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).
“[T]he presumption in favor of access can only 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.’” In re Providence Journal Co., 293 F.3d 1, 11 (1st Cir. 2002) (quoting Press-Enterprise Co. v. Super. Ct., 464 U.S.501, 510 (1984)).
The First Circuit has referred to the “presumptively paramount right of the public to know” the content of judicial records and has said that it may be overcome for “only the most compelling reasons.” Fed. Trade Comm’n. v. Standard Fin. Mgmt. Corp., 830 F.2d 404, 408 n.4, 410 (1st Cir. 1987); see also United States v. Kravetz, 706 F.3d 47, 59 (1st Cir. 2013).
The balance must be struck “in light of the relevant facts and circumstances of the particular case. The objectors—those seeking to keep the datum hidden from view— “must carry the devoir of persuasion.” Standard Fin. Mgmt. Corp., 830 F.2d at 410–11.
A lesser “good cause” standard applies to the entry of protective orders in civil cases, but nonetheless, “[a] finding of good cause [for protective orders] must be based on a particular factual demonstration of potential harm, not on conclusory statements.” Anderson v. Cryovac Inc., 805 F.2d 1, 7 (1st Cir. 1986).
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. Id. at 916.
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). But see Doe v. Merritt Hosp., L.L.C., 353 F. Supp. 3d 472, 482 (E.D. La. 2018) (holding that the concern of possible future harm to a HIV-affected employment discrimination plaintiff was “outweighed by the public's interest in an open judicial forum and basic fairness to the [defendant’s] employees accused of undertaking discriminatory actions”).
Whether access is sought under the First Amendment or the common law right of access, the party opposing disclosure bears the burden of showing compelling reasons to support confidentiality. In re Morning Song Bird Food Litig., 831 F.3d 765, 772 (6th Cir. 2016) (citations omitted). When the First Amendment right of access applies, the burden on a party seeking closure “is a heavy one: ‘[o]nly the most compelling reasons can justify non-disclosure of judicial records.’” Shane Grp., Inc. v. Blue Cross Blue Shield of Mich., 825 F.3d 299, 305 (6th Cir. 2016) (quoting In re Knoxville News-Sentinel Co., 723 F.2d 470, 476 (6th Cir. 1983)). “[T]he greater the public interest in the litigation’s subject matter, the greater the showing necessary to overcome the presumption of access. Id. at 305 (citing Brown & Williamson Tobacco Corp. v. FTC, 710 F.2d 1165, 1179 (6th Cir. 1983)). The asserted interest in closure may not be based on platitudes, speculation or conjecture, but instead must be identified with specificity. Id. at 307–08. “The proponent of sealing … must ‘analyze in detail, document by document, the propriety of secrecy, providing reasons and legal citations.’” Id. at 305–06 (quoting Baxter Int’l, Inc. v. Abbott Labs., 297 F.3d 544 548 (7th Cir. 2002)).
“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.” Application of Nat’l Broad. Co., 828 F.2d 340, 343 (6th Cir. 1987) (quoting Press-Enterprise Co. v. Superior Court, 464 U.S. 501, 510 (1984)); see also Rudd Equip. Co. v. John Deere Constr. & Forestry Co., 834 F.3d 589, 593 (6th Cir. 2016) (holding that court records should only be sealed when “there is a compelling reason why certain documents or portions … should be sealed … [and] the seal itself must be narrowly tailored to serve that reason”). In the context of sealed court records, the Sixth Circuit has identified a limited category of interests that may be compelling enough to overcome the presumption of openness: (1) national security; (2) trade secrets; (3) fair trial rights of criminal defendants; (4) privacy rights of participants and third parties, especially innocent third parties; (5) privileged information; and (6) “information required by statute to be maintained in confidence.” Id. at 308 (citations omitted); Brown & Williamson, 710 F.2d at 1179.
The burden is not as great when it is the common law right of access that is being analyzed. The common law right of access “may be curtailed if, in the exercise of the court’s sound discretion, [the court] determines that non-disclosure is warranted.” United States v. Dejournett, 817 F.3d 479, 485 (6th Cir. 2016). This discretion “does not, however, imply that the District Court operates without standards.” Id. (quoting Brown & Williamson, 710 F.2d at 1177). This discretion must “be exercised in light of the relevant facts and circumstances of the particular case,” and must identify the “‘relevant facts and circumstances’ justifying non-disclosure…” in the case. Id. (quoting Brown & Williamson, 710 F.2d at 1177). Moreover, the common law right of access “does not reach materials properly submitted to the court under seal or otherwise kept confidential for important policy reasons.” In re Morning Song Bird Food Litig., 831 F.3d 765, 778 (6th Cir. 2016) (citations omitted).
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).
First Amendment right of access
The First Amendment rights of the public and press are not absolute, and the presumption that criminal trials are open to the public may be overcome with the showing of an “overriding interest articulated in findings.” Richmond Newspapers, 448 U.S. at 581. Indeed, a trial judge may, “in the fair administration of justice, impose reasonable limitations.” Id. at 518 n. 18. The U.S. Supreme Court elaborated on this approach in Press-Enterprise II, holding that the overriding interest, necessary to overcome the First Amendment right of access, must be “based on findings that closure is essential to preserve higher values” while also being “narrowly tailored to serve that interest.” Press-Enterprise II, 446 U.S. at 510.
Following Press-Enterprise II, the Eighth Circuit has emphasized the need for lower courts to articulate their findings before closing the courtroom. See, e.g., In re U.S. ex rel. Pulitzer Publ’g Co., 635 F.2d 676, 679 (8th Cir. 1980). Though there have been some exceptions, the Eighth Circuit has reversed multiple rulings that precluded media access when the lower court failed to articulate the reasons for its decision. In one sexual abuse case involving a minor, for example, the Eighth Circuit found that the lower court erred in closing the courtroom during the testimony of allegedly abused children without a hearing or making any findings to support that decision. United States v. Thunder, 438 F.3d 866 (8th Cir. 2006). Although this case involved the defendant’s Sixth Amendment right to a public trial, the court applied the same Press-Enterprise II test applicable in the First Amendment context, consistent with the Supreme Court’s decision in Waller v. Georgia, 467 U.S. 39, 46 (1984). Thunder, 438 F.3d at 867.
Common law right of access
Following the Supreme Court’s decision in Nixon v. Warner Communications, 435 U.S. 589 (1978), the Eighth Circuit has recognized a “common law presumption in favor of public access to judicial records,” but it has “rejected the strong presumption standard adopted by some circuits,” and instead gives deference to the trial court’s findings. United States v. McDougal, 103 F.3d 651 (8th Cir. 1996) (emphasis in original); see also Webster Groves Sch. Dist. v. Pulitzer Publ’g Co., 898 F.2d 1371, 1376 (8th Cir. 1990). In McDougal, an Eighth Circuit panel found the common law right of access did not attach to a videotaped deposition of President Bill Clinton even though it had been played at trial. 103 F.3d at 657. The court also concluded that the circumstances favored keeping the videotape sealed, agreeing with the lower court’s finding that the public already had information about what the tape contained, that releasing it would be inconsistent with the ban on cameras in the courtroom, that tapes had not been released in the cases of other sitting presidents, and that the tape could be potentially misused. McDougal, 103 F.3d at 658–59.
