B. Overcoming a presumption of openness
Neither the qualified constitutional right of access nor the common law right of access is absolute. Globe Newspaper Co. v. Superior Court for Norfolk Cty., 457 U.S. 596, 606 (1982) (noting constitutional right of access “is not absolute”); United States v. Pickard, 733 F.3d 1297, 1302 (10th Cir. 2013) (noting common law right of access “is not absolute”). Rather, the presumption of openness can be overcome. The burden of proving that closure is justified falls on the party seeking closure, and the standard to overcome the presumption depends on the source of the right.
First, the presumption of a qualified First Amendment right of access can be overcome “by an overriding interest based on findings that closure is essential to preserve higher values and is narrowly tailored to serve that interest.” United States v. Gonzales, 150 F.3d 1246, 1256 (10th Cir. 1998) (citing Press-Enterprise Co. v. Superior Court, 464 U.S. 501, 510 (1984) (“Press-Enterprise I”). “The interest is to be articulated along with findings specific enough that a reviewing court can determine whether the closure order was properly entered.” Id. (citing Press-Enterprise I, 464 U.S. at 510).
To overcome the strong common law presumption of public access to documents, the party seeking closure “bears the burden of showing some significant interest that outweighs the presumption.” United States v. Pickard, 733 F.3d 1297, 1302 (10th Cir. 2013). “[J]udicial documents are presumptively available to the public, but may be sealed if the right to access is outweighed by the interests favoring nondisclosure.” McVeigh II, 119 F.3d 806, 811 (10th Cir. 1997). The common-law right of access generally is less absolute than the constitutional right — at times bowing, for example, to the less-than-compelling interest in ensuring that court records “are not ‘used to gratify private spite or promote public scandal’ through the publication of ‘the painful and sometimes disgusting details of a divorce case.’” Nixon v. Warner Communications, Inc., 435 U.S. 589, 598 (1978) (internal citation omitted).
The presumption of access is a baseline presumption. The party seeking closure has the burden of proving that closure is justified. The standard required to overcome the presumption differs slightly between the common law and the First Amendment right.
First Amendment. The First Amendment right of access may only be overcome by a demonstration of "substantial probability of harm to a compelling interest." Under Seal v. Under Seal, 273 F. Supp. 3d 460 (S.D.N.Y. 2017). This requires specific, on the record findings 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 at 116. Broad or general findings are insufficient, "[t]he interest is to be articulated along with findings specific enough that a reviewing court can determine whether the closure order was properly entered." Press–Enter. Co. v. Super. Ct., 464 U.S. 501, 510 (1984). Court orders that seal records are open to challenge where they do not sufficiently articulate the basis for closure or allow the litigants to designate material to be sealed without necessary court supervision and approval.
Common law. Once the court (1) determines that there is a presumption of access, and (2) affords the presumption a particular weight, it will then (3) weigh the presumption against competing interests. If the court determines that competing interests outweigh the presumption of access, it may seal documents, but "sealing must be supported by specific findings." Hardy v. Kaszycki & Sons, No. 83-CV-6346 (LAP), 2017 WL 6805707, at *6 (S.D.N.Y. Nov. 21, 2017) (citing United States v. Amodeo, 44 F.3d 141, 148 (2d Cir. 1995)).
Recently, in Bernstein v. O'Reilly, Case No. 17-cv-9483, 2018 WL 1615840 (S.D.N.Y. April 3, 2018) the Southern District denied the defendant's motion to seal documents where he failed to "present compelling countervailing factors that could overcome the presumption of public access" to court records. The documents in question were settlement and arbitration agreements that the court determined were "judicial documents" deserving of the presumption of access under Second Circuit doctrine. Id. at *3. The court then analyzed the weight of the presumption and determined it was "heavy" because "[t]he documents comprise a significant proportion of the ... record before the Court and they pertain to matters that directly affect the Court's adjudication.” Id. (internal quotation marks and citations omitted). Given the weight of the presumption, the court ultimately concluded that the countervailing interests asserted by the defendant – the assertion that the parties intended to keep the agreements confidential – could not overcome the presumption of access. Id.
The common law provides a default presumption of access to all court proceedings and records. A party seeking to overcome the common law presumption of access bears the burden of showing some countervailing interest that outweighs the public interests in access. Rushford v. New Yorker Magazine, Inc., 846 F.2d 249, 253 (4th Cir. 1988); see also In re U.S. for an Order Pursuant to 18 U.S.C. Section 2703(D), 707 F.3d 283, 293 n.12 (4th Cir. 2013) (“[T]o overcome the common law presumption of access, the government's interests must merely outweigh the public's interest.”). Some of the factors to be weighed in the common law balancing test include whether the records are sought for improper purposes, such as promoting public scandals or unfairly gaining a business advantage; whether release would enhance the public’s understanding of an important historical event; and whether the public has already had access to the information contained in the records. Va. Dep't of State Police v. Wash. Post, 386 F.3d 567, 575 (4th Cir. 2004) (quoting In re Knight Publ. Co., 743 F.2d 231, 235 (4th Cir.1984)). Ultimately, whether to permit access under the common law is a matter within the trial court’s “supervisory power” and is one “best left to the sound discretion of the [district] court, a discretion to be exercised in light of the relevant facts and circumstances of the particular case.” Id. (quoting Nixon, 435 U.S. at 598–99). Thus, a trial court’s denial of access under the common law is reviewed only for abuse of discretion. Rushford, 846 F.2d at 253 (citing Nixon, 435 U.S. at 597–99).
