B. Procedure for requesting access in criminal cases
Neither the Supreme Court nor the Second Circuit have specified an exact method by which a party must request access. In general, however “courts have widely recognized that the correct procedure for a non-party to challenge a protective order is through intervention for that purpose.” United Nuclear Corp. v. Cranford Ins. Co., 905 F.2d 1424, 1427 (10th Cir. 1990) (citing Public Citizen v. Liggett Group, Inc., 858 F.2d 775, 783 (1st Cir. 1988)); see also In re Associated Press, 162 F.3d 503, 507 (7th Cir. 1998) (intervention is the “most appropriate procedural mechanism” for challenging closure orders); Hertz v. Times-World Corp., 528 S.E. 2d 458, 463 (Va. 2000) (mandamus was erroneously granted because intervention provided adequate remedy at law). Within the Second Circuit, in particular, the Southern District of New York has stated that a "motion to intervene to assert the public's First Amendment right of access to criminal proceedings is proper." United States v. All Funds on Deposit at Wells Fargo Bank, 643 F. Supp. 2d 577, 580 (S.D.N.Y. 2009). Depending on the court's local rules, and the individual rules of the judge, the movants-intervenors may be scheduled for oral argument. A court may grant a motion to intervene but deny the motion to unseal. In such a case, the movants-intervenors may appeal.
“[F]ull protection” for the right of access to judicial proceedings and records “requires adequate notice of any limitation of public access to judicial proceedings or documents and an adequate opportunity, under the circumstances of the case, to challenge that limitation by stating to the court the reasons why the material should remain subject to public scrutiny.” In re Associated Press, 162 F.3d 503, 507 (7th Cir. 1998). “According such full protection also requires that the issue be examined in a procedural context that affords the court an opportunity for due deliberation.” Id. (citing Central Nat'l Bank v. United States Dep't of Treasury, 912 F.2d 897, 900 (7th Cir.1990)).
Accordingly, “[i]n this circuit, we have intimated that the most appropriate procedural mechanism by which to accomplish this task is by permitting those who oppose the suppression of the material to intervene for that limited purpose.” Id. (citing United States v. Andreas, 150 F.3d 766, 767 (7th Cir. 1998)); see also United States v. Blagojevich, 612 F.3d 558, 559 (7th Cir. 2010) (“The Federal Rules of Criminal Procedure lack a counterpart to Fed. R. Civ. P. 24, which allows intervention. But courts have permitted intervention when the potential intervenor has a legitimate interest in the outcome and cannot protect that interest without becoming a party”) (citing In re Associated Press, 162 F.3d at 507-08). “Once the judge not only flags an issue as important but also sets a schedule for its resolution, the time has come to intervene”; if people potentially affected “receive notice that the court will hold a hearing to address a particular question, they must participate rather than wait and see what the court does.” Id. at 561.
“Once the judge not only flags an issue as important but also sets a schedule for its resolution, the time has come to intervene”; if people potentially affected “receive notice that the court will hold a hearing to address a particular question, they must participate rather than wait and see what the court does.” United States v. Blagojevich, 612 F.3d at 561; United States v. Troup, 2012 WL 3818242, at *2 (N.D. Ind. Aug. 31, 2012) (“Generally, a motion for closure should be docketed publically [sic] and reasonably in advance of any hearing or other disposition—far enough in advance, at least, to give the public a meaningful opportunity to intervene”).
Although Holland v. Eads, 614 So. 2d 1012 (Ala. 1993), was a civil case, the Supreme Court of Alabama’s holding with regard to the correct procedure for requesting access does not appear to be limited to only civil cases. In Holland, the Court held that “a motion to intervene is the procedurally correct means to seek the opening of a sealed court file.” 614 So. 2d at 1014. More informal approaches, such as sending a letter to the judge, may also be acceptable in Alabama.
Although there are no published decisions or rules delineating the proper method to request access in a criminal case, the typical practice is to file a motion for leave to intervene for the limited purpose of securing access.
If the request is for camera coverage, the media organization must submit a timely request pursuant to Arizona Supreme Court Rule 122.
Media organizations are entitled to notice and a hearing before a typical court proceeding is closed. In California state court, a trial court must provide notice of closure either by the formal announcement that a hearing on closure will be held or by publicly docketing a written filing requesting closure. The court must then hold a hearing before it can close proceedings, and the media may participate if they are adversely affected. NBC Subsidiary (KNBC-TV), Inc. v. Superior Court, 20 Cal. 4th 1178, 980 P.2d 337, 86 Cal. Rptr. 2d 778 (1999).
