A. The roots of access rights
In 1981, the Kansas Supreme Court adopted a presumption that court records and proceedings were open. Ever since, the court’s decision, in Kansas City Star Co. v. Fossey, 630 P.2d 1176 (Kan. 1981), has been central to media claims for access to the state’s courts.
Fossey arose when a juvenile was charged with murdering his stepbrother. He was held for trial as an adult. At one point early in the proceedings, the judge, Leighton A. Fossey, scheduled a hearing on whether the defendant had involuntarily made self-incriminating statements to the police. Judge Fossey indicated in open court that he would hold a hearing on whether to suppress the defendant’s statements. He also indicated that he would close the suppression hearing to the press and the public. In response, three reporters in the courtroom stood, and one read a statement that had been prepared by her employer, the Kansas City Times. The statement called for a hearing on whether or not the judge should exclude the press and the public.
Nevertheless, Judge Fossey expressed concern about “considerable publicity concerning the case” that could prejudice the jury against the defendant. Fossey, 630 P.2d at 1178. He closed the courtroom and held the suppression hearing. Afterward, he ruled that the defendant’s self-incriminating statements would be admissible at the trial. He also decided to permit reporters covering the trial to read the defendant’s statements, although only after they were introduced into evidence.
In response, the Kansas City Star Company, publisher of the Kansas City Times, filed a motion to intervene. The Star sought to reverse Judge Fossey’s closure order and obtain a transcript of the suppression hearing. Although the judge declined to vacate his order, he agreed to the eventual release of a copy of the transcript of the suppression hearing. At the end of the trial, the defendant was found guilty. Meanwhile, the Star appealed from Judge Fossey’s closure of the suppression hearing by petitioning the Kansas Supreme Court for a writ of mandamus.
In Fossey, the Kansas Supreme Court rejected the newspaper’s mandamus petition, upholding the trial judge’s closure of the suppression hearing. The state supreme court viewed the suppression hearing as a pre-trial proceeding, even though the jury already had been impaneled. As a result, the supreme court declined to be guided by the holding in Richmond Newspapers, Inc., v. Virginia, 448 U.S. 555 (1980), that criminal trials are presumed to be open. Instead, the supreme court relied on Gannett Co. v. DePasquale, 443 U.S. 368 (1979), which found no constitutional right for the public to attend pre-trial proceedings.
Nonetheless, in Fossey, the Kansas Supreme Court held that, in the future, a presumption of openness would apply to criminal court proceedings and records. The state supreme court established the presumption with reference to standards that the American Bar Association had approved in 1978. The standards generally were in accord with Richmond Newspapers. The policy underlying the standards “is a strong presumption in favor of open judicial proceedings and free access to records in a criminal case.” Fossey, 630 P.2d at 1182.
Under Fossey, closure of court proceedings is allowed “‘only if (i) the dissemination of information from the pretrial proceeding and its record would create a clear and present danger to the fairness of the trial, and (ii) the prejudicial effect of such information on trial fairness cannot be avoided by any reasonable alternative means.”’ Fossey, 630 P.2d at 1182 (quoting Fair Trial and Free Press: Standard 8-3.2 of the ABA’s Standing Committee on Association Standards for Criminal Justice (August, 1978)).
The Kansas Supreme Court said:
There is almost universal agreement among the courts and writers who have considered the issue that access to court proceedings should be limited only in exceptional circumstances. It has been said that the reason for requiring all court proceedings to be open, except where extraordinary reasons for closure are present, . . . is to enhance the public trust and confidence in the judicial process and to insulate the process against attempts to use the courts as tools for persecution.
Fossey, 630 P.2d at 1181.
The public interest in access to courts, according to the supreme court, “‘is at least as strong as the first amendment policy against prior restraints.”’ Fossey, 630 P.2d at 1183 (quoting the ABA Standards).
Before the Kansas Supreme Court embraced a presumption of openness in Fossey, it acknowledged the common law right of access to records, although the right was qualified. In Stephens v. Van Arsdale, 608 P.2d 972 (Kan. 1980), the state supreme court said that a judge had discretion to deny access to court records if they are to be used “‘to gratify private spite or promote public scandal’ through the publication of the details of a divorce case or for the publication of libelous statements for press consumption, or as sources of business information that might harm a litigant’s competitive standing.” Van Arsdale, 608 P.2d at 982 (quoting Nixon v. Warner Commc’ns, Inc., 435 U.S. 589, 598 (1978)).
The U.S. Supreme Court has observed that, in many jurisdictions, the common law right of access to court records “has been recognized or expanded by statute.” Nixon., 435 U.S. at 598 n.7. To the extent that the Kansas Legislature has codified common law access, it has done so principally through the Kansas Open Records Act (KORA). Kan. Stat. Ann. (K.S.A.) 45-215 et seq. In KORA, the Legislature declared that openness of public agencies’ records is presumed. K.S.A. 45-216. The presumption of openness controls unless a requested record falls within an exemption specified in KORA. In general, if a record is specifically exempt, public agencies “shall not be required to disclose” it. K.S.A. 45-221(a).