In contrast to the common law, the First Amendment right of access only applies to particular proceedings and records but weighs more heavily in favor of openness. See Stephens v. Cty. of Albemarle, 422 F. Supp. 2d 640, 643 (W.D. Va. 2006) (“Generally speaking, the First Amendment right of access applies to a narrower range of materials, yet weighs more heavily in favor of the public’s right to obtain those sealed documents.”); see also In re Application of Reporters Committee for Freedom of the Press To Unseal Criminal Prosecution of Julian Assange, No. 1:18-mc-37, 2019 WL 366869, *2 (E.D. Va. Jan. 30, 2019) (“The common law right applies to a broader range of scenarios, but the First Amendment affords a greater degree of substantive protection.”). The standard for overcoming a First Amendment presumption of access is more “rigorous” than the common law standard. In re Washington Post Co., 807 F.2d 383, 390 (4th Cir. 1986). To overcome a First Amendment presumption of access, the moving party must show: (1) that restricting access is necessary to further a compelling governmental interest; (2) that the restriction is narrowly tailored to serve that interest; and (3) that no less restrictive means are available to adequately protect that interest. See Va. Dep't of State Police v. Wash. Post, 386 F.3d 567, 575 (4th Cir. 2004) (quoting Stone v. Univ. of Md. Med. Sys. Corp., 855 F.2d 178, 180 (4th Cir. 1988)); In re Knight Pub. Co., 743 F.2d 231, 234 (4th Cir. 1984) (“Even with findings adequate to support closure, the trial court must consider reasonable alternatives before access may be restricted.”). The Fourth Circuit reviews a district court’s decision concerning access under the First Amendment de novo. Id. (citing In re State-Record Co., Inc., 917 F.2d 124, 127 (4th Cir. 1990)).
Because the common law and First Amendment invoke different standards for assessing the right of access, the district court must identify which is the source of the right of access before balancing the claimed interests. Va. Dep't of State Police v. Washington Post, 386 F.3d 567, 576 (4th Cir. 2004); Co. Doe v. Pub. Citizen, 749 F.3d 246, 266 (4th Cir. 2014); Under Seal v. Under Seal, 230 F.3d 1354 (4th Cir. 2000) (remanding in part because district court failed to identify source of public’s right of access). The Fourth Circuit employs the “experience and logic” test to determine if a right of access exists under the First Amendment, asking: (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. In re U.S. for an Order Pursuant to 18 U.S.C. Section 2703(D), 707 F.3d 283, 291 (4th Cir. 2013) (citing Baltimore Sun Co. v. Goetz, 886 F.2d 60, 64 (4th Cir. 1989)); see also Press–Enter. Co. v. Super. Ct., 478 U.S. 1, 8–10 (1988)).
Regardless of whether the presumption arises from the common law or the First Amendment, the public’s right of access may only be abrogated “in unusual circumstances.” Stone v. Univ. of Md. Med. Sys. Corp., 855 F.2d 178, 182 (4th Cir. 1988); Va. Dep't of State Police v. Wash. Post, 386 F.3d 567, 576 (4th Cir. 2004). “The reason for this presumption is simple: ‘Any step that withdraws an element of the judicial process from public view makes the ensuing decision look more like a fiat and requires rigorous justification.’” In re Application of Reporters Committee for Freedom of the Press To Unseal Criminal Prosecution of Julian Assange, No. 1:18-mc-37, 2019 WL 366869, *3 (E.D. Va. Jan. 30, 2019) (quoting Doe v. Pub. Citizen, 749 F.3d 246, 266 (4th Cir. 2014)).
Because the First Amendment standards afford greater substantive protection to the public's right to access, satisfying the First Amendment standards also necessarily satisfies the relevant common law standards. Hopeman Bros., Inc. v. Cont'l Cas. Co., No. 416-cv-00187, 2018 WL 2426272, *1 (E.D. Va. Feb. 7, 2018).
The weight afforded to the interest to be protected may be determined in part by the response of the individual who is affected by disclosure. See Jennings v. Univ. of N. Carolina at Chapel Hill, 340 F. Supp. 2d 679, 683 (M.D.N.C. 2004) (citing Press-Enter. Co. v. Super. Ct., 464 U.S. 501, 512 (1984)) (denying motion to seal academic transcript filed in connection with summary judgment motion because the party to be protected took no affirmative action in response to the sealing motion, and elected to take no position when invited to do so by the court, and because there is a strong presumption in favor of disclosure).
The interest to be protected through closure must be concrete and particular to the proceeding at issue; generalized, unsubstantiated and speculative concerns are insufficient to overcome either a common law or a First Amendment right of access. See Doe v. Pub. Citizen, 749 F.3d 246, 270 (4th Cir. 2014); Va. Dep't of State Police v. Wash. Post, 386 F.3d 567, 579 (4th Cir. 2004); United States v. Rosen, 487 F. Supp. 2d 703, 717 (E.D. Va. 2007).
Claims of confidentiality for court filings cannot be made indiscriminately and without evidentiary support. “Statements in a brief are not evidence and are insufficient to justify a motion to seal.” United States ex rel. Thomas v. Duke Univ., No. 1:17-cv-276, 2018 WL 4211375, *5 (M.D.N.C. Sept. 4, 2018) (citations omitted); Qayumi v. Duke Univ., No. 1:16-cv-1038, 2018 WL 2025664, *2 (M.D.N.C. May 1, 2018) (citing INS v. Phinpathya, 464 U.S. 183, 188 n. 6 (1984)).
The proposed restriction on access “must actually operate to prevent the threatened danger.” In re Murphy-Brown, LLC, 907 F.3d 788, 798 (4th Cir. 2018) (internal quotations omitted). Consideration of possible alternatives is not necessary if the proposed restriction on access is not substantially likely to protect the interest claimed. See In re Charlotte Observer, 882 F.2d 850, 855 (4th Cir. 1989) (“Where closure is wholly inefficacious to prevent a perceived harm, that alone suffices to make it constitutionally impermissible.”).
