-NMSC-049, ¶ 1, 144 N.M. 601, 190 P.3d 322, the court noted that while the right to disseminate discovered material receives “some [First Amendment] protection, judicial limitations on a party's ability to disseminate information discovered in advance of trial implicates the First Amendment rights of the restricted party to a far lesser extent than would restraints on dissemination of information in a different context” (internal citations omitted).
In a civil right of access context, the North Carolina Supreme Court has applied by analogy U.S. Supreme Court precedent on the First Amendment presumption of access in criminal cases—i.e., a heightened standard of scrutiny in favor of disclosure absent a compelling public interest. See Virmani v. Presbyterian Health Servs. Corp., 350 N.C. 449, 481-82 (1999).
The North Carolina Constitution confers a qualified right of access to civil court proceedings and records. See N.C. Const. Art. I, §18; Virmani, 350 N.C. at 476-77:
[T]he open courts provision of Article I, Section 18 of the North Carolina Constitution guarantees a qualified right on the part of the public to attend civil court proceedings . . . [which is] subject to reasonable limitations imposed in the interest of the fair administration of justice or for other compelling public purposes. Thus, although the public has a qualified right of access to civil court proceedings and records, the trial court may limit this right when there is a compelling countervailing public interest and closure of the court proceedings or sealing of documents is required to protect such countervailing public interests. In performing this analysis, the trial court must consider alternatives to closure. Unless such an overriding interest exists, the civil court proceedings and records will be open to the public. Where the trial court closes proceedings or seals records and documents, it must make findings of fact which are specific enough to allow appellate review to determine whether the proceedings or records were required to be open to the public by virtue of the constitutional presumption of access. (emphasis in original) (internal citations omitted).
The North Carolina Court of Appeals has said that the "open courts provision" of the state constitution "creates a strong presumption that civil court proceedings be kept open to the public and that ‘the occasion for closing presumptively open proceedings and sealing court records should be exceedingly rare.’” DTH Publ'g Corp. v. University of North Carolina at Chapel Hill, 496 S.E.2d 8, 13 (1998) (internal citation omitted).
The North Carolina Supreme Court has likewise suggested that the state constitution confers a qualified right of access in criminal cases. See State v. Lemons, 348 N.C. 335, 349-50 (1998) (citing, inter alia, Globe Newspaper Co. v. Superior Ct. for Norfolk County, 457 U.S. 596, 606 (1982); Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 581 n.18 (1980)), vac'd on other grounds by Lemons v. North Carolina, 527 U.S. 1018 (1999).
The text of the North Carolina Constitution is available at http://www.ncga.state.nc.us/legislation/constitution/ncconstitution.html.
In Virmani, the North Carolina Supreme Court considered a newspaper's argument for a qualified common law right of access to public records and documents. The Court suggested that U.S. Supreme Court jurisprudence on the common law right of access did not recognize a federal common law right of access to state courts any broader than the right of access already conferred by the First Amendment of the U.S. Constitution. See 350 N.C. at 470-71.
Under North Carolina common law, "the decision to grant or deny access is 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." In re Investigation into Death of Cooper, 683 S.E.2d 418, 425 (N.C. App. 2009) (internal quotations admitted). Further, the North Carolina General Assembly may supersede the common law right of access by statute. See id.; and see, e.g., N.C.G.S. 132.1 et seq.
North Carolina law does recognize a common law right to inspect public records, see News & Observer Publ'g Co. v. State ex rel. Starling, 312 N.C. 276, 280 (1984), but the right as to certain documents is limited by statute.
The public's right of access is set forth in N.C.G.S. 7A-109(a), "which specifically grants the public the right to inspect court records in civil and criminal proceedings." Virmani v. Presbyterian Health Servs. Corp., 350 N.C. 449, 463 (1999). See also N.C.G.S. 7A-190; 7A-191.