The Kansas Supreme Court exercised authority over records in the state’s courts by issuing an order titled Administration of the Kansas Open Records Act. See Kan. Order No. 156, http://www.kscourts.org/Kansas-courts/supreme-court/administrative-orders/Admin-order-156.pdf. The state supreme court also prescribed a procedure for requesting court records. See Request Court Records, http://www.kscourts.org/rules-procedures-forms/open-records-procedures/default.asp. The supreme court’s statement of procedure includes notice that, by statute, some kinds of records are not subject to disclosure. The statement also notes that records may be closed by rule of the supreme court. KORA acknowledges the supreme court’s authority to close records in K.S.A. 45-221(a)(1)). The supreme court gives notice that open court records include “case files and transcripts” and “[f]inal civil and criminal judgments.” Also noted is the fact that some records are not accessible “pursuant to judicial order or caselaw” and that KORA “recognizes that some records contain information that is private in nature.”
Records that are private include records of judges themselves, as opposed to records associated with court proceedings. KORA exempts “any municipal judge, judge of the district court, judge of the court of appeals or justice of the supreme court” from the requirement that public agencies make their records available. K.S.A. 45-217(f)(2)(B). The exemption, for example, applies to long-distance telephone records of judges, even if the records are on file with a public agency. See Op. Kan. Att’y Gen. No. 96-77 (Sept. 12, 1996). Judges, however, are required to make an annual public disclosure of certain personal financial matters. See Rules Related to Judicial Conduct / Kansas Canons of Judicial Conduct / Canon 3, Rule 3.15, Reporting Requirements, http://www.kscourts.org/rules/Judicial_Conduct/Canon%203.pdf. In (A)(1), the rule requires disclosure of “compensation received for extrajudicial activities as permitted . . . and compensation received by the judge’s spouse or domestic partner.”
The roots of access rights in Maine are, generally, the First Amendment and the common law—and, in a few instances, court rules and statutes. The Supreme Judicial Court observed that the U.S. Supreme Court has recognized that “members of the public have a First Amendment right to access certain criminal proceedings.” In re. Bailey M., 2002 ME 12, ¶ 11, 788 A.2d 590.
In Maine the right to free speech and to freedom of the press under the Maine Constitution are generally considered co-extensive with rights under parallel clauses contained in the U.S. constitution. See Me. Const. art. I, § 4 (“Every citizen may freely speak, write and publish his sentiments on any subject, being responsible for the abuse of this liberty; no laws shall be passed regulating or restraining the freedom of the press; . . . .”); State v. Frisbee, 2016 ME 83, ¶ 14, 140 A.3d 1230 (Me. 2016) (“the rights . . . conferred by the Maine Constitution and the United States Constitution are generally coextensive”); Cent. Me. Power Co. v. Pub. Util. Comm’n, 734 A.2d 1120, 1999 ME 119, ¶ 8 (“With respect to free speech rights, ‘the Maine Constitution is no less restrictive than the Federal Constitution.’”); In re Letellier, 578 A.2d 722, 727 (Me. 1990) (“the Maine Constitution does not make its protection of freedom of the press any more or less absolute or any more or less extensive than the constitutional protection accorded that freedom under the First Amendment”); and Gelder v. Cote, 2007 Me. Super. LEXIS 154, *7 (Me. Super. Ct. July 16, 2007) (“In the absence of any authority supporting a different conclusion, this Court holds that the free speech rights protected by the Maine Constitution are ‘coextensive’ with those under the United States Constitution.”).
The Supreme Judicial Court has not foreclosed the possibility that state constitutional or common law rights to access to the courts may differ from comparable rights under the federal constitution. See City of Portland v. Jacobsky, 1984 Me. Super. LEXIS 24 *19 (Me. Super. Ct. Feb. 7, 1984) (“The Law Court has explicitly refused to be as bound to Federal bill of rights precedent as the City suggests, even in cases where it has limited its consideration to the First Amendment or other Amendments in the Bill of Rights.”).
The Maine Rules of Civil Procedure provide for public access to civil trial proceedings. The Rules provide, “All trials upon the merits shall be conducted in open court and so far as convenient in a regular court room.” M. R. Civ. P. 77(b). However, “[a]ll other acts or proceedings may be done or conducted by a justice or judge in chambers, without the attendance of the clerk or other court officials and at any place either within or without the county or division where the action is pending.” Id. The Rules also provide that “[i]n every trial, the testimony of witnesses shall be taken in open court, unless a statute, these rules or the Rules of Evidence provide otherwise.” M. R. Civ. P. 43(a). Criminal trials are also open to the public as required by the First and Sixth Amendments to the U.S. Constitution.
A few statutes govern particular types of proceedings, such as criminal proceedings involving juveniles.
The 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.