Although generally the First Amendment allows more access than the common law, a district court in the Fourth Circuit has found that “[the] common law right of access is especially strong in criminal cases, because ‘the process by which the government investigates and prosecutes its citizens is an important matter of public concern.’” In re Voluntary Disclosures in Fifty-Five Closed Cases, No. 7:16-cr-00044-MFU, 2018 WL 3540281, at *5 (W.D. Va. July 23, 2018) (quoting United States v. Wecht, 484 F.3d 194, 210 (3d Cir. 2007)); see also In re Application of Reporters Committee for Freedom of the Press To Unseal Criminal Prosecution of Julian Assange, No. 1:18-mc-37, 2019 WL 366869, *2 (E.D. Va. Jan. 30, 2019) (“For criminal cases, public access ‘plays a particularly significant role in the functioning of the judicial process’ and inures to the benefit of ‘both the defendant and ... society as a whole.’”) (quoting Globe Newspaper Co. v. Super. Ct., 457 U.S. 596, 606 (1981)).
Even where all of the litigants support the motion to seal, and even where a public hearing on the question does not bring forth anyone to assert the right of access, a court must still engage in a careful deliberation on the issue. Benedict v. Hankook Tire Co., 323 F. Supp. 3d 747, 754 (E.D. Va. 2018); Miles v. Ruby Tuesday, Inc., 799 F. Supp. 2d 618, 623 (E.D. Va. 2011) (“[W]hile it is true that the public's interest in judicial documents is greater when the case itself is already one of great public attention, the right of access still must be protected even where the case at hand does not appear to be one in which the public has already expressed interest.”).
“[T]he mere fact that a court document was previously sealed does not suggest that it should remain sealed permanently.” Topiwala v. Wessell, No. CIV. WDQ-11-0543, 2014 WL 2574504, *3 (D. Md. June 5, 2014) (citing Columbus–Am. Discovery Grp. v. Atl. Mut. Ins., 203 F.3d 291, 303 (4th Cir. 2000) (“Publicity of [court] records ... is necessary in the long run so that the public can judge the product of the courts in a given case.”)).
The Fifth Circuit has held that the presumption of access can be overcome and a trial closed so long as (a) there is an overriding interest based on court findings that closure is essential to preserve higher values (generally a Sixth Amendment right to a fair trial), and (b) so long as the closure order is narrowly tailored to serve that interest. United States v. Hitt, 473 F.3d 146, 154 (5th Cir. 2006). The court must also consider reasonable alternatives to closure. Id.
While trials and records can be closed in certain circumstances, it is far more difficult to establish a sufficient justification for a prior restraint on publication. This can be achieved only if the government can establish that publication either poses a clear and present danger or a serious or imminent threat to a protected competing interest. United States v. Brown, 250 F.3d 907, 914-15 (5th Cir. 2001). In determining whether pretrial publicity is a sufficient reason to justify a prior restraint, a court will review (a) the nature and extent of pretrial news coverage; (b) whether other measures would mitigate the effects of unrestrained pretrial publicity; and (c) the effectiveness of a restraining order to prevent the perceived danger. United States v. Brown, 250 F.3d 907, 916 (5th Cir. 2001).
The media’s right to attend trials and the right to know the identity of the parties to a trial are not necessarily equivalent. This is because the public right to scrutinize governmental functioning is not so completely impaired by a grant of anonymity to a party as it is by closure of the trial itself. Doe v. Stegall, 653 F.2d 180, 185 (5th Cir. 1981). 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. The presumption of openness can be overcome by the need to balance a party’s privacy in certain circumstances, and thus a party may be permitted to proceed under an alias. 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).
Once a presumption of access to judicial records has been established, that presumption may be rebutted “when it is demonstrated that suppression is necessary to preserve ‘higher values’ and when the suppression is ‘narrowly tailored’ to serve those interests. . . . Overcoming the presumption, however, is a formidable task. The court must be ‘firmly convinced that disclosure is inappropriate before arriving at a decision limiting access.’” In re Associated Press, 162 F.3d 503, 506 (7th Cir. 1998) (citing Grove Fresh Distribs., Inc. v. Everfresh Juice Co., 24 F.3d 893, 897 (7th Cir. 1994)); see Press-Enterprise Co. v. Superior Court, 464 U.S. 501, 510 (1984); United States v. Blagojevich, 612 F.3d 558, 563 (7th Cir. 2010) (finding the “presumption in favor of disclosure . . . so far has not been overcome, because the district court did not afford an opportunity to present evidence and did not make any findings of fact”; remanding for further proceedings in media intervention for access to juror names).
In Alabama, in order for a presumptively open criminal proceeding to be closed, a court must make “specific, on-the-record findings demonstrating that closure is essential to preserve higher values and the closure order is narrowly tailored to serve those interests.” Ex parte Birmingham News Co., 624 So. 2d 1117, 1125 (Ala. Crim. App. 1993). Interests that may override the public’s right of access include (1) the defendant’s right to a fair trial, (2) compelling government interests, such as “the government’s interest in inhibiting disclosure of sensitive information,” “the government’s interest in protecting victims of sex crimes from the further trauma and embarrassment of testifying in public,” and “the government’s interest in protecting its witnesses from physical harm” (i.e., where an undercover police officer is involved in an ongoing investigation), and (3) protection of the privacy of persons not before the court. Id.
The Arizona Supreme Court has emphasized that “[d]emocracy blooms where the public is informed and stagnates where secrecy prevails. Only in a case where there is a clear, present threat to the due administration of justice or one which appeals primarily to the morbid and prurient should the right of the public to observe a court proceeding be denied.” Phoenix Newspapers v. Jennings, 107 Ariz. 557, 561, 490 P.2d 563, 567 (1971).