Access to public records is generally governed by Public Records Act, N.C.G.S. 132, which courts construe liberally in favor of access. Without a “clear statutory exemption or exception, documents falling within the definition of ‘public records’ in the Public Records Law must be made available for public inspection.” News & Observer Publ’g Co. v. Poole, 330 N.C. 465, 486 (1992). The definition of “public records” is codified at N.C.G.S. §132-1. The Public Records Law itself enumerates some exceptions, and other statutes may exempt certain records as well (See, e.g., N.C.G.S. §131E-95, which specifically protects medical review committee records from discovery or introduction into evidence in certain civil proceedings).
The North Carolina Supreme Court has held that “[n]otwithstanding the broad scope of the public records statute and the specific grant of authority in N.C.G.S. § 7A-109(a), our trial courts always retain the necessary inherent power granted them by Article IV, Section 1 of the North Carolina Constitution to control their proceedings and records in order in ensure that each side has a fair and impartial trial. … Thus, even though court records may generally be public records under N.C.G.S. § 132-1, a trial court may, in the proper circumstances, shield portions of court proceedings and records from the public.” Virmani, 350 N.C. at 463 (internal citations omitted). A trial court may exercise this power when “its use is required in the interest of the proper and fair administration of justice or where, for reasons of public policy, the openness ordinarily required of our government will be more harmful than beneficial.” Id.
N.C.G.S. 15A-1034(a) provides that "[t]he presiding judge may impose reasonable limitations on access to the courtroom when necessary to ensure the orderliness of courtroom proceedings or the safety of persons present." To search the North Carolina General Statutes, visit http://www.ncga.state.nc.us/gascripts/Statutes/Statutes.asp.
For an overview of North Carolina’s Public Records Act and exceptions thereto, see the Open Government Guide chapter for North Carolina, available at https://www.rcfp.org/open-government-guide/north-carolina/.
There is no special privilege or status for the news media when it comes to open judicial proceedings. As held in Dickinson Newspapers, Inc. v. Jorgensen, 338 N.W.2d 72 (N.D. 1983), the news media’s right to be present at a judicial proceeding stems from being a member of the public, and therefore it may freely report on whatever occurs in open court. This right to freely report on court proceedings is not a special privilege, but a right common to all members of the public.
The Ohio Supreme Court generally recognizes a First Amendment right for the press and public to attend court proceedings. State ex rel. The Repository v. Unger, 504 N.E.2d 37, 40 (Ohio 1986). “Freedom of the press includes the right to ‘gather, write and publish the news’ including events occurring in open court.” Id. (quoting State ex rel. Dayton Newspapers, Inc. v. Phillips, 351 N.E.2d 127, 134 (Ohio 1976)). The Ohio Supreme Court has adopted the Press-Enterprise II “experience and logic” test, which “accurately defines the limits of constitutionally protected access to all court proceedings.” In re T.R., 556 N.E.2d 439, 446 (Ohio 1990). In applying Press-Enterprise II, the Ohio Supreme Court had held that “the public’s qualified right of access attaches to those hearings and proceedings in all courts which have historically been open to the public, and in which public access plays a significant positive role.” Id.
The Ohio Supreme Court also recognizes that the Ohio Constitution includes a right to a public trial. See State ex rel. The Repository v. Unger, 504 N.E.2d 37, 39 (Ohio 1986). This right is embodied in the “open courts” provision of the Ohio Constitution, Section 16, Article I, which provides: “All courts shall be open, and every person, for an injury done him in his land, goods, person, or reputation, shall have remedy by due course of law, and shall have justice administered without denial or delay.” In the context of criminal trials, the accused’s constitutional right to a public trial also supports the right of public access to the trial, including pre-trial proceedings. See In re T.R., 556 N.E.2d at 448; Unger, 504 N.E.2d at 40. “The underlying premise of a public trial is that the public is a party to all criminal proceedings. Criminal cases are prosecuted in the name of the people because crimes are public wrongs affecting all members of society.” Unger, 504 N.E.2d at 39. Media organizations have argued that the Ohio Constitution creates a qualified right of access to all court proceedings and creates a broader right than the First Amendment. See In re T.R., 556 N.E.2d at 446–47. However, certain court proceedings in Ohio, including grand jury hearings, petit jury deliberations, and conferences in chambers, have never been open to the public. Id. at 447. Therefore, the Ohio Supreme Court has ruled that the Ohio Constitution creates no absolute right of public access to all court proceedings. Id. In so holding, the Court found that the Ohio Constitution creates no greater right of access to court proceedings than that provided by the First Amendment of the United States Constitution. Id. at 448.