The Eighth Circuit found the common law right of access to a complaint overcome by the need to keep “sensitive business information” confidential. IDT Corp. v. eBay, 709 F.3d 1220, 1221 (8th Cir. 2013). The court affirmed the district court’s decision to seal such information but remanded the case so the district court could either unseal a redacted version of the complaint or explain why sealing the entire complaint was warranted. Id. The court explained that it must balance the public’s interest in access against the party’s interest in maintaining confidentiality and noted that the weight given to the interest in access should comport with the role played by the judicial records “in the exercise of Article III” power and the “value of such information to those monitoring the courts.” Id. at 1224. The court found that since the trial court never adjudicated any claims on the merits, and the complaint thus played “only a negligible role in the performance of Article III duties,” “the weight of the presumption” in favor of access was “low.” Id.
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.
Alaska Administrative Rules 37.5 through 37.8 state that records are presumptively open to the public, subject to specified exceptions and restrictions. These rules generally do not differentiate between the openness of civil and criminal records and are addressed in more detail in subsection VI.I below (Access to civil court records/Other civil court records issues). While they may specify applicable procedures and standards, it should always be borne in mind that insofar as procedures and standards may be required by case law construing a constitutional right of access to judicial proceedings and/or records under the First Amendment, or its state law analogue, art. I, sec. 5, of the Alaska Constitution, these should supersede conflicting, inconsistent or otherwise inadequate measures set out in court rules, or statutes.
That said, according to the Administrative Rules, notwithstanding any other rule to the contrary, the court may, by order, limit access to public information in an individual case record by sealing or making confidential the case file, individual documents in the case file, log notes, the audio recording of proceedings in the case, the transcript of proceedings, or portions thereof, if it finds that the public interest in disclosure by a legitimate interest in confidentiality, including but not limited to risk of injury to individuals; individual privacy rights and interests; proprietary business information; the deliberative process; or public safety. Alaska Admin. R. 37.6(b). In limiting public access, the court must use the least restrictive means that will achieve the purposes of these public access rules and the reasonable needs as set out as the basis for the request, without unduly burdening the court. Alaska Admin. R. 37.6(c). Conversely, the court may, by order, allow access to non-public information in a case or administrative record if the court finds that the requestor’s interest in disclosure outweighs the potential harm to the person or interests being protected, including but not limited to risk of injury to individuals; individual privacy rights and interests; proprietary business information; the deliberative process; or public safety. Alaska Admin. R. 37.7(a). Non-public information includes information designated as confidential or sealed by statute or court rule and public information to which access has been limited under Alaska Admin. R. 37.6.
The Alaska Court of Appeals discussed the constitutional right of access in Renkel v. State, 807 P.2d 1087, 1089 (Alaska Ct. App. 1991), implicitly but not expressly basing its ruling on First Amendment-based judicial access cases with respect to a courtroom closure issue. In that case, the appeals court found that the trial court’s failure to make particularized findings supporting closure of proceedings to the press and public (in that case, during testimony of minor victims) was error that required reversal even in the absence of a specific claim of prejudice flowing from the closure. But the court acknowledged that it was possible to overcome the constitutional presumption of openness. “Despite the fundamental nature of the right to public trial and the vital function it still serves, it is well accepted that the right is not absolute . . . It may be limited by some other overriding interest.” Renkel, 807 P.2d at 1089 (citing Globe Newspaper Co. v. Superior Ct., 457 U.S. 596, 606 (1982) and Richmond Newspapers Inc. v. Virginia, 448 U.S. 555, 581 n. 18 (1980)). The court in Renkel held, as a general rule, that “the broader the closure order becomes, the more compelling the interest sought to be protected must be. Concomitantly, each closure, whether limited or complete, whether based on substantial justification or overriding compelling interest, must be made sparingly on a case-by-case basis in which the judge carefully balances the right of public trial against the interests to be protected by the closure.” Id. at 1091–92. When partially or totally closing the courtroom, the trial judge must: make specific findings so that the record supports a legitimate reason for closure; consider alternatives before ordering closure; and fashion the closure order to be no broader than necessary. Id. at 1092. In a subsequent case, the Court of Appeals rejected a challenge to a conviction based on a courtroom closure, finding that in that case the trial judge had not excluded “all unnecessary people” from the courtroom during the testimony of a child witness, as had been requested, and instead only excluded one family member based on testimony at an evidentiary hearing about the effect of her presence on the child. The appeals court noted that the trial judge preserved the “public nature” of the trial and did make particularized findings, and that his order was limited to one person whom he excluded from the courtroom during the testimony of one witness. Brandon v. State, 839 P.2d 400, 413 (Alaska Ct. App. 1992). In determining that the closure could not be justified without relying on the unconstitutional statute, the appeals court in Renkel noted that the general public, including the press, had been excluded during the testimony of three minor children. “Except that a transcript could be made public upon request, it appears that none of the safeguards of an open trial were maintained.” Renkel, 807 P.2d at 1092. The court found that this was a total closure that could be upheld only upon a showing of a compelling interest supported by findings in the record, and, citing Globe Newspaper Co., that even a partial closure had to be based on particularized findings. Id. It is notable that this ruling was made in the context of what the court characterized as a “particularly difficult case,” involving a tremendous emotional burden being faced by child witnesses. “Nonetheless, the clear holdings of [three US Supreme Court cases including] Globe Newspaper Co. . . . require case specific evidence to provide the special protection sought by the state. Generalized subjective impressions cannot substitute.” Id. at 1094. See also Bright v. State, 875 P.2d 100, 105–110 (Alaska Ct. App 2004), discussed in detail the introductory section I.A above (“This judicial power to restrict or deny public access to court proceedings may be exercised only when unusual circumstances imperil a more important societal value, and then only when alternative measures have been considered and found wanting; strictest scrutiny, specific finding supported in the record, and compelling reasons would be needed to justify decision to conduct trial in prison rather than in regular public courtroom.”).
In State v. Palin, Case No. 3PA-17-02069 Cr., the district court judge presiding over the Veteran’s Court denied the criminal defendant’s motion to exclude the press altogether from Veteran’s Court proceedings involving the son of the state’s former governor. June 11, 2018, Order On Defendant’s Motion to Prohibit or Limit Media Access to Hearing. The court agreed that the Veteran’s Court, “a post-plea, pre-sentence” therapeutic court, was open to the public, as were its files. However, it granted Palin’s motion to exclude cameras from the courtroom during the weekly Veterans’ Court proceedings, due to the unique nature of this alternative, therapeutic court diversion program—which among other things required all current participants in the program to attend regular court sessions and share and report on often intimate matters that would not ordinarily be disclosed, or required to be disclosed, in normal court proceedings, and which required participants to remain in the courtroom during the portion of proceedings involving others, not just during their own cases. The judge subsequently ordered that the initial change of plea proceedings, which entailed an admission of guilt with respect to the underlying criminal charge as a condition of gaining entrance to the diversion program, could be covered with cameras and electronic devices like other such criminal proceedings, but could be conducted separately from the regular Veterans’ Court proceedings at which other participants’ attendance was mandated.