The Arizona Supreme Court has also found that “any order closing the court to the public must be necessitated by a compelling governmental interest and be narrowly tailored to serve that interest.” Ridenour v. Schwartz, 179 Ariz. 1, 3, 875 P.2d 1306, 1308 (1994). “If an order is merely a temporary limitation of access, however, it may be sustained if it is reasonable and neutral.” Id.
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). In Star Journal, the court held that a “judge may close a pretrial hearing only if (1) the dissemination of information would create a clear and present danger to the fairness of the trial; and (2) the prejudicial effect of such information on trial fairness cannot be avoided by any reasonable alternative means.” Id. The Court explained that “mere conjecture and allegations of prejudicial publicity” cannot justify an exclusion order. Id. The judge must “issue a written order setting forth specific factual findings in this regard.” Id.
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”); 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); see also 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 civil cases, C.R.C.P. 121, § 1-5 governs access to court files. The rule provides that the 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 v. Home Ins. Co., 924 P.2d 1123, 1126 (Colo. App. 1996). 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.
In general, the fact that “a court file contains extremely personal, private, and confidential matters is generally insufficient to constitute a privacy interest warranting the sealing of that entire file pursuant to C.R.C.P. 121, § 1-5. Anderson, 924 P.2d at 1127. A “heightened expectation of privacy or confidentiality in court records has been found to exist only in those limited instances in which an accusation of sexual assault has been made, or in which trade secrets, potentially defamatory material, or threats to national security may be implicated.” Id. Likewise, “prospective injury to reputation, an inherent risk in almost every civil lawsuit, is generally insufficient to overcome the strong presumption in favor of public access to court records.” Id.; see also Doe v. Heitler, 26 P.3d 539, 544 (Colo. App. 2001).
For criminal records, the Colorado Criminal Justice Records Act, C.R.S. § 24-72-301, et seq. (“CCJRA”), generally provides for and favors access to certain criminal records but gives the custodian of most criminal justice records considerable discretion to limit access.
The CCJRA distinguishes between records of “official actions” and other “criminal justice records.” An “official action” includes “an arrest; indictment; charging by information; disposition; pretrial or posttrial release from custody; judicial determination of mental or physical condition; decision to grant, order, or terminate probation, parole, or participation in correctional or rehabilitative programs; and any decision to formally discipline, reclassify, or relocate any person under criminal sentence.” C.R.S. § 24-72-302(7). “Criminal justice records” are “all books, papers, cards, photographs, tapes, recordings, or other documentary materials, regardless of form or characteristics, that are made, maintained, or kept by any criminal justice agency in the state for use in the exercise of functions required or authorized by law or administrative rule . . . .” C.R.S. § 24-72-302(4).
There is a strong presumption of openness for records “official actions,” while the openness of other criminal justice records is largely discretionary. Madrigal v. City of Aurora, 2014 COA 67, ¶ 9, 349 P.3d 297, 299 (Colo. App. 2014) (citing C.R.S. §§ 24-72-303, 0304, -305). Freedom Colo. Info., Inc. v. El Paso Cnty. Sheriff’s Dept., 196 P.3d 892, 897 (Colo. 2008) (“When a request is made to inspect a particular criminal justice record that is not a record of an ‘official action,’ the decision whether to grant the request is consigned to the exercise of the custodian’s sound discretion under sections 24-72-304 and -305, C.R.S. (2008).”).
Custodians of records of both official actions and other criminal justice records may “make such rules and regulations with reference to the inspection of such records as are reasonably necessary for the protection of such records and the prevention of unnecessary interference with the regular discharge of the duties of the custodian or his office.” C.R.S. § 24-72-303(1); C.R.S. § 24-72-304(1). However, the Colorado Supreme Court has interpreted the CCJRA to circumscribe a custodian’s discretion regarding disclosure of records of “official actions.” People v. Thompson, 181 P.3d 1143, 1145–46 (Colo. 2008) (“[A] record of official action must be available for public inspection unless one of the two exceptions applies: (1) non-disclosure is required by the CCJRA, or (2) non-disclosure is required by other law. Consequently, the CCJRA does not grant any criminal justice agency, including a court, any discretion as to whether to disclose a record of official action in its entirety, in part, or not at all.”) (citations omitted).
The CCJRA prohibits the disclosure of certain information, including the names or identifying information of sexual assault or child victims (see C.R.S. § 24-72-304), and permits denial of access on “public interest” grounds (see C.R.S. § 24-72-305(1.5) & (5); see also Madrigal, 2014 COA 67, ¶ 10, 349 P.3d at 299.
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. Generally, 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.
In criminal cases, a motion for closure must be supported “by evidence constituting ‘clear and convincing proof’ that no means available other than closure of the hearing will serve to protect the right of the movant.” R.W. Page Corp. v. Lumpkin, 249 Ga. 576, 580 (1982). Georgia law requires that a trial court actually “use,” not just “consider,” alternative means to exclude prejudicial matters, such as jury sequestration, change of venue, postponement of the trial, searching voir dire and clear and emphatic instructions to the jury, as alternatives to closure. Moreover, the court must consider reasonable alternatives sua sponte if none are raised or offered by the parties. Presley v. Georgia, 558 U.S. 209 (2010). A closure order must fully articulate the alternatives to closure and the reasons why the alternatives would not protect the movant’s rights. In Rockdale Citizen Publ’g Co. v. State, 266 Ga. 579, 580 (1996) reversing the closure of a pretrial evidentiary hearing in a capital case, the Georgia Supreme Court emphasized that: “assumptions and speculation can never justify the infringement on First Amendment rights, which the closure of criminal proceedings creates.”