The Ohio Supreme Court recognizes the common-law right of public access to court records. See State ex rel. Scripps Howard Broad. Co. v. Cuyahoga Cty. Court of Common Pleas, 652 N.E.2d 179, 183 (Ohio 1995). Rule 45 of the Rules of Superintendence for the Courts of Ohio embodies the common-law presumption of access. Rule 45 provides: “Court records are presumed open to public access.” Sup. R. 45(A). Rule 44 defines “court record” as “both a case document and an administrative document, regardless of physical form or characteristic, manner of creation, or method of storage.” Sup.R. 44(B). As for court proceedings, while Ohio courts cite the First Amendment and the Ohio Constitution as the basis for public access, they also recognize that certain proceedings have “historically been open to the public.” See, e.g., In re T.R., 556 N.E.2d at 446; see also State ex rel. Beacon Journal Publ’g Co. v. Radel, 611 N.E.2d 520, 523 (Ohio Ct. App. 1993) (“The foundations of freedom necessitate open court proceedings . . . . Justice thrives in the open sunlight of day. If we deny to the public and press access to courts of justice, we foster a system of jurisprudence heretofore unknown in the history of Ohio”).
Rules 44 through 47 of the Rules of Superintendence for the Courts of Ohio provide the requirements regarding the circumstances in which court records can be withheld from the media and the public. Sup.R 44(B) defines “court record” as “both a case document and an administrative document, regardless of physical form or characteristic, manner of creation, or method of storage.” Sup.R. 45(A) provides that “[c]ourt records are presumed open to public access.” Sup.R. 45(B) provides that the court clerk shall promptly acknowledge a request for access to court records and shall respond to the request within a reasonable amount of time.
Anyone seeking to restrict public access must file a written motion with the court asking the court to restrict access to information or, if necessary, the entire document. See Sup.R. 45(E)(1). The court may also restrict public access to the case document on its own order. Id. The court must give notice of the motion or order to all parties in the case and may schedule a hearing on the motion. Id. Before restricting public access to a case document, the court must find by clear and convincing evidence that “the presumption of allowing public access is outweighed by a higher interest” after considering the following factors: (a) whether public policy is served by restricting public access; (b) whether any state, federal, or common law exempts the document or information from public access; (c) whether factors that support restriction of public access exist, including risk of injury to persons, individual privacy rights and interests, proprietary business information, public safety, and fairness of the adjudicatory process. See Sup.R. 45(E)(2). In restricting access to a case document, the court must use the least restrictive means available, including but not limited to: redacting the information rather than limiting access to the entire document; restricting remote access to the document while maintaining direct access (as defined in Sup.R. 44); restricting access only for a specific period of time; using a generic title or description for the document; or using initials or other identifiers for the parties’ proper names. See Sup.R. 45(E)(3).
The news media and any member of the public may seek, by written motion, access to a case document that has been restricted. See Sup.R. 45(F)(1). The court will notify all parties that such a motion has been filed and may schedule a hearing on the motion. Id. The court may permit public access if it finds by clear and convincing evidence that the presumption of allowing public access is no longer outweighed by a higher interest. See Sup.R. 45(F)(2). The court will consider whether the original reason for restricting access no longer exists or is no longer applicable and whether any new circumstances have arisen which would require the restriction of public access. Id. Anyone who wants to appeal the trial court’s ruling regarding restricting public access to case documents may pursue an action in mandamus. See Sup.R. 47(B). In addition, Rule 12 of the Rules of Superintendence for the Courts of Ohio governs the conditions under which broadcasting and photographing court proceedings will be allowed. See Sup.R. 12.
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.