In Natekin v. State, 2011 WL 5904467 (Alaska Ct. App. Nov. 23, 2011), a defendant appealed his conviction contending that the superior court violated his right to a public trial by holding two “confidential” hearings during his trial. Some of the language of this decision would be more problematic if the court’s decision had been dependent upon it, or if this were not an unpublished memorandum decision (meaning that it can be cited for its persuasive value in relation to an issue but not for precedent). The court purported to have a “confidential hearing,” apparently meaning that members of the public were not required to leave but could not talk about what transpired in the proceeding in questions. The motivating factor was preventing premature disclosure of facts coming out during court proceedings concerning attempted bribery of an anticipated witness. The court affirmed the defendant’s conviction without reaching some of the important issues raised by the facts of this case, finding that the trial attorney had not preserved the issues by objecting to the judge’s action at trial. Because of this, Natekin needed to show that the proceedings were marred by obvious error, but could not because, the court said, the record did not plainly show that the two challenged hearings were in fact closed to the public. The court found the language used by the trial judge to be “confusing,” and it distinguished between situations where the courtroom was or was not closed to the public. It found that the judge never asked anyone to leave the courtroom. The court said that “no one raised a ‘public trial’ issue in the superior court. It is perhaps conceivable that Judge Smith took measures to close the courtroom to the public. But the record in front of us suggests that no such measures were taken—and that Judge Smith confined himself to ordering any people who were present not to reveal what they heard in court.” It found that Natekin had not shown enough to overcome the presumption that court proceedings had been conducted in accordance with the law. It should be noted that the only question even raised (without preserving it for appeal) was whether the hearing had been closed or open. No one raised the propriety of purporting to tell individuals that they could not speak about what they heard or saw in the court proceedings, and the case cannot be cited as precedent for or endorsement of this practice, which is a separate question.
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 2003, Connecticut codified the presumption of openness, formally extending it to both civil and criminal courts, as well as records of court proceedings. It also established a procedure courts must follow in order to close proceedings or seal documents.
As of that time: In civil, criminal, and family cases, the court may be closed to the public only if the court concludes that closure “is necessary to preserve an interest which is determined to override the public's interest in attending such proceeding,” after the court “first consider[s] reasonable alternatives to” closure. Conn. R. Super. Ct. (“Practice Book”) § 11-20(c) (civil); id. § 42-49(c) (criminal); id. § 25-59(c) (family). Any closure order “shall be no broader than necessary to protect such overriding interest,” and the parties’ agreement that the court should be closed “shall not constitute a sufficient basis for the issuance of such an order.” Id. § 11-20(c) (civil), id. § 42-49(c) (criminal), id. § 25-59(c) (family).
Probate proceedings (disposition of estates, trusts, whether a person needs a conservator or guardian, or commitment of adults for psychiatric or substance abuse disorder) are open by default, although certain aspects may be subject to closure by statute. Conn. R. Probate P. 16.1. They may be closed if “necessary to preserve an interest that overrides the public interest in open court proceedings,” “there are no reasonable alternatives to closure,” and closure “is no broader than necessary to protect the overriding interest.” Conn. R. Probate P. 16.8(a). The parties’ agreement to close the courtroom cannot suffice to order it closed. Conn. R. Probate P. 16.8(b).
Juvenile delinquency proceedings (adjudicating allegations that children have committed crimes) are closed except as to complaining witnesses. Conn. Gen. Stat. § 54-76h(b).
In federal civil proceedings to which a First Amendment right of access applies (which is most), “the Court must make particularized findings on the record demonstrating the need for [a courtroom closure], and any court closure order shall be narrowly tailored to serve the purpose of the closure.” D. Conn. Local. Civ. R. 5(e)(1)(A). In federal criminal proceedings, the district court may order closure “only if it makes particularized findings on the record that closure is essential to preserve compelling interests, and that the closure is narrowly tailored to serve those interests.” D. Conn. Local Crim. R. 57(b)(1)(A).
Where the First Amendment qualified right of access applies, the government has the burden of demonstrating that denying access to the documents advances a compelling interest and that the denial of access is narrowly tailored to serve that interest. In re N.Y. Times Co., 585 F.Supp.2d 83, 87 n.3 (D.D.C. 2008); Wash. Post v. Robinson, 935 F.2d 282, 288 (D.C. Cir. 1991). If the government can show that keeping the records sealed is “essential to preserve higher values” and “narrowly tailored,” then the records will remain protected. In re N.Y. Times Co., 585 F. Supp. 2d 83, 90 (D.D.C. 2008).
The D.C. Circuit in United States v. Hubbard, 650 F.2d 293, 314 (D.C. Cir. 1980), “identified six factors that might act to overcome this presumption” of public access: (1) the need for public access to the documents at issue; (2) the extent of previous public access to the documents; (3) the fact that someone has objected to disclosure, and the identity of that person; (4) the strength of any property or privacy interests asserted; (5) the possibility of prejudice to those opposing disclosure; and (6) the purposes for which the documents were introduced during the judicial proceedings. Id; see also Johnson v. Greater Southeast Community Hosp. Corp., 951 F.2d 1268 (D.C. Cir. 1991).
The D.C. Circuit has recognized that where there is both a common law right of access and a qualified First Amendment right of access, courts should reach the constitutional issue, and not resolve the case on common law grounds, "because of the different and heightened protections of access that the First Amendment provides over common law rights." In re N.Y. Times Co., 585 F. Supp. 2d 83, n.3 (D.C. Cir. 2008) (quoting Wash. Post v. Robinson, 935 F.2d 282, 288 n.7 (D.C. Cir. 1991)).
In November 2012, the Court of Chancery (Delaware’s equity court) adopted Rule 5.1, which governs the procedure for sealing documents and for lifting any seal.
The Rule begins by recognizing the public’s right of access to judicial records, and that all matters filed with or provided to the Court or are otherwise part of the record are available to the public. Ch. Ct. R. 5.1(a).
The Rule goes on to set forth the procedure for seeking confidential treatment of judicial records. This is by request to the Court for an Order specifying the information or categories of information sought to be sealed, and then establishing “good cause” for confidential treatment (“Confidential Information”). Ch. Ct. R. 5.1(b)(1).
Similarly, the Superior Court (Delaware’s law court) adopted its own Rule 5(g), which also recognizes that all documents filed with the Court are part of the public record. Super Ct. Civ. R. 5(g)(1). To place a document under seal, the party seeking sealing must obtain an Order from the Court, specifying the documents, or portions thereof to be kept under seal. The Court may choose to inspect documents in camera to determine whether good cause exists for sealing. Super. Ct. Civ. R. 5(g)(2).
Both courts require that, if any sealing is permitted, the sealing parties must file a redacted version of the sealed document within five days (in the Court of Chancery) or 30 days (in the Superior Court) of the sealed filing. Ch. Ct. R. 5.1(d); Super. Ct. Civ. R. 5(g)(2). The Court of Chancery does not require redacted versions of documentary exhibits or deposition transcripts. Ch. Ct. R. 5.1(d)(2). There is no similar Superior Court rule.