With regard to records, the California Rules of Court, Rule 2.551(h), provides that “[a] party or member of the public may move, apply, or petition, or the court on its own motion may move, to unseal a record.” (Emphasis added.) That rule also provides that a “[n]otice of any motion, application, or petition to unseal must be filed and served on all parties in the case.” Id. This rule applies in criminal cases. Alvarez v. Superior Court, 154 Cal. App. 4th 642, 647, 64 Cal. Rptr. 2d 854 (2007).
In practice, members of the media or others requesting access to sealed documents have attempted to unseal records in an ongoing matter by filing informal letter requests, formal motions, or both. See Mercury Interactive Corp. v. Klein, 158 Cal. App. 4th 60, 70, 70 Cal. Rptr. 3d 88 (2007) (both); Sorenson v. Superior Court, 219 Cal. App. 4th 409, 420-422, 161 Cal. Rptr. 3d 794 (2013) (same, in a closed matter). The media also may be allowed to participate as amici in proceedings addressing sealing questions. Overstock.com, Inc. v. Goldman Sachs Group, Inc., 231 Cal. App. 4th 471, 489, 180 Cal. Rptr. 3d 234 (2014). In Overstock, the Court of Appeal disapproved of formal third-party intervention by the media. Id.; see also Mary R. v. B. & R. Corp., 149 Cal. App. 3d 308, 315, 196 Cal. Rptr. 871 (1983) (affirming denial of motion to intervene to seek unsealing of court records because it related to an ancillary matter). Compare In re Marriage of Burkle, 135 Cal. App. 4th 1045, 1050, 37 Cal. Rptr. 3d 805 (2006) (noting that trial court granted non-party media entities’ motion to intervene to seek unsealing of records).
One California court has also stated that a media member could initiate an original proceeding in a reviewing court, by way of a petition for writ of mandate, to “compel the lower court to unseal records that were improperly sealed.” Although procedurally unusual, a media litigant who brings a successful writ original petition may be able to obtain an award of attorney’s fees “under suitable circumstances.” Savaglio v. Wal-Mart Stores, Inc., 149 Cal. App. 4th 588, 603, 57 Cal. Rptr. 3d 215 (2007).
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.
In criminal cases, any person may request to inspect criminal justice records, including court records, under the Colorado Criminal Justice Records Act (“CCJRA”). C.R.S. § 24-72-301(2). The act, in conjunction with Chief Justice Directive 05-01, as amended, which contains the Colorado Judicial Department’s Public Access to Court Records policy (“Public Access Policy”) (pdf), identifies the Clerk of Court as the custodian of criminal justice records. If a clerk denies access to any criminal justice record, the applicant may request a written statement of the grounds for denial, which must be provided to the applicant within 72 hours. C.R.S. § 24-72-305(6). The applicant may also apply to the district court of the district where the record is found “for an order directing the custodian of such record to show cause why said custodian should not permit the inspection of such record.” C.R.S. § 24-72-305(7). The court must hold a hearing on the application “at the earliest practical time.” C.R.S. § 24-72-305(7). “Unless the court finds that the denial of inspection was proper, it shall order the custodian to permit such inspection and, upon a finding that the denial was arbitrary or capricious, it may order the custodian to pay the applicant’s court costs and attorney fees in an amount to be determined by the court.” C.R.S. § 24-72-305(7). The court may also order the custodian to pay a daily penalty of up to $25 per day. C.R.S. § 24-72-305(7).
The recognized practice is for the news media to intervene in the action where the sealing occurred for the limited purpose of challenging the sealing or closure order. Such practice has the advantage of allowing the trial judge the opportunity to consider the closure in the light of unfolding circumstances of the case. The judge is positioned to consider what alternatives to closure may be appropriate. Also, allowing the press to intervene gives the trial judge the benefit of argument by an advocate of First Amendment interests. Gannett Co., Inc. v. State, 565 A.2d 895, 898-99 (Del. 1989).