In Oregon, First Amendment access rights are buttressed by Article I, section 10 of the Oregon Constitution, which provides, “No court shall be secret, but justice shall be administered, openly and without purchase, completely and without delay . . . .” This provision has been interpreted not to provide an individual, waivable right, but instead to prescribe the functions of government. See Oregonian Pub. v. O’Leary, 303 Or. 297, 301-02, 736 P.2d 173 (1987). The protection is not the same as that provided by the Sixth Amendment of the U.S. Constitution. See State ex rel Oregonian Pub. Co. v. Deiz, 289 Or. 277, 282, 613 P.2d 23 (1980). Article I, section 10 “does not recognize distinctions between various kinds of judicial proceedings; it applies to all.” Id. at 283. “In order to be constitutional, a proceeding must either not be secret or not ‘administer justice’ within the meaning of section 10.” O’Leary, 303 Or. at 302.
In addition, Oregon courts have adopted Uniform Trial Court Rules (UTCR) that apply to all Oregon trial courts. UTCR 3.180 expressly provides for camera access to courtrooms, with various exceptions. UTCR 3.180 (available at https://www.courts.oregon.gov/rules/UTCR/2017_UTCR_rules-sans-preface-including-out-of-cycle-amendments.pdf). The rule provides a presumption of access: “Upon request or on the court’s own motion, after notice to all parties, public access coverage shall be allowed in any courtroom, except as provided under this rule.” UTCR. 3.180 (1) (emphasis supplied). A judge may limit this access only after making findings of fact on the record and determining that the presence of equipment would interfere with the parties’ rights to a fair trial, or that the cost or increased burden would interfere with the aims of justice. UTCR 3.180(3). Other portions of the rule allow the court to limit placement and function of cameras and to limit the equipment to pool cameras. UTCR 3.180(7).
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.
The Rhode Island Supreme Court recognizes two sources of the right to access court information. One is “a general right” under the common law “to inspect and copy public records and documents, including judicial records and documents.” Providence Journal Co. v. Rodgers, 711 A.2d 1131, 1135 (R.I. 1998) (quoting Nixon v. Warner Communications, Inc., 435 U.S. 589, 597 (1978)); Hillside Assocs. v. Stravato, 642 A.2d 664, 669 (R.I. 1994) (“[P]ublic policy supports open access to the courts[.]”). The other is the First Amendment right of public access to criminal trials. Rodgers, 711 A.2d at 1135 (“That the press and the public have a First Amendment right of access to criminal trials is beyond dispute.” (quoting Richmond Newspapers Inc. v. Virginia, 448 U.S. 555, 580 (1980))); see also In re Derderian, 972 A.2d 613, 617 (R.I. 2009).
The Rhode Island Superior Court Rules of Civil Procedure also provide for public access to court proceedings. Rule 77(b) provides that “[a]ll trials upon the merits shall be conducted in open court and so far as practicable in a regular court room.” Rule 43(a) also provides that “[i]n all trials the testimony of witnesses shall be taken orally in open court, unless otherwise provided by statute, by these rules, or by the Rhode Island Rules of Evidence.”
The South Carolina Constitution in article 1, section 9 provides that “[a]ll courts shall be public, and every person shall have speedy remedy therein for wrongs sustained.” The United States Supreme Court has interpreted the guarantees of freedom of speech and of the press found in the First Amendment to the United States Constitution to include a guarantee of open and public courts. Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 580 (1980). The right of access to the courts applies to the press as well as the public as the U.S. Supreme Court described in Cox Broadcasting v. Cohn, 420 U.S. 469 (1975).
Because courts (including South Carolina’s) view the access rights of the public and press as constitutionally guaranteed, the First Amendment analysis applies a strong presumption favoring open criminal proceedings. In re Charlotte Observer, 882 F.2d 850, 852 (4th Cir. 1989); In re Knight Publ’g Co., 743 F.2d 231, 234 (4th Cir. 1984).