In civil cases, the presumption of openness may be overcome only by a showing of “clear necessity.” Atlanta Journal v. Long, 258 Ga. 410, 413 (1988). The party seeking closure of civil court records based on an assertion of privacy interests must present evidence sufficient to support specific findings of fact demonstrating how privacy interests raised by the particular facts of the case clearly outweigh the public’s right of access. “[I]t is not sufficient for the trial court to forego making findings of fact and simply state that the public’s interest in access to court records is clearly outweighed by potential harm to the parties’ privacy.” In re Atlanta Journal-Constitution, 271 Ga. 436, 438 (1999).
The presumption that courts are open in Kansas can be overcome only if the trial judge “‘affirmatively concludes’” that “‘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 that “‘the prejudicial effect of such information on trial fairness cannot be avoided by any reasonable alternative means.”’ Kansas City Star Co. v. Fossey, 630 P.2d 1176, 1182–83 (Kan. 1981) (quoting Fair Trial and Free Press: Standard 8-3.2 of the American Bar Association’s Standing Committee on Association Standards for Criminal Justice (August, 1978)).
The Mississippi Supreme Court, quoting Press-Enterprise I, has held that the presumption of access to a trial can be overcome only by demonstrating that closure “is essential to preserve higher values and is narrowly tailored to serve that interest.” Miss. Publishers Corp. v. Coleman, 515 So. 2d 1163, 1165 (Miss. 1987) (emphasis added). Such a decision must be supported by “specific, on the record findings of fact which show in what manner the coverage will cause a party to lose the right to a fair trial.” In re WLBT, Inc., 905 So. 2d 1196, 1199 (Miss. 2005).
In a pretrial setting, a preliminary hearing can be closed “only if specific findings are made demonstrating that first, there is a substantial probability that the defendant’s right to a fair trial will be prejudiced by publicity that closure would prevent and, second, reasonable alternatives to closure cannot adequately protect the defendant’s free trial rights.” Id. at 1165-66 (quoting Press-Enterprise II).
“The presumption of openness may be overcome . . . only if the district court identifies a countervailing interest to public access and demonstrates, by specific findings, that closure is necessary and narrowly tailored to serve a higher interest.” Stephens Media v. Eighth Judicial Dist. Court, 125 Nev. 849, 855, 221 P.3d 1240, 1245 (2009). If the district court fails to articulate specific findings supporting closure, the Nevada Supreme Court will grant a petition seeking the reopening of proceedings. See id. (granting petition to release juror questionnaires when district court failed to make specific findings (1) demonstrating concerns regarding juror candor superseded First Amendment presumption of open proceedings and (2) demonstrating no reasonable alternative to closure).
Court Access: Rule 1-104 New Mexico Rules Annotated (“NMRA”) mandates that all courtroom proceedings be open to the public, unless the courtroom is closed automatically for: (1) adoption hearings as set forth in New Mexico Statutes Annotated (“NMSA”) 1978, Section 32A-58(C); (2) proceedings to detain a person with a threatening communicable disease as set forth in NMSA 1978, Section 24-1-15(J); (3) proceedings for testing as set forth in NMSA 1978, Section 24-2B-5.1(B); and (4) pretrial proceedings under the New Mexico Uniform Parentage Act, as set forth in NMSA 1978, Section 40-11A-625.
An agreement of the parties to close the courtroom will not suffice to overcome the presumption of openness. Rule 1-104(A). Rather, the motion for courtroom closure must advance an interest that overrides the public’s interest in attending the proceeding. Rule 1-104(C). If the court determines, on its own initiative, that a proceeding should be closed, the court will file and serve on each party an order to show cause why the proceeding should not be. Id. If, by contrast, a party or any other person or entity with a sufficient interest moves to exclude the public from any portion of the courtroom proceeding, a written motion must be filed and served at least forty-five days prior to the commencement of the proceeding. Opposing parties will be allowed fifteen days after service of the motion to respond, and any member of the public may file a written response at any time before the hearing. Movants will be allowed fifteen days to reply to a written response by a party. Id. An order for closure must be in writing, shall articulate the interest protected and specify the court’s findings underlying the order.
Ultimately, the court may exclude the public to the extent that it finds: (1) such order is necessary to preserve an overriding interest that is likely to be prejudiced if the courtroom is not closed; (2) the order for courtroom closure is narrowly tailored to protect the overriding interest; and (3) the court has considered reasonable alternatives to courtroom closure. Rule 1-104(E).
Court Records: Pursuant to Rule 1-079 NMRA, “court records are subject to public access unless sealed by order of the court.” The following court records shall be automatically sealed without motion or order of the court:
“(1) proceedings commenced under the Adoption Act, Chapter 32A, Article 5 NMSA 1978. The automatic sealing provisions of this subparagraph shall not apply to persons and entities listed in Subsection A of Section 32A-5-8 NMSA 1978;
(2) proceedings to detain a person commenced under Section 24-1-15 NMSA 1978;
(3) proceedings for testing commenced under Section 24-2B-5.1 NMSA 1978;
(4) proceedings commenced under the Adult Protective Services Act, Sections 27-7-14 to 27-7-31 NMSA 1978, subject to the firearm-related reporting requirements in Section 34-9-19 NMSA 1978;
(5) proceedings commenced under the Mental Health and Developmental Disabilities Code, Chapter 43, Article 1 NMSA 1978, subject to the disclosure requirements in Section 43-1-19 NMSA 1978 and the firearm-related reporting requirements in Section 34-9-19 NMSA 1978;
(6) wills deposited with the court pursuant to Section 45-2-515 NMSA 1978 that have not been submitted to informal or formal probate proceedings. The automatic sealing provisions of this subparagraph shall not apply to persons and entities listed in Section 45-2-515 NMSA 1978;
(7) proceedings commenced for the appointment of a person to serve as guardian for an alleged incapacitated person under Chapter 45, Article 5, Part 3 NMSA 1978, as provided in Rule 1-079.1 NMRA;
(8) proceedings commenced for the appointment of a conservator under Chapter 45, Article 5, Part 4 NMSA 1978, as provided in Rule 1-079.1 NMRA;
(9) proceedings commenced to remove a firearm-related disability under Section 34-9-19(D) NMSA 1978, subject to the firearm-related reporting requirements in Section 34-9-19 NMSA 1978; and
(10) proceedings commenced under the Assisted Outpatient Treatment Act, Chapter 43, Article 1B NMSA 1978, subject to the disclosure requirements in Section 43-1B-14 NMSA 1978 and the firearm-related reporting requirements in Section 34-9-19 NMSA 1978.”