District of Columbia
Third parties may request access to federal court materials in criminal cases pursuant to Local Criminal Rule 57.6. See United States v. George, 1992 U.S. Dist. LEXIS 16882 at *1 (D.D.C. Jul. 23, 1992) (concerning the Washington Post’s request for access to voir dire questionnaires in a criminal case). The relevant rule provides:
“Any news organization or other interested person, other than a party or a subpoenaed witness, who seeks relief relating to any aspect of the proceedings in a criminal case shall file an application for such relief in the Miscellaneous Docket of the Court. The application shall include a statement of the applicant’s interest in the matter as to which relief is sought, a statement of facts and a specific prayer for relief. The application shall be served on the parties to the criminal case and shall be referred by the Clerk to the trial judge assigned to the criminal case for determination.” Id.
We are not aware of a similar rule in the D.C. Courts. The Court of Appeals, however, has endorsed intervention in a criminal case as an appropriate means of obtaining access to case materials. In re Jury Questionnaires, 37 A.3d 879, 884 (D.C. 2012).
Florida courts have not established a particular method to be used for objecting to closure motions or orders. Limited intervention, motions seeking access, and written and oral responses to closure motions may be options, depending on the circumstances. Motions to seal are governed by the procedures in Florida Rule of Judicial Administration 2.420. Telephonic hearings are also available under the procedures established in Rule of Judicial Administration 2.530.
Public access to Georgia criminal records and proceedings is presumed. Where access to a criminal record or proceeding has been curtailed or foreclosed, members of the press or public are entitled to intervene to request access. See, e.g., R.W. Page Corp. v. Lumpkin, 249 Ga. 576 (1982).
The trial court has an affirmative duty to notify the public when contemplating closure and to provide opportunity for objections and reasons for the closure. If a court is contemplating closure of a proceeding, “it must provide a reasonable opportunity for the public to object,” and “the press and the general public must be given an opportunity to be heard on the question of their exclusion.” Oahu Publ’ns v. Ahn, 133 Hawai’i 482, 497, 331 P.3d 460, 474 (2014) (quoting Globe Newspaper Co. v. Superior Court for Norfolk Cnty., 457 U.S. 596, 609 n.5 (1982)).
If this opportunity is not provided or if the reasons provided are insufficient, Hawaii courts allow third-party members of the public or media to petition for mandamus and/or prohibition to the state supreme court, both to protest a closure made without notice or opportunity to object, and to appeal the substance of a closure order made after such notice and opportunity. Ahn, 133 Hawai’i at 493 & n.13, 331 P.3d 471; see also Gannett Pac. Corp. v. Richardson, 59 Haw. 224, 227, 580 P.2d 49, 53 (1978).
If access to a closed criminal proceeding is sought, a request to the trial judge for a hearing under Press-Enterprise should be made as soon as possible. If access to criminal records is sought, a request under Idaho Courts Administrative Rule 32 should be made. See http://www.isc.idaho.gov/icar32. Under this rule,
Any person desiring to inspect, examine or copy physical records shall make an oral or written request to the custodian. If the request is oral, the custodian may require a written request. The custodian may request contact information as provided in I.C. § 74-102. A request for public records and delivery of the public records may be made by electronic mail. The request must clearly identify each record requested so that the custodian can locate the record without doing extensive research and continuing request for documents not yet in existence will not be considered. The custodian may provide the requester information to help the requester narrow the scope of the request or to help the requester maker the request more specific when the response to the request is likely to be voluminous.
The Access to Public Records Act details the procedure for obtaining access to court cases. The request for records may be made orally or in writing. See Ind. Code § 5-14-3-9(b), (d). But see Ind. Code § 5-14-3-3(a) (agency has discretion to require request to be in writing or in a form provided by the agency). Note that if the request is made orally, the agency may deny the request orally. Ind. Code § 5-14-3-9(c).
The requester may renew the oral request in writing. See Ind. Code § 5-14-3-9(d). If a written request is denied, the denial must be in writing and include a statement of the specific exemption authorizing the withholding of all or part of the public record and the name and the title or position of the person responsible for the denial. Ind. Code § 5-14-3-9(d). The statute does not address later steps, short of an advisory opinion by the public access counselor or litigation.
Any requests, whether oral or written, must identify with reasonable particularity the record being requested. Ind. Code § 5-14-3-3(a)(1); see also Anderson v. Huntington Cty. Bod. Of Commr’s, 983 N.E.2d 613, 617–19 (Ind. Ct. App. 2013) (holding that the county board had no legal obligation to produce the documents as requested when the request was not reasonably particular). “Whether a request identifies with reasonable particularity the record being requested turns, in part, on whether the person making the request provides the agency with information that enables the agency to search for, locate, and retrieve the records.” Anderson, 983 N.E.2d at 34.