South Dakota courts recognize the right of openness guaranteed by the United States Constitution and by the common law:
Both the First Amendment and the common law involve a presumption of openness, but the scrutiny required of the trial judge's decision to close the proceedings differs. Under a First Amendment analysis, the presumption of openness can only be overcome with a showing of 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 Ct. of Cal., Riverside Cnty., 464 U.S. 501, 510 (1984). The common law, on the other hand, balances the competing interests of the parties.
Rapid City Journal v. Delaney, 2011 S.D. 55, ¶ 9, 804 N.W.2d 388, 392.
With respect to proceedings, there are no specific access statutes or court rules. However, access to court records is governed by S.D. Codified Laws § 15-15A for South Dakota’s Unified Judicial System Court Records Rule which discusses, among other things, who has access to court records, which records are only available at a court facility, and procedures for requesting access.
The First Amendment of the U.S. Constitution, as applied to the States by the Fourteenth Amendment, protects the public’s presumptive right of access to criminal proceedings in Texas. See Houston Chronicle Publ’g Co. v. Crapitto, 907 S.W.2d 99, 103 (Tex. App.—Houston [14th Dist.] 1995, orig. proceeding) (citing Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 603 (1982)); Express-News Corp. v. McRae, 787 S.W.2d 451, 452 (Tex. App.—San Antonio 1990, orig. proceeding); Ex parte F.T.K., No. 13-16-00535-CV, 2018 WL 2440545, at *2 (Tex. App.—Corpus Christi–Edinburg May 31, 2018, no pet.) (mem. op.). As the United States Supreme Court has noted, this right obligates courts to “take every reasonable measure to accommodate public attendance at criminal trials.” Presley v. Georgia, 558 U.S. 209, 215 (2010) (per curiam). As the right of access lies with the public, it exists even when no party to the proceeding asserts it. See id. at 214.
The Supreme Court of Texas and the Court of Criminal Appeals have likewise recognized a constitutional right of public and media access to the judicial process under the Texas Constitution. See Star-Telegram, Inc. v. Walker, 834 S.W.2d 54, 56 (Tex. 1992) (citing Davenport v. Garcia, 834 S.W.2d 4, 10 (Tex. 1992)); Houston Chronicle Publ’g Co. v. Shaver, 630 S.W.2d 927, 933–34 (Tex. Crim. App. 1982) (en banc); see also Tex. Const. art. I, § 8 (“Every person shall be at liberty to speak, write or publish his opinions on any subject, being responsible for the abuse of that privilege; and no law shall ever be passed curtailing the liberty of speech or of the press”).
In addition to the Texas Constitution’s protections, the Texas Code of Criminal Procedure protects the public’s right of access to criminal proceedings. See San Antonio Express-News v. Roman, 861 S.W.2d 265, 267 n.1 (Tex. App.—San Antonio 1993, orig. proceeding) (noting that “the media cannot be prevented from publishing accounts of judicial proceedings” and citing to Article 1.24 of the Texas Code of Criminal Procedure); see also Tex. Code Crim. Proc. Ann. art. 1.24 (“The proceedings and trials in all courts shall be public.”). Along these lines, Article 1.24 of the Texas Code of Criminal Procedure manifests “a lasting expression of the legislative will . . . that a right of access to ‘proceedings and trials in all courts’ in the public in general and the press in particular prevails.” Shaver, 630 S.W.2d at 932. However, public access to criminal proceedings is limited in certain contexts, such as jury deliberations, grand jury proceedings, and in camera reviews. See Roman, 861 S.W.2d at 267 n.1.
Utah’s Government Records Access and Management Act (“GRAMA”), available at https://le.utah.gov/xcode/Title63G/Chapter2/63G-2.html, states that “[e]very person has the right to inspect a public record free of charge, and the right to take a copy of a public record . . . .” Utah Code § 63G-2-201(1). Under GRAMA, “[a] record is public unless otherwise expressly provided by statute.” Id.§ 63G-2-201(2). Records classified as “private,” “controlled,” or “protected” are not public records. § 63G-2-201(3)(a).