The rules do not address closing a trial or a hearing or any part thereof. However, the court rules provide that any request for relief must be made by motion. Ch. Ct. R. 7(b); Super. Ct. R.7(b). To be consistent with due process, such motions must be filed in such a way that the public receives notice of the motion and an opportunity to be heard.
On a motion to seal judicial documents, courts must review the substance of the motion to determine whether the movant has carried its burden entitling it to sealing, whether or not anyone has filed an opposition to the motion, in order to ensure that the court serves the public interest as well as the interests of litigants. ADT Holdings, Inc. v. Harris, 2017 WL 4317245 at *2 (Del Ch. Sept. 28, 2017).
There are no rules of court covering procedure for sealing or unsealing in the criminal courts.
District of Columbia
When a constitutional presumption of access applies, a court may close proceedings only after making specific, on-the-record findings: (1) that closure is necessary to further a compelling governmental interest; (2) the closure order is narrowly tailored to serve that interest; and (3) that no less restrictive means are available to adequately protect that interest. Press-Enterprise Co. v. Superior Court (Press-Enterprise II), 478 U.S. 1, 13-14 (1986); see also Press-Enterprise Co. v. Superior Court (Press-Enterprise I), 464 U.S. 501, 510-11 (1984); Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 607 (1982) (access restrictions must be “necessitated by a compelling governmental interest, and . . . narrowly tailored to serve that interest”). The party seeking access restrictions bears the burden of showing the procedure is “strictly and inescapably necessary.” Associated Press v. District Court, 705 F.2d 1143, 1145 (9th Cir. 1983); see also Washington Post v. Robinson, 935 F.2d 282, 288 (D.C. Cir. 1991); Mokhiber v. Davis, 537 A.2d 1100, 1115 (D.C. 1988).
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 Comm’cns, Inc., 435 U.S. 589, 598 (1978) (internal citation omitted); see also Washington Post v. Robinson, 935 F.2d 282, 288 n.7 (D.C. Cir. 1991) (noting that there are “different and heightened protections of access that the first amendment provides over common law rights”). The Supreme Court found it “difficult to distill . . . a comprehensive definition of what is referred to as the common-law right of access or to identify all the factors to be weighed in determining whether access is appropriate,” instead concluding that “the decision as to access is one best left to the sound discretion of the trial court, a discretion to be exercised in light of the relevant facts and circumstances of the particular case.” Nixon, 435 U.S. at 598-99. Both the District Court for the District of Columbia and the D.C. Court of Appeals, however, have indicated that the factors to be weighed in this common law access inquiry should be the familiar six Hubbard factors (see below). Cable News Network, Inc. v. Fed. Bureau of Investigation, No. 17-1167 (JEB), 2019 WL 2408644 at *15 (D.D.C. June 7, 2019); J.C. v. District of Columbia, 199 A.3d 192, 207 (D.C. 2018).
To overcome the presumption of openness in criminal proceedings, a proponent of closure must satisfy the three-part test set forth in Miami Herald Publishing Co. v. Lewis, 426 So. 2d 1, 6 (Fla. 1983) (hereinafter, the “Lewis Test”). That test requires that (1) closure is necessary to prevent a serious and imminent threat to the administration of justice; (2) no alternatives are available, other than change of venue, which would protect a defendant’s right to a fair trial; and (3) closure would be effective in protecting the rights of the accused, without being broader than necessary to accomplish this purpose. Id.
This test is modified for civil proceedings. Barron v. Florida Freedom Newspapers, Inc., 531 So. 2d 113 (Fla. 1988). Under Barron, to overcome the strong presumption of openness in civil proceedings a proponent of closure must satisfy a three-prong test. The first prong requires a proponent to show that closure is necessary “(a) to comply with established public policy set forth in the constitution, statutes, or case law; (b) to protect trade secrets; (c) to protect a compelling government interest [e.g., national security; confidential informants]; (d) to obtain evidence to properly determine legal issues in a case; (e) to avoid substantial injury to innocent third parties [e.g., to protect young witnesses from offensive testimony; to protect children in a divorce]; or (f) to avoid substantial injury to a party by disclosure of matter protected by a common law or privacy right not generally inherent in the specific type of civil proceeding sought to be closed.” Id. at 118. For privacy concerns, “it is generally the content of the subject matter rather than the status of the party that determines whether a privacy interest exists” that permits closure. Id. However, the privacy interest can be negated where “the content of the subject matter directly concerns a position of public trust held by the individual seeking closure.” Id. Second, the court must find that no reasonable alternatives exist to reach the desired result. Id. Finally, if no reasonable alternative exists, then the court must ensure that the means are the least restrictive necessary to accomplish the goal. Id.
The Barron standards also govern access to civil court records. That test has also been applied to criminal cases in which non-parties raise objections, such as ones based on privacy concerns, to disclosure of court records. Post-Newsweek Stations, Fla. Inc. v. Doe, 612 So. 2d 549 (Fla. 1992).
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 qualified right of public access provided in the First Amendment and article I, section 4 of the Hawaii state constitution “can 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.” Oahu Publ’ns Inc. v. Ahn, 133 Hawai’i 482, 496–97, 331 P.3d 460, 474–75 (2014), as corrected (Aug. 5, 2014) (citing Press-Enter. Co. v. Superior Court of Cal., Riverside Cty., 464 U.S. 501, 510, 104 S. Ct. 819, 824, 78 L. Ed. 2d 629 (1984)) (emphasis in original) (some citations omitted).
In Bradbury v. Idaho Judicial Council, 136 Idaho 63, 28 P.3d 1006 (2001), the Idaho Supreme Court adopted the Press-Enterprise “experience and logic” test when evaluating access rights to criminal proceedings. “First Amendment right of access is fundamental to criminal trials . . . [and] attaches in a criminal proceeding where ‘two complementary considerations’ are met. First, experience, ‘whether the place and process have historically been open to the press and general public.’ Second, logic, ‘whether public access plays a significant positive role in the functioning of the particular process in question.’” Bradbury, 136 Idaho at 70–71, 28 P.3d at 1013–14 (internal citations omitted). When this test is met, a qualified First Amendment right of public access attaches. Id.
Indiana Administrative Rule 9 “starts from the presumption of open Public Access to Court Records.” Ind. Admin. Rule 9(a) Commentary. But the rule also “recognizes that there are times when access to information may lead to, or increase the risk of, harm to individuals.” Id. Therefore, although the “[g]eneral access rule” provides that “[a] Court Record is accessible to the public,” Rule 9(G) provides exceptions that limit accessibility to certain types of records. Therefore, to overcome a presumption of openness, first look to Administrative Rule 9(G) to see if the record sought is excluded. Note that you may need to reference other statutes or court rules, as the exceptions under 9(G) often refer to other statutes or court rules. See, e.g., Admin. Rule 9(G)(1)(a) (excluding “entire cases where all Court Records are declared confidential by statute or other court rule”). There are also limited exceptions in which a court record that would otherwise be accessible may be excluded. See Ind. Admin. Rule 9(G)(4).
