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.”
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 an agency 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 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. United States v. Brown, 250 F.3d 907, 914 (5th Cir. 2001).
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 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. v. Clark, 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. Sec. & Exch. Comm’n v. 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).
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.
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”).
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.
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.
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.”
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).
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.
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).
Even before Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555 (1980), the Oklahoma Court of Criminal Appeals had recognized the presumptive openness of judicial proceedings and the functional values served by openness in Lyles v. State, 1958 OK CR 79, 330 P.2d 734 (rejecting claim of appellant that television coverage of trial had denied him a fair trial), and Neal v. State, 1948 OK CR 26, 192 P.2d 294 (exclusion of public from trial was prejudicial error). Richmond Newspapers and the Press–Enterprise cases have been cited and applied by the Oklahoma courts in a variety of contexts. See, e.g., Ynclan v. Woodward, 2010 OK 29, 237 P.3d 145 (citing Richmond Newspapers for importance of open judicial proceeding, but finding due process does not require that either parent have access to transcript of in camera interview of children in custody trial); Nichols v. Jackson, 2001 OK CR 35, 38 P.3d 228 (citing Press–Enterprise Co. v. Superior Court of Cal., 478 U.S. 1 (1986) (Press Enterprise II) for presumption of openness of criminal proceedings, and holding that closure of any aspect of the proceedings must be based on clearly articulated and specific findings that balance the rights of the accused and the public); Reeves v. State, 1991 OK CR 101, 818 P.2d 495 (citing Richmond Newspapers and Press–Enterprise Co. v. Superior Court of Cal., 464 U.S. 501 (1984) (Press–Enterprise I) for importance of public trials, but holding exclusion of public during testimony of minor victim of molestation did not abridge defendant’s rights); Shipman v. State, 1982 OK CR 3, 639 P.2d 1248 (relying on Richmond Newspapers to hold that criminal defendant could not exclude public from trial to prevent alleged harassment of witnesses). See also In the Matter of the Application of Spilman, 2010 OK 70, 240 P.3d 702 (citing Richmond Newspapers and Press–Enterprise I as constitutional underpinning for public’s right to know about disciplinary proceedings in case where court denied reinstated lawyer’s request that bar proceedings be sealed and expunged) (V.C.J. Taylor and J. Opala, concurring); Collier v. Reese, 2009 OK 86, 222 P.3d 966 (citing Richmond Newspapers and Press–Enterprise II for functional values of open judicial proceedings) (J. Opala, concurring); Reynolds v. Beacon Well Services, Inc., 1993 OK 104, 857 P.2d 74 (citing Richmond Newspapers and Press–Enterprise I for openness of judicial proceedings) (JJ. Wilson, Opala, Kauger, dissenting from majority decision that litigant did not have right to have court reporter transcribe administrative process of initial qualifications and excusals of civil jury panel); Oklahoma Pub. Co. v. Martin, 1980 OK 153, 618 P.2d 944 (citing Richmond Newspapers as support for statute requiring that mental competency hearings in criminal cases be open to public and media).
In Wright v. Grove Sun Newspaper Co., Inc., 1994 OK 37, 873 P.2d 983, the court concluded that accurate media accounts of a district attorney’s press conference were subject to a common–law fair report privilege. In support of its conclusion, the court cited Richmond Newspapers for the proposition that openness and publicity enhance the public’s confidence in the administration of a legal system.
Oklahoma does not have express statutory provisions comparable to Fed. R. Civ. P 43(a) or 77(b). However, Okla. Stat. tit. 22, §13 provides that the defendant in a criminal case is entitled to a speedy and public trial; there are also random statutes making reference to open court proceedings. For example, Okla. Stat. tit. 22, §§ 973–974 permit either prosecution or defense to present evidence of aggravating or mitigating circumstances after the defendant has entered a guilty plea, and § 974 says the evidence “must be presented by the testimony of witnesses examined in open court.” In general, records filed in court proceedings are subject to the Oklahoma Open Records Act, Okla. Stat. tit. 51, §§ 24A.1 et seq., see Nichols v. Jackson, 2002 OK 65, 55 P.3d 1044, and can be obtained simply by asking for them.
The United States Constitution and the Pennsylvania Constitution grant the public and the press a presumptive right of access to civil and criminal proceedings. See U.S. Const. amend. I; Pa. Const. art. I, §11 (“All courts shall be open.”); Commonwealth v. Berrigan, 501 A.2d 226, 232 (Pa. 1985) (“[T]he First Amendment to the Federal Constitution is broad enough to encompass the right of access to criminal trials to the public and media.”); Commonwealth v. Hayes, 414 A.2d 318, 321 (Pa. 1980) (“[I]n addition to providing a right to the accused for ‘a speedy public trial,’ Art. 1, § 9 [of the Pennsylvania Constitution] also has the additional requirement that ‘all courts shall be open.’”); see also In re M.B., 819 A.2d 59 (Pa. Super. 2003) (“This constitutional provision has been referred to as a ‘mandate’ for open and public trials . . . and has been applied in both civil and criminal cases . . . .”) (citations omitted).
There are three policy bases for such access: (1) access “fosters public confidence in the fairness” of the justice system; (2) it “aids in the public oversight of the judiciary”; and (3) it “serves as a ‘community therapeutic value.’” Commonwealth v. Davis, 635 A.2d 1062, 1069 (Pa. Super. 1993) (citations omitted).
There is also “a qualified First Amendment right of access to certain judicial … documents.” Commonwealth v. Martinez, 917 A.2d 856, 860 (Pa. Super. 2007). Thus, in Pennsylvania, the First Amendment right of access extends to both judicial proceedings and documents.
In Pennsylvania, the common law also grants the public and press a presumptive right of access to “public judicial documents.” Commonwealth v. Fenstermaker, 530 A.2d 414, 418 (Pa. 1987); see also Commonwealth v. Curley, --- A.3d ---, 2018 Pa. Super. LEXIS 599, at *9 (June 4, 2018) (recognizing “the right of the public to inspect judicial records”). The common law presumption of openness requires courts to balance “the presumption of openness attached to a public judicial document” against the “circumstances warranting closure of the document to public inspection.” Fenstermaker, 530 A.2d at 420.
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).
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.