Indiana Code Section 5-14-2-2 provides that “[c]riminal proceedings are presumptively open to attendance by the general public.” A court may not order exclusion of the general public from any criminal proceeding “unless it first affords the parties and the general public a meaningful opportunity to be heard on the issue of any proposed exclusion.” Ind. Code § 5-14-2-3. 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 and bears the same burden. See id. If the burden of proof has been satisfied, it may grant the motion, but the exclusion must be reasonably limited and temporary. Ind. Code § 5-14-2-6(e).
Whenever a motion to exclude is filed, or if the court proposes to exclude sua sponte, the court must set a hearing date set sufficiently in advance so that the parties or the public may prepare. Ind. Code § 5-14-2-4. However, the hearing date may not be extended so that it imposes an unreasonable delay. Id. The court must notify the parties of the hearing date and notify the general public by posting a copy of the notice “at a place within the confines of the court accessible to the general public.” Ind. Code § 5-14-2-5.
Note that nothing in Indiana Code Chapter 5-14-2 “affect[s] the inherent power of a court to make limited exclusions of witnesses, to relieve overcrowding, to protect the order and decorum of the courtroom, or to exclude those individuals whose presence constitutes a direct threat to the safety of the spectators, parties, or witnesses.” See Williams v. State, 690 N.E.2d 162, 168, 170 (Ind. 1997) (holding that requiring each person who the officer at the door did not know to show identification and sign in did not exclude anyone and that a court must weigh the benefits of protecting courtroom security with the burdens to the defendant, the press, and the public when considering an identification procedure); Kendrick v. State, 661 N.E.2d 1242, 1244 (Ind. Ct. App. 1996) (remanding to the trial court with instructions to enter specific findings supporting its order to close the courtroom when the informant feared for his life).
Intervention is an appropriate procedure to allow the press the opportunity to present arguments in favor of access to court records and proceeding. E.g., Des Moines Register & Tribune Co. v. Iowa Dist. Ct., 426 N.W.2d 142 (Iowa 1988); Iowa Freedom of Info. Council v. Wifvat, 328 N.W.2d 920 (Iowa 1980); In re Search Warrant for Secretarial Area Outside Office of Gunn, 855 F.2d 569, 572 (8th Cir. 1988). In addition, depending upon the court or presiding judge, a representative of the press may be allowed to appear informally to make an access motion.
The Kansas Judicial Branch’s website includes information about gaining access to state district and appellate courts, and a central resource is the Kansas Office of Judicial Administration. The judicial administrator’s responsibilities include providing public information about the courts. See You and the Courts of Kansas, at: http://www.kscourts.org/kansas-courts/general-information/you-and-the-courts/default.asp.
News reporters are accustomed to routinely entering Kansas courthouses and attending court proceedings, and they typically submit requests to court clerks for records. However, the routine can be broken if reporters are inside a courtroom and a judge orders them out. In that event, reporters must be prepared to raise an objection. For example, a newspaper reporter’s objection to closure of a courtroom led to the key Kansas precedent, Kansas City Star Co. v. Fossey, 630 P.2d 1176 (Kan. 1981), on access to courts. The reporter, who worked for the Kansas City Times, heard the trial judge indicate in open court that he would exclude the public and the media from a hearing on whether to suppress certain evidence. Along with two other reporters, the Times reporter stood and identified herself. She then read a statement objecting to closure of the hearing. The Times had prepared and given her the statement for use on just such an occasion. Reading the statement, the reporter requested that the judge hold a hearing on whether to close the courtroom and summarized legal standards for closing a criminal proceeding. The judge rejected the request, closed the courtroom and conducted the suppression hearing.
The next day, the Kansas City Star Company, which owned the Times, used legal process to request access. The newspaper moved to intervene and vacate the closure order. The judge declined to vacate the order. Soon thereafter, in response to the Star Company’s filing of an original proceeding in mandamus, the Kansas Supreme Court ruled that openness of Kansas courts henceforth would be presumed. Fossey, 630 P.2d at 1181–84. Filing a motion to intervene long has been an accepted method in Kansas of challenging a trial judge’s closure of proceedings and seeking access.