Similarly, Indiana Code Section 5-14-2-2 provides that “[c]riminal proceedings are presumptively open to attendance by the general public.” If a party files a motion to exclude the general public from a hearing, that party has the burden of proving by clear and convincing evidence that: “(1) dissemination of information about the content of the criminal proceeding and about its record would create a serious and imminent danger to the defendant’s rights; (2) any prejudicial effect created by any such dissemination cannot be avoided by any reasonable alternative means; and (3) there is a substantial probability that the exclusion will be effective in protecting against the perceived harm.” Ind. Code § 5-14-2-6(c). The court may also exclude the general public on its own and bears the same burden. See id.
The Iowa Supreme Court adopted the three-prong test from Justice Blackmun’s dissent in Gannett Co. to govern whether a criminal pre-trial proceeding may be closed. Iowa Freedom of Info. Council v. Wifvat, 328 N.W.2d 920, 925–26 (Iowa 1983) (citing Gannett Co. v. DePasquele, 443 U.S. 368, 441-42 (1979) (Blackmun, J., dissenting)). That three-prong test requires a showing of “substantial probability that (1) irreparable damage to the defendant’s fair-trial right will result from an open hearing; (2) alternatives to closure will not adequately protect the right to a fair trial, and (3) closure will be effective in preventing prejudicial publicity that could deny the defendant’s right to a fair trial.” Id. (citing Gannett, 443 U.S. at 441–42 (Blackmun, J., dissenting)). In adopting this test, the court sought to accommodate a defendant’s right to a fair trial with the protection afforded the freedoms of speech and of the press and while recognizing other practical considerations. Wifvat, 328 N.W.2d at 925–26. Thus, in addition to requiring that the three-part test be satisfied by a movant seeking closure, the court in Wifvat noted two further, optional, prongs that district courts could apply in making closure decisions. Id. at 926. The non-compulsory additional elements announced in Wifvat include: (1) “allowing closure objectors to state their reasons before the court reaches a decision,” and (2) “articulating the reasons for a closure decision on the record.” Id. (citations omitted).
After Press Enterprise II, the Iowa Supreme Court acknowledged that procedural due process rights of notice and opportunity to be heard now are requisites to closure of state court proceedings rather than optional factors. Des Moines Register & Tribune Co. v. Iowa Dist. Ct., 426 N.W.2d 142, 147–48 (Iowa 1988) (stating that “proceedings cannot be closed unless specific findings are made on the record ‘demonstrating that closure is essential to preserve higher values and is narrowly tailored to serve that interest.’” (quoting Press-Enter. Co. v. Superior Court (Press-Enterprise II), 478 U.S. 1, 13–14 (1986))).
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 presumption that the public should have access to court proceedings and records may be overcome if the party seeking closure satisfies a series of requirements set forth by the Kentucky Supreme Court. Lexington Herald-Leader Co. v. Meigs, 660 S.W.2d 658 (Ky. 1983). The party seeking closure must specifically identify a fundamental right that so outweighs the public’s constitutional and common law rights of access that “in no other way can justice be served” but by closure. Lexington Herald-Leader Co. v. Tackett, 601 S.W.2d 905, 906 (Ky. 1980). The party must prove that “the asserted right or interest probably cannot be adequately protected by less restrictive alternatives to closure” and that closure will actually protect the asserted right. Meigs, 660 S.W.2d at 663.
The Louisiana Supreme Court ordered a motion to suppress hearing closed on the defendant’s motion, over a vigorous dissent by then-Justice Dennis (who now serves on the United States Fifth Circuit Court of Appeals), in State v. Birdsong, 422 So.2d 1135 (La. 1982). The Court held that, to justify closing a pre-trial hearing, the defendant “should only have to show a reasonable likelihood of substantial prejudice to his right to a fair trial.” Id. at 1136 (emphasis in original). Subsequent to Birdsong, the United States Supreme Court in Press-Enterprise Co. v. Superior Court (Press-Enterprise II), 478 U.S. 1 (1986), held that a preliminary hearing may be closed to protect fair trial rights 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. . . .” 478 U.S. at 14 (emphasis added).
Apparently trying to finesse the gap between Press-Enterprise II and Birdsong, the Louisiana Second Circuit Court of Appeal has stated that a defendant seeking to close a pre-trial hearing must make a showing that: “(1) His right to a fair trial will likely be prejudiced by conducting the hearing publicly; (2) Alternatives to closure cannot adequately protect his fair trial right; and (3) Closure will probably be effective in protecting against the perceived danger.” State v. Eaton, 483 So.2d 651 (La.App. 1986) (emphasis added).
“Although under appropriate circumstances a court may impound records when publication would impede the administration of justice, the power of impoundment should be exercised with extreme care and only upon the clearest showing of necessity.” Me. Auto Dealers Ass’n v. Tierney, 425 A.2d 187, 189 n.3 (Me. 1981) (citation omitted).
“Because of the presumption that criminal proceedings are to be open to the public, the decision to fully close a courtroom during criminal proceedings must involve an ‘overriding interest,’ and the court must narrowly tailor the closure, both temporally and specifically.” State v. Frisbee, 2016 ME 83, ¶ 22, 140 A.3d 1230 (Me. 2016) (emphasis added). “Thus, before a trial court may fully close a courtroom during a criminal proceeding, the court must assure the following:
(1) the party seeking to close the hearing has advanced an overriding interest that is likely to be prejudiced,
(2) the closure is no broader than necessary to protect that interest,
(3) reasonable alternatives to closing the proceeding have been considered, and
(4) adequate findings have been made to support the closure.”
Id.; see also Roberts v. State, 2014 ME 125, ¶ 24, 103 A. 3d 1031.
“When a party is seeking a partial closure of the courtroom only, or when the trial court determines that a limited restriction is necessary, we will apply a less stringent standard ‘provided the essential purposes of the ‘public trial’ guarantee are served and the constitutional rights of defendants are adequately protected.’” Id. ¶ 23 (emphasis added).
In the context of criminal proceedings, courts have consistently required that parties seeking closure demonstrate that the public’s right to access is overridden by a compelling state interest that cannot be protected by alternative means. E.g., Baltimore Sun Co. v. Colbert, 593 A.2d 224, 230 (Md. 1991) (the “presumption that pretrial proceedings are open to the public can be overcome only by an ‘overriding interest,’ such as an accused’s right to a fair trial”); id. (to overcome presumption, “trial court must find specifically that no reasonable alternative short of closure of the courtroom will protect the defendant’s right to a fair trial”); Buzbee v. Journal Newspapers, Inc., 465 A.2d 426, 427 (Md. 1983) (“the public’s qualified right of access to criminal trials extends to pretrial judicial proceedings in criminal cases”); id. (criminal defendant’s right to impartial jury did not outweigh public’s right to attend pretrial suppression hearing); Patuxent Publ’g Corp. v. State, 429 A.2d 554, 556 (Md. Ct. Spec. App. 1981) (defendant’s right to impartial jury did not outweigh public’s First Amendment right of access to pretrial “gag order” hearing where there were other “lesser and alternative” means for protecting defendant’s Sixth Amendment rights); Erman v. State, 434 A.2d 1030, 1046–47 (Md. Ct. Spec. App. 1981) (affirming denial of defendant’s request for private trial where trial court had “applied a lesser alternative by engaging in sanitizing voir dire examination in which prospective jurors indicated they could ignore media accounts during the trial” and had warned jurors against reading or watching any news reports concerning the trial); see also Baltimore Sun v. Thanos, 607 A.2d 565, 567–68 (Md. Ct. Spec. App. 1992) (requiring trial court to weigh state’s compelling interests in preserving confidentiality of presentence reports against First Amendment presumption of access, and to consider alternatives to broad sealing of report, including further redaction of already redacted report); Hearst Corp. v. State, 484 A.2d 292, 295 (Md. Ct. Spec. App. 1984) (in context of newspaper’s request for access to court file containing names and addresses of jurors in criminal trial, “in order for the trial court to deny the news media access to a criminal trial or criminal case file, the denial must be no broader than necessary to meet a clearly articulated compelling State interest”).