Rule 1-079(C) NMRA. A court order must establish that:
“(a) the existence of an overriding interest overcomes the right of public access to the court record;
(b) the overriding interest supports sealing the court record;
(c) a substantial probability exists that the overriding interest will be prejudiced if the court record is not sealed;
(d) the proposed sealing is narrowly tailored; and
(e) no less restrictive means exist to achieve the overriding interest.”
Rule 1-079(G) NMRA. The order shall require the sealing of the record only to the extent necessary. Id. The order shall further specify who is authorized to have access to the sealed court record and a date or event upon which it expires or shall explicitly state that the order remains in effect until further order of the court. The order shall specify any person or entity entitled to notice of any future motion to unseal the court record or modify the sealing order. Id.
“[T]he First Amendment provides a greater right of public access than the common law.” Commonwealth v. Long, 922 A.2d 892, 897 (Pa. 2007). “[T]he common law test requires the trial court to balance the presumption of openness against the circumstances warranting sealing of the document, . . . whereas under the First Amendment the proceedings can be closed only upon showing a compelling government interest and any restrictions must be narrowly tailored to serve that interest . . . .” Id. at 897 n.6 (citations omitted).
As the Pennsylvania Superior Court has explained:
There are two methods for analyzing requests for closure of judicial proceedings, each of which begins with a presumption of openness—a constitutional analysis and a common law analysis. Under the constitutional approach, which is based on the First Amendment of the United States Constitutionand Article I, Section 11 of the Pennsylvania Constitution, the party seeking closure may rebut the presumption of openness by showing that closure serves an important governmental interest and there is no less restrictive way to serve that interest. Under the common law approach, the party seeking closure must show that his or her interest in secrecy outweighs the presumption of openness.
PA Childcare LLC v. Flood, 887 A.2d 309, 312 (Pa. Super. 2005) (quoting Zdrok v. Zdrok, 829 A.2d 697, 699 (Pa. Super. 2003)).
Under the First Amendment, any limitation on the right of access must be “carefully drawn.” Commonwealth v. Hayes, 414 A.2d 318, 322 (Pa. 1980) (citation omitted). Specifically, the right should not be limited unless doing so protects a “compelling state obligation,” and “the threat posed to the protected interest is serious.” Id. (citation omitted); see also Philadelphia Newspapers, Inc. v. Jerome, 387 A.2d 425, 434 (Pa. 1978). Any limitations imposed “should effectively prevent the harms at which they are aimed” and “limit no more than is necessary to accomplish the end sought.” Id.; see Commonwealth v. Curley, --- A.3d ---, 2018 Pa. Super. LEXIS 599, at *10 (June 4, 2018) (explaining that closure must be “narrowly tailored”); see also In re Seegrist, 539 A.2d 799, 803 (Pa. 1988) (“Before closing a judicial proceeding, a trial court must determine that closure will effectively protect the compelling interest endangered by openness and that the information sought to be withheld from public exposure will not be made public anyway.”).
Under the common law, “[w]here the presumption of openness attached to a public judicial document is outweighed by circumstances warranting closure of the document to public inspection, access to the document may be denied.” Commonwealth v. Martinez, 917 A.2d 856, 862 (Pa. Super. 2007) (citing Commonwealth v. Fenstermaker, 530 A.2d 414, 420 (Pa. 1987)). It is “difficult to … access or to identify all the factors to be weighed in determining whether access is appropriate.” Id. (citation omitted). “It is the responsibility of the trial court to determine, in the exercise of informed discretion, whether the common law right of access will outweigh countervailing factors.” Id. (quoting PG Publ’g Co. v. Commonwealth, 566 A.2d 857, 860 (Pa. Super. 1989), aff’d 614 A.2d 1106 (Pa. 1992)).
The Vermont Rules for Public Access to Court Records govern the rights of access by the public to judicial records. See Vt. Pub. Acc. Ct. Rec. Rule 1. Subject to certain enumerated exceptions, “all case and administrative records of the Judicial Branch shall be open to any member of the public for inspection or to obtain copies.” Vt. Pub. Acc. Ct. Rec. Rule 4.
In 2019, the Vermont Supreme Court re-affirmed that under the Rules “all case records are public records presumptively subject to public disclosure unless an exception applies.” In re Vsp-Tk/1-16-18 Shooting Gray TV, 2019 VT 47 ¶ 9 (July 19, 2019). There, the State conceded that none of the exceptions expressly applied, and the Court rejected the State’s attempt to infer a categorical prohibition against disclosure of records relating to inquest proceedings because they are similar to other enumerated exceptions in the Rules regarding search warrants or affidavits of probable cause. Id. at ¶¶ 23-25.