News reporters in Kansas, like in other states, have learned to be alert if they are present when a judge considers a closure order. Reporters generally have been advised to be prepared to stand, respectfully request to be heard, and voice an objection. Following is a statement of objection that illustrates the kind a Kansas reporter may make:
"I am (name), a reporter for (name of news organization). On behalf of both myself and my organization, I respectfully object to closure of this proceeding to the public and the media, and I request an opportunity to be heard through counsel before any closure is ordered.
I understand that, under the First Amendment to the United States Constitution (and, if in state court, the state Constitution), the public and the media rightfully may attend court proceedings. At the very least, the law requires that a hearing be held before closure may be ordered. I respectfully request an opportunity to arrange for counsel to be present at such a hearing."
In Kentucky, the procedures for requesting access in civil cases are the same as in criminal cases. There is a presumption that both criminal and civil court proceedings and records are open and accessible to the public and press, and this presumption generally applies to “everything filed with the courts.” Fiorella v. Paxton Media Grp., LLC, 424 S.W.3d 433, 439 (Ky. Ct. App. 2014). All of Kentucky’s state court proceedings are video/audio recorded, and the recordings are generally available to the public at the court clerk’s office in the same manner that court records are available. The video record is typically available within a few days after a court proceeding. Requests by the media to have cameras in the courtroom may generally be made informally to the presiding judge either orally or by letter.
Kentucky’s general rule is that news media entities do not have access to court records or court proceedings beyond those which are accessible to the general public. However, a common law rule has made the news media an exception to the usual rules regarding standing to intervene in a case in order to seek access or oppose closure as well as standing to seek mandamus where access is denied. In order to seek access to sealed court records or closed hearings, a news media entity ordinarily should file a motion to intervene for the limited purpose of seeking access. This applies to both criminal and civil cases. If the news media entity is denied intervention, refused a hearing, or denied access, the news media entity is permitted immediately to appeal the trial court’s decision to the Court of Appeals by writ of prohibition or mandamus. Courier-Journal & Louisville Times Co. v. Peers, 747 S.W.2d 125, 127–28 (Ky. 1988). Further, a news media entity has the right to appeal a Court of Appeals decision in such a case to the Kentucky Supreme Court. See Kentucky Rule Civ. P. 76.36(7). This is in contrast with most Kentucky Court of Appeals decisions, where the Kentucky Supreme Court exercises discretion whether to hear the appeal.
The news media typically files a motion to intervene in the court where the issue is pending; if the motion is denied, a writ application (equivalent to an interlocutory appeal) may immediately be brought to the Court of Appeal, and, if denied there, to the Supreme Court. Although review by the appellate courts is discretionary, unlike in the federal system the writ process is an integral part of Louisiana appellate practice. For instance, in State v. Widenhouse, 556 So.2d 187 (La. App. 1990), the District Court allowed the news media to intervene and granted partial relief against a sealing order. The news media filed a writ application and the Court of Appeal reversed the sealing order in its entirety, granting full relief.
The authority for writ practice is found in article 5, § 2 of the Louisiana Constitution: “A judge may issue . . . all other needful writs, orders, and process in aid of the jurisdiction of his court”; article 5, § 5(A) of the Constitution: “The supreme court has general supervisory jurisdiction over all other courts”; article 5, § 10(A) of the Constitution: “a court of appeal . . . has supervisory jurisdiction over cases which arise within its circuit”; and article 2201 of the Louisiana Code of Civil Procedure: “Supervisory writs may be applied for and granted in accordance with the constitution and rules of the supreme court and other courts exercising appellate jurisdiction.”
When submitting a writ application to the Supreme Court, particular attention must be paid to Supreme Court Rule X, § 1: “Writ Grant Considerations.” The Rule lists five “considerations” which, though “neither controlling nor fully measuring the court’s discretion, indicate the character of the reasons that will be considered” in deciding whether to grant a writ application. The five considerations are: (1) conflicting decisions; (2) significant unresolved issues of law; (3) overruling or modification of controlling precedents; (4) erroneous interpretation or application of constitution or laws; and (5) gross departure from proper judicial proceedings. A writ application “shall address, in concise fashion why the case is appropriate for review under the considerations stated,” and “one or more of” the five considerations “must ordinarily be present in order for an application to be granted.”
The Courts have given full consideration to motions by the news media for access even without granting intervention, however, and have allowed intervention in criminal cases even though there is no express authority to do so.