Where a criminal defendant’s argument in support of closure rests on the contention that media access will bias potential jurors and infringe upon the defendant’s Sixth Amendment rights, the Court of Appeals, following the Supreme Court’s directive in Press-Enterprise Co. v. Superior Court, 478 U.S. 1 (1986), has required that the defendant show both that it is “substantially probable” that prejudice would result from an open proceeding and that there are no less restrictive alternatives. Colbert, 593 A.2d at 230; Buzbee, 465 A.2d at 434 (“Prejudice in the context of [the defendant’s motion to exclude the public from a pretrial suppression hearing] means the reasonable probability that an impartial jury could not be impaneled.”).
The same substantial probability of harm to a compelling interest test applies in civil proceedings. Doe v. Shady Grove Adventist Hosp., 598 A.2d 507, 511 (Md. Ct. Spec. App. 1991) (“‘[I]t must be shown that the denial is necessitated by a compelling governmental interest, and is narrowly tailored to serve that interest.’” (citation omitted)); State v. Cottman Transmission Sys., Inc., 542 A.2d 859, 863 (1988) (same). As the Court of Special Appeals made clear in Doe, an action brought by a patient against a hospital for invasion of privacy after disclosure of his AIDS status, the party seeking closure has the burden of showing that the “‘denial [of access] is necessitated by a compelling . . . interest, and is narrowly tailored to serve that interest.’” 598 A.2d at 511 (quoting Cottman Transmission Sys., Inc., 542 A.2d at 863). There, the court found that the plaintiff could proceed as a John Doe because the right of access had been overcome by the plaintiff’s “constitutional right to privacy.” Id. at 512. In addition, the court was unwilling to recognize a right of access where doing so may chill potential plaintiffs from seeking redress in the courts for invasions of privacy relating to their health. Id. at 513.
Similarly, the presumption of access under the Rules can be overcome only upon a showing that a “special and compelling reason exists” to limit access to such records. Md. Rule 16-912(d)(5)(A). Any order limiting access to Case Records 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)(3). In construing the Maryland Rules, courts have relied on First Amendment access law. Sumpter v. Sumpter, 50 A.3d 1098, 1106 (Md. Ct. Spec. App. 2012) (relying in dicta on First Amendment right of access to construe prior version of Rule 16-912). But, in at least some instances, the Rules explicitly permit inspection and copying of records in circumstances where such access would not be required under the First Amendment. Compare, e.g., Group W Television Inc. v. State, 626 A.2d 1032, 1034 (Md. Ct. Spec. App. 1993) (finding no First Amendment right of the press to copy videotape entered into evidence in criminal trial and distinguishing itself from cases where media or public was denied access to court records), with Rule 16-904(a) (providing that “[e]xcept 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”), and State v. WBAL-TV, 975 A.2d 909, 926 (Md. Ct. Spec. App. 2009) (public’s right to access under Rules to DVD evidence included the right to copy DVD).
Proceedings. Where there is a presumption of openness to a certain type of judicial proceeding, Massachusetts courts apply the Supreme Court’s Waller factors to determine whether closure is appropriate: “ the party seeking to close the hearing must advance an overriding interest that is likely to be prejudiced,  the closure must be no broader than necessary to protect that interest,  the trial court must consider reasonable alternatives to closing the proceeding, and  it must make findings adequate to support the closure.” See, e.g., Commonwealth v. Martin, 629 N.E.2d 297, 302 (Mass. 1994) (quoting Waller v. Georgia, 467 U.S. 39, 48 (1984)). The court’s findings “must be particularized and supported by the record.” Boston Herald, Inc. v. Super. Ct., 658 N.E.2d 152, 155 (Mass. 1995) (citations omitted).
In Massachusetts, “[t]he right of public access applies equally to . . . [proceedings in] nontraditional settings.” Id. (citing Commonwealth v. DeBrosky, 297 N.E.2d 496 (Mass. 1973)) (holding that courts must consider the Waller factors before closing an arraignment in a hospital).
Records. “Case records are presumptively public documents unless required by statute, court rule, standing order, or case law to be withheld from public inspection.” Unif. R. Impound. P., Rule 1(a) (Committee Notes); see also New England Internet Cafe, LLC v. Clerk of Super. Ct., 966 N.E.2d 797, 803 (Mass. 2012) (citations and quotation omitted) (“[M]ost judicial records—including transcripts, evidence, memoranda, court orders and, significantly, material relating to the issuance of search warrants (after the warrant is returned)—are presumptively public documents.”).
Whether a right of access to a certain type of court record exists depends on the type of proceeding associated with the records; if there is a right of access to the proceeding, then the court would likely afford the same access to the records. See, e.g., Newspapers of New England, Inc. v. Clerk-Magistrate, 531 N.E.2d 1261, 1265 (Mass. 1988) (citing Press–Enterprise II, 478 U.S. 1, 8 (1986); Press–Enterprise I, 464 U.S. 501, 513 (1984)).
In the civil context, to overcome the constitutional or common law presumption of access to judicial records and files, a party “must show strong countervailing reasons why access should be restricted” and demonstrate “a sufficiently strong interest in support of denying access.” Minneapolis Star & Tribune Co. v. Schumacher, 392 N.W.2d 197, 202, 205–06. Courts apply a balancing test to determine whether the restriction on access is justified and weigh the interests in favor of access, along with the common law presumption of access, against interests supporting the denial of access. Id. at 202–03.
To overcome the constitutional presumption of openness in criminal proceedings: (a) the party seeking closure must demonstrate that there is an “overriding interest” that will be prejudiced if the proceeding remains open to the public; (b) the closure must not be broader than necessary; and (c) the court must consider reasonable alternatives and make findings adequate to support the closure. Christianson v. State, No. A05-1853, 2006 Minn. App. Unpub. LEXIS 1416, at *6–7 (Minn. Ct. App. June 30, 2006) (citing Waller v. Georgia, 467 U.S. 39, 48 (1984)); see also State v. Delacruz, No. A03-129, 2004 Minn. App. LEXIS 104, at *4–5 (Minn. Ct. App. Feb. 3, 2004) (citing Waller, 467 U.S. at 48).