GRAMA replaced the “Information Practices Act” and “Public and Private Writings Act” that previously governed access to government records in Utah. In enacting GRAMA, the Legislature expressly “recognize[d] two constitutional rights: (a) the public’s right of access to information concerning the conduct of the public’s business; and (b) the right of privacy in relation to personal data gathered by governmental entities.” § 63G-2-102(1). The Legislature also “recognize[d] a public policy interest in allowing a government to restrict access to certain records . . . for the public good.” § 63G-2-102(2). Thus, the Legislature’s intent in enacting GRAMA was to:
(a) promote the public’s right of easy and reasonable access to unrestricted public records; (b) specify those conditions under which the public interest in allowing restrictions on access to records may outweigh the public’s interest in access; (c) prevent abuse of confidentiality by government entities by permitting confidential treatment of records only as provided in this chapter; (d) provide guidelines for both disclosure and restrictions on access to government records, which are based on the equitable weighing of the pertinent interests and which are consistent with nationwide standards of information practices; (e) favor public access when, in the application of this act, countervailing interests are of equal weight; and (f) establish fair and reasonable records management practices.
§ 63G-2-102(3); see also Deseret News Publ’g Co. v. Salt Lake Cty., 2008 UT 26, ¶ 13, 182 P.2d 372 (“The Legislature enacted GRAMA to advance the cause of governmental transparency and accountability.”).
In a leading pre-GRAMA decision, the Utah Supreme Court stated that “it is the policy of this state that public records be kept open for public inspection in order to prevent secrecy in public affairs.” KUTV Inc. v. Utah State Bd. of Educ., 689 P.2d 1357, 1361 (Utah 1984). Consequently, “[t]he presumption . . . has always been [in favor of] public access, subject only to specific statutory restrictions, personal privacy rights, and countervailing public policy,” and any agency seeking to withhold information from the public bears the burden to justify its actions. Id. More recently, the Utah Supreme Court held that courts should apply the Legislature’s “clear and preeminent intent” to favor public disclosure even if “countervailing interests are of equal weight.” Deseret News Publ’g, 2008 UT 26, ¶ 24 n.3. A Utah federal district court also “has acknowledged and followed the well-recognized axiom that a common law right exists to inspect and copy judicial records.” Huntsman-Christensen Corp. v. Entrada Indus., Inc., 639 F. Supp. 733, 735 (D. Utah 1986) (internal quotations omitted).
Unlike access statutes in other jurisdictions, GRAMA applies to the state’s judicial branch, including its “courts, the Judicial Council, Office of the Court Administrator and similar administrative units in the judicial branch.” Utah Code § 63G-2-103(11)(a)(iii). The judiciary is not, however, subject to GRAMA’s appeals provisions. See § 63G-2-702(2)(a). Judicial records also may be subject to other statutes, regulations, judicial rules, or court orders. See, e.g., Utah Code Jud. Admin. 4-201 to R4-206.
Although the Vermont Public Records Act says it applies to any “branch” of the state government, 1 V.S.A. § 317(a)(2), Vermont Supreme Court opinions suggest that court and judicial records are not subject to the Act, see, e.g., State v. Whitney, 2005 VT 102 ¶ 9, and the judiciary is expressly exempted from Vermont’s Open Meeting Law, see 1 V.S.A. § 312(e). Moreover, separate statutes and rules define the duties of court clerks, e.g., 4 V.S.A. § 740, as well as the common law right of all courts to control their own procedures and records, State v. Edson, 2014 Vt. Unpub. LEXIS 8, *10, 195 Vt. 661.
It is beyond dispute that Vermont citizens have a “constitutional and common law right of access to court records.” State v. Tallman, 148 Vt. 465, 472, 537 A.2d 422, 427 (Vt. 1987); see also In re Sealed Documents, 172 Vt. 152, 161, 772 A.2d 518, 527 (Vt. 2001); State v. Schaefer, 157 Vt. 339, 347, 599 A.2d 337, 342 (Vt. 1991). These long-standing rights apply in both civil and criminal cases and stem from the right of the public to hold accountable, and have confidence in, the judiciary. See, e.g., Vt. Pub. Acc. Ct. Rec. Rule 1, reporter’s note (“The judiciary, like the other branches of state government, is accountable to the public. Open access to its records and proceedings is essential to maintaining public trust and confidence in the operation of the court system.”).
