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B. Overcoming a presumption of openness

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  • 4th Circuit

    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.”)).

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  • Pennsylvania

    “[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)).

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  • Vermont

    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.  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).

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  • Virginia

    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).

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