Similarly, Vermont court proceedings are presumptively open to the public, “closure being the exception rather than the rule.” State v. Tallman, 148 Vt. 465, 474, 537 A.2d 422, 427-28 (Vt. 1987). “To rebut the presumption of openness, the party seeking closure must demonstrate ‘that closure is essential to preserve higher values and is narrowly tailored to serve that interest.’” Id. (citation omitted); see also Herald Ass’n v. Ellison, 138 Vt. 529, 534, 419 A.2d 323, 326 (Vt. 1980) (“any pretrial closure order imposed in this jurisdiction must be based on a clear necessity for the protection of the defendant’s fair trial rights and must be limited in scope by its justification”). “Criminal proceedings may be closed to the public without violating First Amendment rights only if (1) closure serves a compelling interest; (2) there is a ‘substantial probability’ that, in the absence of closure, that compelling interest would be harmed; and (3) there are no alternatives to closure that would adequately protect that compelling interest.” State v. Densmore, 160 Vt. 131, 138, 624 A.2d 1138, 1142 (Vt. 1993); see also Press-Enterprise Co. v. Superior Court (Press-Enterprise II), 478 U.S. 1, 13-14 (1986).
The common law provides a default presumption of access to all judicial records. See Shenandoah Pub. House, Inc. v. Fanning, 235 Va. 253, 262 n.3, 368 S.E.2d 253, 257 n.3 (1988) (“There is no question that the press and the public jointly possess a common-law right to inspect and copy judicial records and public documents.”); Smith v. Richmond Newspapers, Inc., 261 Va. 113, 117, 540 S.E.2d 878, 880 (2001) (noting the “the generally accepted common-law rule of openness of judicial proceedings and judicial records”). The Virginia Supreme Court has never distinguished between the burden to overcome a common law presumption from the burden to overcome a constitutional presumption. However, the Fourth Circuit has held that a party seeking to overcome the common law presumption of access bears the burden of showing some countervailing interest that outweighs the public interests in access. Rushford v. New Yorker Magazine, Inc., 846 F.2d 249, 253 (4th Cir. 1988); see also In re U.S. for an Order Pursuant to 18 U.S.C. Section 2703(D), 707 F.3d 283, 293 n.12 (4th Cir. 2013) (“[T]o overcome the common law presumption of access, the government's interests must merely outweigh the public's interest.”). Some of the factors to be weighed in the common law balancing test include whether the records are sought for improper purposes, such as promoting public scandals or unfairly gaining a business advantage; whether release would enhance the public’s understanding of an important historical event; and whether the public has already had access to the information contained in the records. Virginia Dep't of State Police v. Washington Post, 386 F.3d 567, 575 (4th Cir. 2004) (quoting In re Knight Publ. Co., 743 F.2d 231, 235 (4th Cir.1984)).
In contrast to the common law, the First Amendment right of access only applies to particular proceedings and records, but weighs more heavily in favor of openness. See Stephens v. Cty. of Albemarle, 422 F. Supp. 2d 640, 643 (W.D. Va. 2006) (“Generally speaking, the First Amendment right of access applies to a narrower range of materials, yet weighs more heavily in favor of the public’s right to obtain those sealed documents.”). The standard for overcoming a First Amendment presumption of access is more “rigorous” than the common law standard. In re Washington Post Co., 807 F.2d 383, 390 (4th Cir. 1986). To overcome a First Amendment presumption of access, the moving party must show: (1) that restricting access is necessary to further a compelling governmental interest; (2) that the restriction is narrowly tailored to serve that interest; and (3) that no less restrictive means are available to adequately protect that interest. See Virginia Dep't of State Police, 386 F.3d at 575 (quoting Stone v. Univ. of Maryland Med. Sys. Corp., 855 F.2d 178, 180 (4th Cir. 1988)); In re Knight Pub. Co., 743 F.2d 231, 234 (4th Cir. 1984).
The qualified right of access under Article I, Section 12 of the Virginia Constitution is coextensive with the First Amendment. See Daily Press, Inc. v. Commonwealth, 285 Va. 447, 455 n.7, 739 S.E.2d 636, 640 n.7 (2013) (declining to distinguish between right of access under Article I, § 12 and the First Amendment); see also Elliott v. Commonwealth, 267 Va. 464, 473–74, 593 S.E.2d 263, 269 (2004) (declaring that “Article I, § 12 of the Constitution of Virginia is coextensive with the free speech provisions of the federal First Amendment.”). Accordingly, as with the First Amendment, the public’s right of access under Article I, Section 12 of the Virginia Constitution can only be denied upon a strong showing of a compelling governmental interest, and any closure must be narrowly tailored to serve that interest. Daily Press, Inc., 285 Va. at 455, 739 S.E.2d at 641. For example, if a portion of the record or proceeding is properly sealed or closed, the remaining portions should be open to the public. See Richmond Newspapers, Inc. v. Commonwealth, 222 Va. 574, 589, 281 S.E.2d 915, 923 (1981). Furthermore, closure or sealing must be the least restrictive means of avoiding the perceived danger of public access. See Daily Press, Inc., 285 Va. at 456, 739 S.E.2d at 641.
The statutory presumption of access to court records under Virginia Code § 17.1-208 “is equivalent to the constitutional right of access.” Daily Press, Inc. v. Commonwealth, 285 Va. 447, 456, 739 S.E.2d 636, 641 (2013). The presumption of access to judicial records under § 17.1-208 may only be overcome by an interest “so compelling that it cannot be protected reasonably by some measure other than a [sealing] order, and [ ] any such order must be drafted in the manner least restrictive of the public’s interest.” Shenandoah Pub. House, Inc. v. Fanning, 235 Va. 253, 258-59, 368 S.E.2d 253, 256 (1988).
The proposed closure or sealing must actually operate to prevent the threatened danger of public access. See Daily Press, Inc. v. Commonwealth, 285 Va. 447, 455, 739 S.E.2d 636, 641 (2013) (“First, there was no evidence that publication of the information contained in the exhibits would prejudice Stoffa's right to a fair trial, or that sealing the exhibits would prevent any such prejudice.”).