Indeed, this right of access is so important that the Vermont judiciary created a separate set of rules — the Vermont Rules for Public Access to Court Records (the “Rules”) — which govern the rights of access by the public to judicial records. See Vt. Pub. Acc. Ct. Rec. Rule 1; see also State v. Whitney, 2005 VT 102, ¶ 9, 885 A.2d 1200, 1203 (Vt. 2005). Recently, the Vermont Supreme Court made explicit that “[r]equests to courts for public access to case records should be evaluated under the Vermont Rules for Public Access to Court Records,” not the Vermont Public Records Act. In re Vsp-Tk/1-16-18 Shooting Gray TV, 2019 VT 47¶ 13 (July 19, 2019).
These Rules “provide a comprehensive policy on public access to Judicial Branch records . . . [and] [t]hey shall be liberally construed in order to implement the policies therein.” Vt. Pub. Acc. Ct. Rec. Rule 1. The general policy in Vermont with respect to public access to court records is that such records “shall be open to any member of the public for inspection or to obtain copies.” Vt. Pub. Acc. Ct. Rec. Rule 4 (emphasis added). Specifically, the Rules provide that “[t]he public shall have access to all case records, in accordance with the provisions of this rule, except as provided in subsection (b) of this section.” Vt. Pub. Acc. Ct. Rec. Rule 6(a) (emphasis added); see also In re Vsp-Tk/1-16-18 Shooting Gray TV, 2019 VT at ¶ 22. The Reporter’s Notes indicate that the Rules “do not govern access to court proceedings . . . [but] [i]f the public has access to a proceeding, it has access to a record of the proceeding, unless that record is specifically exempted from disclosure.” Vt. Pub. Acc. Ct. Rec. Rule 1.
Unlike access to court records, there is no comprehensive rule or statute governing public access to court proceedings in Vermont. However, the Vermont Supreme Court has repeatedly recognized the “generally accepted practice[,] as well as the public’s constitutional and common law right of access[,] to court records and proceedings.” State v. Tallman, 148 Vt. 465, 472, 537 A.2d 422, 427 (Vt. 1987); see also Herald Ass’n v. Ellison, 138 Vt. 529, 533-534, 419 A.2d 323, 326, (Vt. 1980) (noting that, in Vermont, public judicial proceedings are the rule and closed ones the exception).
In Virginia, there are four sources of the public’s presumptive right of access to judicial proceedings and records: (1) the common law; (2) the First Amendment to the federal Constitution; (3) Article I, Section 12 of the Virginia Constitution; and (4) the Virginia Code.
Various provisions of the Virginia Code bear on the public’s qualified right of access, including most notably proceedings involving juvenile defendants, see Va. Code § 16.1-302(C); certain proceedings involving certain sex crimes, see Va. Code § 18.2-67.8; proceedings involving juvenile victims, see Va. Code § 18.2-67.9; proceedings involving the settlement of wrongful death claims, see Va. Code § 8.01-55; records maintained by the circuit court clerks, see Va. Code § 17.1-208(B); and records maintained by clerks of the general district courts, see Va. Code § 16.1-69.54:1(E).
The U.S. Supreme Court has repeatedly held that the public’s right to open court proceedings is protected by the First Amendment. See Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555 (1980); Globe Newspaper Co. v. Superior Court, 457 U.S. 596 (1982); Press Enterprise Co. v. Superior Court, 478 U.S. 1, 9, 10 (1986).
In Washington, the right to open court proceedings is constitutionally mandated by article I, section 10 of the state constitution, which provides: “[j]ustice in all cases shall be administered openly, and without unnecessary delay.” Washington courts have a duty to ensure “the right of the people to . . . freely observe the administration of civil and criminal justice.” Allied Daily Newspapers of Wash. v. Eikenberry, 121 Wn.2d 205, 211, 848 P.2d 1258 (1993).