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 courts utilize a “3-step analysis:” to resolve a disclosure challenge under Article II, Section 9:
First, we consider whether the provision applies to the particular political subdivision against whom enforcement is sought. Second, we determine whether the documents in question are “documents of public bodies” subject to public inspection. Finally, if the first two requirements are satisfied, we decide whether a privacy interest is present, and if so, whether the demand of individual privacy clearly exceeds the merits of public disclosure.
Becky v. Butte-Silver Bow Sch. Dist. No. 1. 274 Mont. 131, 136–37, 906 P.2d 193, 196–97 (1995).
In resolving whether a protectable privacy interest exists, the courts use a “two-part test”:
First, we determine whether the person has a subjective or actual expectation of privacy. Next, we evaluate whether society is willing to recognize that expectation as reasonable.
Great Falls Tribune Co. v. Cascade Cty. Sheriff, 238 Mont. 103, 105, 775 P.2d 1267, 1268 (1989).
“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).
In Keene Publishing Corp. v. Cheshire County Superior Court, 119 N.H. 710, 711 (1979), the New Hampshire Supreme Court (the “Court”) stated:
In this State the press has been held to have a State constitutional right, though not unlimited, to gather the news. (citations omitted). To effectuate this right, this court has adopted standards that govern pre-trial criminal hearings and establish a presumption in favor of open judicial proceedings and unsealed court records. Preliminary hearings may be closed to the public or press only if dissemination of information from the proceedings would create a “clear and present danger” to the fairness of the trial and if the prejudicial effect of such information could not be avoided by any reasonable alternative to closure.
In Petition of Keene Sentinel, the Court reaffirmed that the presumption of openness applies to all court records “absent some overriding consideration or special circumstance.” 136 N.H. 121, 128 (1992). To overcome the presumption, the party seeking to seal the records must “demonstrate with specificity that there is some overriding consideration or special circumstance, that is, a sufficiently compelling interest, which outweighs the public’s right of access to those records.” Id.
In Associated Press, Inc. v. State, 153 N.H. 120 (2005), the Court reworked the presumption of openness and adopted the United States Supreme Court’s experience and logic test for determining whether the State constitutional right of access applies to certain court proceedings. It held “that the State constitutional right of access attaches only to those documents that are important and relevant to a determination made by the court in its adjudicatory function in connection with a proceeding to which the State constitutional right of access has attached.” Id. at 134. In so ruling, the Court noted that the common law right of access is more “expansive” because it “applies to ‘those things which are filed in court in connection with a pending case.” Id. at 133 (citing Thomson v. Cash, 117 N.H. 653 (1977)).
Continuing, the Court stated that the legislature could make court records confidential upon filing so long as they “retain their status as presumptively open and the public is afforded procedural safeguards required by the constitutional right of access.” 153 N.H. at 135–36. Those safeguards are required by part I, articles 8 and 22 of the New Hampshire Constitution. They require:
- that the party opposing disclosure of the document demonstrate that there is a sufficiently compelling reason that would justify preventing public access to that document; and
- that the court determine that no reasonable alternative to nondisclosure exists and use the least restrictive means available to accomplish the purposes sought to be achieved.
Associated Press, 153 N.H. at 136.
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.
To overcome the constitutional presumption of access, the party seeking closure must "demonstrat[e] that the public's right to open proceedings [is] outweighed by a countervailing public interest." France v. France, 2011 WL 294051at *6 (N.C. App. 2011). While the trial courts possess the inherent power to make this determination, "[i]n performing the analysis, the trial court must consider alternatives to closure. Unless such an overriding interest exists, the civil court proceedings and records will be open to the public. Where the trial court closes proceedings or seals records and documents, it must make findings of fact which are specific enough to allow appellate review to determine whether the proceedings or records were required to be open to the public by virtue of the constitutional presumption of access." Virmani v. Presbyterian Health Servs. Corp., 350 N.C. 449, 476-77 (1999).
The common law presumption of access may be "modified or repealed by the General Assembly," Gwathmey v. State, 342 N.C. 287, 296 (1995) and by the state supreme court.
The news media’s right to be present at a public hearing is subordinate to the defendant’s right to a fair trial. In order to overcome the presumption of openness in deciding whether to close a preliminary hearing under N.D.C.C. § 29-07-14, the defendant must show that evidence admissible at trial will be offered at the preliminary examination and as a result there is a substantial likelihood of interference with the defendant’s right to a fair trial. If such a showing is made, closure still should not be ordered, unless the trial court finds there are no reasonable alternatives to complete closure.
The Ohio Supreme Court has adopted the Press-Enterprise II test when dealing with the closure of all court proceedings. In doing so, it held “the public’s qualified right of access attaches to those hearings and proceedings in all courts which have historically been open to the public and in which public access plays a significant positive role.” In re T.R., 556 N.E.2d 439, 446 (Ohio 1990). As a result, judges, using their discretion, make closure decisions based on the “totality of the circumstances.” Id. at 453. However, the trial court must state specific reasons justifying the closure. State ex rel. The Repository v. Unger, 504 N.E.2d 37, 40 (Ohio 1986). The trial court must allow the media an opportunity to be heard before closing a court proceeding and must consider factors such as “the nature and weight of the interest to be protected by the closure, the availability of reasonable alternatives that would protect the asserted interest without necessitating closure, and whether the restriction is drawn as narrowly as possible.” Id. Before closing court proceedings, the trial court must articulate a sufficient interest to support closure along with specific findings so a reviewing court can determine whether closure was proper. Id.
Oklahoma cases have recognized that the presumption of openness is merely a presumption; the right of the public to access to judicial proceedings or records is not absolute and can be overcome by narrowly drawn restrictions supported by compelling reasons. See, e.g., Nichols v. Jackson, 2002 OK 65, 55 P.3d 1044; Nichols v. Jackson, 2001 OK CR 35, 38 P.2d 228; Reeves v. State, 1991 OK CR 101, 818 P.2d 495; Shipman v. State, 1982 OK CR 3, 639 P.2d 1248.
“[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 Rhode Island Supreme Court has adopted tests to determine the scope of both the public’s common law and constitutional rights of access to court documents and proceedings. Providence Journal Co. v. Rodgers, 711 A.2d 1131, 1136 (R.I. 1998) (quoting Nixon v. Warner Communications, Inc., 435 U.S. 589, 602 (1978)). In a criminal case where the First Amendment right of access applies, “[a]ccess may be denied when such denial is narrowly tailored to serve a compelling government interest.” Id. at 1135 (quoting Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 606-07 (1982)). Addressing the propriety of a protective order, the Court has held that:
A protective order (1) must be narrowly tailored to serve the interests sought to be protected, (2) must be the only reasonable alternative, (3) must permit access to those parts of the record not deemed sensitive, and (4) must be accompanied by the trial justice’s specific findings explaining the necessity for the order.
State v. Cianci, 496 A.2d 139, 144 (R.I. 1985).
In civil matters, “[c]ourt records are generally public documents and are subject to supervision by the court. . . . Basically, all court documents are public.” Providence Journal Co. v. Clerk of Family Court, 642 A.2d 210, 211 (R.I. 1994). Although the Rhode Island Supreme Court has not addressed what constitutes a “court record,” a decision by the Superior Court adopted the approach that “documents that are filed with the court that reasonably may be relied upon in support of any part of the court’s adjudicatory function are judicial documents.” Dauray v. Estate of Mee, No. PB-10-1195, 2013 WL 372647, at *10, 2013 R.I. Super. LEXIS 19, at *40-41 (R.I. Super. Ct. Jan. 23, 2013) (quoting Rosado v. Bridgeport Roman Catholic Diocesan Corp., 970 A.2d 656, 678 (Conn. 2009)).