There may be circumstances where delayed disclosure may strike the appropriate balance between the public’s right of access and competing interests favoring closure. However, the presumption of access to judicial records includes the right to contemporaneously review them. Therefore, absent a compelling interest sufficient to rebut the presumption of access, delayed access violates the public’s right of access. See Daily Press, Inc. v. Commonwealth, 285 Va. 447, 454, 739 S.E.2d 636, 640 (2013) (“Neither the expiration of the sealing order nor the later availability of the exhibits cured this deprivation of the right to contemporaneously review the files.”).
If the party seeking to restrict public access has made an adequate showing to rebut the applicable presumption of access, the burden shifts to the party opposing the motion to show reasonable alternatives to closure or sealing. Perreault v. The Free Lance-Star, 276 Va. 375, 390, 666 S.E.2d 352, 360 (2008). Specific examples of alternatives to closure and sealing cited by the Virginia Supreme Court include change of venue, postponement of trial, and sequestration of jurors. See Shenandoah Pub. House, Inc. v. Fanning, 235 Va. 253, 258–59, 368 S.E.2d 253, 256 (1988) (citing Nebraska Press Assn. v. Stuart, 427 U.S. 539, 563–65 (1976)). The Virginia Supreme Court has also identified “extensive voir dire” and “jury instructions addressing prejudice” as reasonable alternatives. See Daily Press, Inc. v. Commonwealth, 285 Va. 447, 456 n.8, 739 S.E.2d 636, 641 n.8 (2013); see also In re Times-World Corp., 25 Va. App. 405, 418, 488 S.E.2d 677, 683 (Va. Ct. App. 1997) (identifying “properly conducted” voir dire as a reasonable alternative); In re Times-World Corp., 7 Va. App. 317, 328, 373 S.E.2d 474, 479–80 (Va. Ct. App. 1988), abrogated by Hertz v. Times-World Corp., 259 Va. 599, 528 S.E.2d 458 (2000) (“The potential for danger in this situation can be mitigated by instructing the jury, as is routine, to avoid receiving any outside information during any recess.”). See also Harrington v. Roessler, 89 Va. Cir. 366, 2014 WL 10520410, *7 (Fairfax Cir. Ct. Dec. 22, 2014) (granting in part and denying in part motion for protective order governing discovery materials; “this judicial circuit has had extensive experience successfully trying cases that have attracted substantial media attention. There is every reason to believe that the usual tools for preventing jury prejudice—jury questionnaires, jury instructions, a thorough jury selection process, and so on—will also suffice to insure the selection of an impartial jury in the instant case.”).
Because the common law and First Amendment provide different degrees of access and implicate different competing interests, the Fourth Circuit has admonished trial courts to identify the source of the right of access before balancing competing interests. See Virginia Dep't of State Police v. Washington Post, 386 F.3d 567, 576 (4th Cir. 2004); Doe v. Pub. Citizen, 749 F.3d 246, 266 (4th Cir. 2014); Under Seal v. Under Seal, 230 F.3d 1354 (4th Cir. 2000) (remanding in part because district court failed to identify source of public’s right of access). To determine whether a First Amendment right of access exists, the Fourth Circuit applies the experience and logic test articulated by the Supreme Court in Press–Enterprise Co. v. Superior Court, 478 U.S. 1 (1986). See Baltimore Sun Co. v. Goetz, 886 F.2d 60, 64 (4th Cir. 1989). The Supreme Court of Virginia has applied the experience and logic test to conclude that the public does not have a right of access under Article I, Section 12 of the Virginia Constitution to compel testing of evidence in a criminal proceeding. See Globe Newspaper Co. v. Commonwealth, 264 Va. 622, 629–30, 570 S.E.2d 809, 812–13 (2002).
See State v. Ndina, 315 Wis. 2d 653, 761 N.W.2d 612 (Wis. 2003) (addressing Sixth Amendment right to public trial):
A “presumption of openness” exists. The right to a public trial is not, however, absolute. Despite a vast number of cases involving a myriad of fact situations exploring the Sixth Amendment right to a public trial, determining the contours of the right in a particular fact situation remains difficult.
. . .
The Supreme Court has described four values furthered by the Sixth Amendment guarantee of a public trial: “(1) to ensure a fair trial; (2) to remind the prosecutor and judge of their responsibility to the accused and the importance of their functions; (3) to encourage witnesses to come forward; and (4) to discourage perjury.”
. . . .
Closure of a criminal trial is justified when four conditions are met: “(1) the party who wishes to close the proceedings must show an overriding interest which is likely to be prejudiced by a public trial, (2) the closure must be narrowly tailored to protect that interest, (3) alternatives to closure must be considered by the trial court, and (4) the court must make findings sufficient to support the closure.” The case law typically refers to this four-part test as the “Waller test,” referring to the United States Supreme Court’s decision in Waller v. Georgia, 467 U.S. 39 (1984) (fn).
(fn) The test has its origins in First Amendment jurisprudence. SeePress-Enterprise Co. v. Superior Court of California, 464 U.S. 501, 509‑10, 104 Sc.D. 819, 78 L.Ed.2d 629 (1984) (“The circumstances under which the press and public can be barred from a criminal trial are limited.... The presumption of openness may be overcome only by an overriding interest based on findings that closure is essential to preserve higher values and is narrowly tailored to serve that interest. The interest is to be articulated along with findings specific enough that a reviewing court can determine whether the closure order was properly entered.”) (quoted source omitted). See alsoWaller, 467 U.S. at 44‑46, 104 S. Ct. 2210 (stating that the analysis in Press-Enterprise Co. and several predecessor cases “proceeded largely under the First Amendment”).
In comparing the Sixth Amendment right to a public trial with its analogue in First Amendment, the Supreme Court has stated 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.” Waller, 467 U.S. at 46, 104 S. Ct. 2210.