Thus, in Copeland v. Copeland, 930 So.2d 940 (La. 2006), the District Court issued an order sealing the entire record of a divorce proceeding. The District Court denied a newspaper’s motion to intervene to challenge the sealing order. The Court of Appeal denied the newspaper’s writ application; the Supreme Court granted writs and vacated and remanded. On remand, the District Court then issued another less-extensive sealing order; the Court of Appeal denied a new writ application; and the Supreme Court again granted writs and ordered almost the entire record opened. In sum, the newspaper won almost total relief, and the Louisiana Supreme Court issued two opinions, even though the motion to intervene was never granted explicitly.
In Chicago Tribune Co. v. Mauffray, 996 So.2d 1273, 1279 (La. App. 2008), the Court of Appeal held that the news media had standing to challenge closure of courtroom proceedings and request access to records of juvenile adjudication proceedings even though the “News Media may not be acting as ‘intervenors’ in the strictest sense.” The Court stated: “The media is often in the best position to champion the important interests that both the media and the public share in the rights and freedoms discussed above. In order to give meaning to these rights and freedoms, representatives of the press and general public must generally be given an opportunity to be heard on the question of their exclusion.”
In State v. Walden Book Co., 386 So.2d 342, 343 n. 1 (La. 1980), an obscenity prosecution against Penthouse magazine, the Supreme Court allowed the magazine publisher to intervene, although noting that the state was correct in arguing “the absence of statutory provisions permitting intervention in a criminal case.”
As to access to records, the Louisiana Public Records Act, La. R.S. 44:1 et seq., allows “any person” to make a public records request. La. R.S. 44:32. “Any person who has been denied the right to inspect or copy a record” may “institute proceedings for the issuance of a writ of mandamus, injunctive or declaratory relief.” La. R.S. 44:35.
Courts are covered by the Public Records Act. See La. R.S. 44:1(A)(1), defining “public body” as including “any branch . . . of state . . . government,” and article 2, § 1 of the Louisiana Constitution: “The powers of government of the state are divided into three separate branches: legislative, executive, and judicial.”
Prevailing plaintiffs in Public Records Act litigation “shall be awarded reasonable attorney’s fees.” La. R.S. 44:35(D). In spite of this mandatory language, courts often are reluctant to award attorney’s fees. See, e.g., Dwyer v. Early, 842 So.2d 1124 (La. App. 2003) (awarding attorneys’ fees is discretionary); Hunter v. Pennington, 726 So.2d 1082 (La. App. 1999) (denying attorneys’ fees to partially-prevailing plaintiff).
When proceeding under the Public Records Act, the better practice is to comply strictly with the terms of the Act. An individual person should request the record and should be the plaintiff if suit is filed. Compare Ferguson v. Stephens, 623 So.2d 711 (La. App. 1993) (granting relief including attorneys’ fees to reporter who submitted request and was the named plaintiff) and Capital City Press v. E. Baton Rouge Par. Metro. Council, 696 So.2d 562 (La. 1997) (granting relief including attorneys’ fees where reporter submitted request and both reporter and newspaper were the named plaintiffs), with Vourvoulias v. Movassaghi, 906 So.2d 461 (La. App. 2005) (denying relief because paralegal who had signed public records request, not general counsel who was plaintiff, had the right to sue over denial of request). Still, cases have proceeded to judgment with the news media entity as the plaintiff. See, e.g., Gannett River States Publ’g v. Hussey, 557 So.2d 1154 (La. App. 1990) (reporter submitted public records request while newspaper was plaintiff).
The Maine Supreme Judicial Court has not definitively addressed the procedure by which the public may request access in criminal cases but has allowed “[i]ntervention . . . for the limited purpose” of asserting rights to access in a criminal case. See MaineToday, 2013 ME 12 (“we reserve further analysis of the public’s right to intervene in criminal matters to future proceedings”).
In a Superior Court case involving access to records of a bindover hearing to determine whether two juveniles arraigned in Juvenile Court would be bound over for trial as adults in Superior Court, the Court accepted and ruled in favor of a “petition in the nature of a mandamus” seeking equitable relief from the Court. In re Am. Journal, 1986 Me. Super. LEXIS 347 *4–*5 (Me. Super. Ct. Dec. 3, 1986). The Court may also allow intervention for the purposes of challenging closure of a proceeding or for gaining access to judicial records. See State v. Dechaine, slip op., Kno-89-126 (July 11, 1989) (McKusick, J.) (allowing intervention for the limited purposes of challenging a seal on a transcript of a pre-trial evidentiary hearing in a murder case).