The Washington Supreme Court has expressly held that art. I, sec. 10 “guarantees the public and the press a right of access to judicial proceedings and court documents in both civil and criminal cases.” Dreiling v. Jain, 151 Wn.2d 900, 908, 93 P.3d 861, 866 (2004). The Court has relied on this constitutional requirement to guarantee meaningful public access to judicial proceedings and records in a variety of contexts, as further detailed below.
Under the open courts provision of the West Virginia Constitution, the Supreme Court of Appeals of West Virginia has held that the public and press have a right to attend criminal and civil court proceedings, but this is not an absolute right. State ex rel. Garden State Newspapers, Inc. v. Hoke, 205 W. Va. 611, 615–16, 520 S.E.2d 186, 190–91 (1999). Although the public's right of access to courts is not absolute, this right should never be arbitrarily or summarily denied, and when the closure issue arises, the trial court should make a careful inquiry into the matter, affording all interested parties an opportunity to be heard. Daily Gazette Co., Inc. v. Committee on Legal Ethics of the West Virginia State Bar, 174 W.Va. 359, 326 S.E.2d 705 (1984).
In addition, a statute or court rule often will govern public access to court proceedings and records. For example, West Virginia Trial Court Rule 3.01 states that, “The court is considered open and in continuous session in all divisions of the circuit court in accordance with the provisions of West Virginia Rule of Civil Procedure 77 and other controlling statutes and rules.” Id., http://www.courtswv.gov/legal-community/court-rules/trial-court/chapter-1.html#rule3.01.
See State ex rel. Stevens v. Circuit Court for Manitowoc County, 141 Wis. 2d 239, 414 N.W.2d 832 (Wis. 1987) (Recognizing various constitutional provisions providing right to public trial):
The sixth amendment of the United States Constitution provides that “[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial.” … The “public trial” right is also referred to in art. I, sec. 7 of the Wisconsin Constitution.
The [United State Supreme] Court reasoned that the aims and interests protected by requiring a trial to be public were no less pressing in a suppression hearing, and that “the explicit Sixth Amendment right of the accused is no less protective of a public trial than the implicit First Amendment right of the press and public.”
See Wis. Const. art. I, § 7:
In all criminal prosecutions the accused shall enjoy the right to be heard by himself and counsel; to demand the nature and cause of the accusation against him; to meet the witnesses face to face; to have compulsory process to compel the attendance of witnesses in his behalf; and in prosecutions by indictment, or information, to a speedy public trial by an impartial jury of the county or district wherein the offense shall have been committed; which county or district shall have been previously ascertained by law.
See Wis. Stat. § 757.14:
The sittings of every court shall be public and every citizen may freely attend the same, except if otherwise expressly provided by law on the examination of persons charged with crime; provided, that when in any court a cause of a scandalous or obscene nature is on trial the presiding judge or justice may exclude from the room where the court is sitting all minors not necessarily present as parties or witnesses.
See State ex rel. La Crosse Tribune v. Circuit Court for La Crosse County, 115 Wis. 2d 220, 340 N.W.2d 460 (Wis. 1983) (discussing Wis. Stat. § 757.14):
We emphasize that the presumption under the statute is clear-that courts at all sittings thereof are to be open to the public and may be closed only when, in the exercise of discretion, the trial court determines, after hearing and the making of explicit findings, that overwhelming public values connected with the administration of justice will be subverted by public trial. The failure to expressly exercise discretion on the basis of findings of fact will be deemed an abuse of discretion. Findings of fact are to be made only after an opportunity is given to the parties and to the public to be heard. . . . Although in the instant case we address only the statutory right, the right of public access to the courts is not a right to be taken lightly; and, accordingly, the closing of the court to the general public should be made deliberately and rationally and in a manner that the propriety of the exercise of discretion can be reviewed by an appellate court. It would appear that the great virtue in our Anglo-American court system is that it is open to the public so that all will know that the courts, as instruments of government, are defending the rights of the people and are not suppressing them. Thus it will be rare indeed when a trial judge can appropriately and in the exercise of discretion conclude that the quest for justice will be better served by secrecy than by public disclosure.