Once a document is identified as a “court record,” the scope of the public’s common law right of access is determined according to a balancing test that weighs the competing interests for and against disclosure. See id. at *48-49 (citing Chicago Tribune Co. v. Bridgestone/Firestone, Inc., 263 F.3d 1304, 1311 (11th Cir. 2001) (“[T]he common law right of access requires a balancing of competing interests.”)).
The presumption in favor of open courts only may be overcome by an overriding interest based on specific findings that closure is necessary to preserve "higher values," and the closure must be narrowly tailored to serve that interest. Ex parte Hearst-Argyle Television, Inc., 631 S.E.2d 86, 89, 369 S.C. 69, 74 (S.C. 2006) (citing In re Charlotte Observer, 882 F.2d 850, 852-53 (4th Cir. 1989)); Press-Enterprise Co. v. Superior Court of California, 478 U.S. 1, 13-14 (1986) (Press Enterprise II)); In re Knight Publ’g Co., 743 F.2d 231, 234 (4th Cir. 1984) (citing Press-Enterprise Co. v. Superior Court, 464 U.S. 501, 510 (1984) (“Press Enterprise I”)). One higher value may be a criminal defendant’s Sixth Amendment right to a fair trial by an impartial jury, but the trial judge must carefully weigh the competing interests.
The Supreme Court of South Dakota has stated:
Procedurally, a trial court in closing a proceeding must both articulate the countervailing interest it seeks to protect and make findings specific enough that a reviewing court can determine whether the closure order was properly entered. Substantively, the record before the trial court must demonstrate an overriding interest based on findings that closure is essential to preserve higher values and is narrowly tailored to serve that interest.
Rapid City Journal v. Delaney, 2011 S.D. 55, ¶ 21, 804 N.W.2d 388, 395–96 (quoting Publicker Indus., Inc. v. Cohen, 733 F.2d 1059, 1071 (3d Cir. 1984)).
In the First Amendment context, an intermediate Texas court of appeals has recognized that “to pass constitutional muster and overcome the presumption of openness, a trial court must: (1) identify an overriding or compelling interest; (2) make findings, sufficiently specific for review, that the exclusion of the public and/or media is essential to preserve higher values; and (3) consider whether alternatives to total exclusion or closure are available in order to narrowly tailor the solution to serve the identified interest or value.” Houston Chronicle Publ’g Co. v. Crapitto, 907 S.W.2d 99, 105 (Tex. App.—Houston [14th Dist.] 1995, orig. proceeding) (quoting Press-Enterprise Co. v. Superior Court, 464 U.S. 501, 509–11 (1984)). For closure to survive review, the trial court must do more than merely articulate the interest that it is attempting to protect through closure, but must instead explain how closure would protect that interest. See id. at 105–06. Likewise, the court must entertain alternatives to closure on the record. See id. at 106.
Rule 4-202.04 of the Utah Rules of Judicial Administration states:
In deciding whether to allow access to a court record or whether to classify a court record as private, protected or sealed, the court may consider any relevant factor, interest or policy presented by the parties, including but not limited to the interests described in Rule 4-202. In ruling on a motion under this rule the judge shall:
(A) make findings and conclusions about specific records;
(B) identify and balance the interests favoring opening and closing the record; and
(C) if the record is ordered closed, determine there are no reasonable alternatives to closure sufficient to protect the interests favoring closure.
Utah R. Judicial Admin Rule 4-202.04(3); see also Tillotson v. Van Nederveen Meerkerk, 2015 UT App 142, ¶ 6, 353 P.3d 165 (“‘[C]ourt records are public unless otherwise classified by this rule.’” (quoting Utah Code Jud. Admin. 4-202.02(1)). However, the Utah Supreme Court also has noted that the public’s “right to know” is not absolute and is subject to an “implied rule of reason.” KUTV Inc. v. Utah State Bd. of Educ., 689 P.2d 1357, 1361 (Utah 1984).
An agency seeking to withhold records bears the burden to overcome the strong presumption that government records are open to inspection. Id. at 1361-62; see also, e.g., Deseret News Publ’g Co. v. Salt Lake Cty., 2008 UT 26, ¶ 53, 182 P.3d 372 (government agency failed to carry its “burden of proving that it properly classified sexual harassment investigative report as nonpublic”); Schroeder v. Utah Attorney Gen. Office, 2015 UT 77, ¶ 27, 358 P.3d 1075 (because government agency “ha[d] . . . not carried its burden to rebut GRAMA’s presumption favoring disclosure[,] . . . Mr. Schroeder must be granted access to [the] bank records” lawfully seized by State during criminal investigation).
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).
Limitations on access under the state’s constitutional provisions may be permitted when the following five-prong analysis (commonly referred to as the Bone-Club or Ishikawa analysis) is conducted:
1) the proponent of closure or sealing must make some showing of the need for doing so, and where that need is based on a right other than an accused’s right to a fair trial, the proponent must show a "serious and imminent threat" to that right;
2) anyone present when the closure motion is made must be given an opportunity to object to the closure;
3) the proposed method for curtailing open access must be the least restrictive means available for protecting the threatened interests;
4) the court must weigh the competing interests of the proponent of closure and the public; and
5) the order must be no broader in its application or duration than necessary to serve its purpose.
Seattle Times Co. v. Ishikawa, 97 Wn.2d 30, 36–39 (1982); State v. Bone-Club, 128 Wn.2d 254, 258–59 (1995).
As the U.S. Supreme Court has recognized, and West Virginia courts have reiterated, where a constitutional presumption of access applies, the court may close proceedings only after making specific, on-the-record findings: (1) that closure is necessary to further a compelling governmental interest; (2) the closure order is narrowly tailored to serve that interest; and (3) that no less restrictive means are available to adequately protect that interest. Press-Enterprise Co. v. Superior Court (Press-Enterprise II), 478 U.S. 1, 13–14 (1986); see also Press-Enterprise Co. v. Superior Court (Press-Enterprise I), 464 U.S. 501, 510–11 (1984); Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 607 (1982) (access restrictions must be “necessitated by a compelling governmental interest, and. . . narrowly tailored to serve that interest”); see also State ex rel. Garden State Newspapers v. Hoke, 205 W.Va. 611, 520 S.E.2d 186, 190 (1999), Harper v. Elk Run Coal Co., Inc., 2012 WL 19999429 (unpublished opinion).
The common law right of access generally is less absolute than the constitutional right—at times bowing, for example, to the less 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 U.S. Supreme Court found it “difficult to distill . . . a comprehensive definition of what is referred to as the common-law right of access or to identify all the factors to be weighed in determining whether access is appropriate,” instead concluding that “the decision as to access is one best left to the sound discretion of the trial court, a discretion to be exercised in light of the relevant facts and circumstances of the particular case.” Id. at 598–99.
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.