As a result, there are two possible routes to challenge closure of a criminal case in Maine. A party may either move to intervene for the limited purpose of challenging a closure order (the simpler and quicker option) or, alternatively, initiate a new proceeding seeking injunctive relief against the relevant court clerk with custody of the records. The former is the more sensible approach and has been endorsed as the preferred means of requesting access in criminal cases by federal courts.
It is useful to contact the clerk’s office for guidance when an access issue arises. The clerk can promptly bring to the court’s attention a letter or other request or objection if there is inadequate time to make a written submission. The clerk’s office can provide information on how the judge may wish to handle an access matter.
Unless leave has been granted to proceed otherwise, the common practice in Maryland is to file a motion to intervene with the court in which the action is pending, seeking to oppose the closure. However, some judges will allow the press to assert its rights through less formal means, most often by letter seeking the relief requested.
The specific procedure for seeking access to Case Records is set forth in Maryland Rule 16-912. In most cases, once a motion to seal a particular case record has been filed, the clerk must deny inspection of that record for a period “not to exceed five business days, including the day the motion is filed, in order to allow the court an opportunity to determine whether a temporary order should issue.” Md. Rule 16-912(b). The court must then decide, on an expedited basis, whether to preclude or limit inspection of the record. Md. Rule 16-912(c). In order to enter a temporary order denying or limiting access, the court must find both that “there is a substantial basis for believing that the case record is properly subject to an order precluding or limiting inspection” and that “immediate, substantial, and irreparable harm will result to the person seeking the relief or on whose behalf the relief is sought if temporary relief is not granted before a full adversary hearing can be held on the propriety of a final order precluding or limiting inspection. Md. Rule 16-912(c)(2). Only after a “full adversary hearing” may the court issue a final order precluding or granting access to the record. Md. Rule 16-912(d)(1). The final order must contain specific “findings regarding the interest sought to be protected by the order” and, if it precludes or limits access, 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)(2)–(3).
Proceedings. Due to the general presumption of access, when proceedings have been closed, those who oppose have a right to be heard in Massachusetts. Members of the media have filed motions to intervene in order to challenge court closures. See, e.g., Commonwealth v. Clark, 730 N.E.2d 872, 880 (Mass. 2000) (noting that trial court granted non-party media entities’ motion to intervene to seek reconsideration of trial judge’s order barring electronic media from trial). However, a formal motion to intervene is not necessary, and a closure order may be appealed immediately. Globe Newspaper Co. v. Super. Ct., 379 Mass. 846, 865 (1981), judgment vacated on other grounds, 457 U.S. 596 (1982) (one “need not file a formal motion to intervene”). If denied access in the single justice hearing under Mass. Gen. Laws ch. 211 § 3, a member of the media may appeal the decision to the full court. Boston Herald, Inc. v. Sharpe, 432 Mass. 593, 602 (2000), rev’d on other grounds, Janes v. Commonwealth, 436 Mass. 1010 (2002). However, that judgment will only be reversed with a finding of “clear error of law or [abuse of] discretion.” Id. (citing Dep’t of Mental Retardation v. Kendrew, 418 Mass. 50, 53 (1994)).
Records. Once a record has been impounded, anyone (including nonparties, Unif. R. Impound. P., Rule 6) may challenge the impoundment order whenever they have a “nonfrivolous” reason for doing so. Republican Co. v. Appeals Ct., 812 N.E.2d 887, 893 (Mass. 2004). Nonparties seeking to oppose, modify, or terminate impoundment orders must follow procedures specified in Rule 6; for pending cases, this requires the filing of a motion, but for closed cases, this requires the filing of a new civil action. Unif. R. Impound. P., Rule 6.
In contrast to most types of court orders, an impoundment order carries no continuing presumption of validity. Republican Co., 812 N.E.2d at 893. Consequently, the party challenging the impoundment “does not bear the burden of demonstrating either that there has been a material change in circumstances or that whatever good cause may once have justified their impoundment no longer exists. The burden of demonstrating the existence of good cause always remains with the party urging their continued impoundment.” Id.
In Minnesota, before closing criminal proceedings, a judge must hold a public hearing, during which the members of the press and the public have an opportunity to object and to suggest alternatives to closure. Minneapolis Star & Tribune Co. v. Kammeyer, 341 N.W.2d 550, 558 (Minn. 1983). After the hearing, if the judge orders the proceedings closed, the public or the press may seek a writ of prohibition to challenge the court’s order. Austin Daily Herald v. Mork, 507 N.W.2d 854, 856 (Minn. Ct. App. 1993) (citing Minn. R. Crim. P. 25.03, subd. 5).
The procedures for restricting access to public records relating to criminal proceedings are explained in Minn. R. Crim. P. 25.03. This rule contains a notice and hearing requirement and states that a court may issue a restrictive order only if it concludes that: (1) access to public records will present a substantial likelihood of interfering with the fair and impartial administration of justice; and (2) all reasonable alternatives to a restrictive order are inadequate. The rule also requires the court to make written findings of facts and statement of the reasons supporting its conclusion that a restrictive order is needed.
At the federal level, the media has a right to intervene to challenge restrictions on access to criminal proceedings or records. The Eighth Circuit stated in In re Iowa Freedom of Information Council, 724 F.2d 658, 661 (8th Cir. 1983), that when a member of the news media objects to limits on his or her access to judicial proceedings, “the court must give him or her a reasonable opportunity to state the objection.” A motion is the preferred procedural mechanism for objecting to limitations upon access. In re Search Warrant for Secretarial Area Outside Office of Gunn, 855 F.2d 569, 570 (8th Cir. 1988).
The Mississippi Supreme Court has not explicitly discussed whether a formal procedure should be followed to request access in criminal cases, though in at least two Mississippi Supreme Court cases, media organizations filed writs of mandamus (pursuant to what is now Mississippi Rule of Appellate Procedure 21) when seeking to vacate a lower court’s closure order.
In Mississippi Publishers Corp. v. Coleman, 515 So.2d 1163 (Miss. 1987), a newspaper publisher petitioned the court for writ of mandamus or other extraordinary relief when files and pretrial proceedings in a murder case were closed to the public. In Gannett River States Pub. Co. v. Hand, 571 So. 2d. 941 (Miss. 1990), the publisher also sought a writ of mandamus compelling a trial court judge to vacate a closure order in a murder case. Id. at 942. The court in Gannettalso outlined what procedures a court must take prior to granting a closure order. Among other things, the court explained that a trial court must hold a hearing “in which the press is allowed to intervene on behalf of the public and present argument, if any, against closure.” Id. at 945.
There is no Nebraska case law on this topic. The Nebraska Guidelines require the clerk of a court to give notice of any hearing on a request to close a hearing to any person who has filed a request for such notice with the clerk. Neb. S. Ct. R. § 6-203. The Nebraska Guidelines require the courts to “afford all interested persons, including the general public, a reasonable opportunity to be present and prepare for such a hearing.” Id.
A request for court records under Nebraska Public Records Act can be made by a letter. Neb. Rev. Stat. §84-712(4) (Reissue 2014). The Nebraska Supreme Court has held that “no third party has a right to intervene in a criminal prosecution.” State ex rel. Nebraska Press Ass’n. v. Stuart, 194 Neb. 783, 788, 236 N.W.2d 794, 798 (1975), rev’d on other grounds, Nebraska Press Ass’n. v. Stuart, 427 U.S. 539 (1976). The Nebraska Supreme Court employs a Public Information Officer:
Ms. Janet Bancroft
Nebraska Supreme Court Public Information Officer
Room 1220, Nebraska State Capitol
PO Box 98910
Lincoln NE 68509
Phone: 402-471-3205; Fax: 402-471-2197
A member of the press or the public may move to intervene in a criminal case to oppose closure. See Stephens Media, 125 Nev. at 860, 221 P.3d at 1248 (holding “the public and the press have the right to seek limited intervention in a criminal case to advance or argue constitutional claims concerning access to court proceedings”).
Court Access: Both the United States Constitution and the New Mexico Constitution guarantee a criminal defendant the right to a public trial. See U.S. Const. amend. VI; N.M. Const. art. II, § 14. Consistent with these constitutional rights, New Mexico statutes require all courtroom proceedings to be open to the public unless otherwise provided by law. Rule 5-124 NMRA (citing NMSA 1978, § 34-1-1 (1851)). Pursuant to Rule 5-124, any member of the public opposing a motion for courtroom closure may file a written response to the motion at any time before the requisite hearing; any party in opposition may file a response within fifteen (15) days after the motion. Unless the court denies the motion on the pleadings, a public hearing on the motion shall be held. Media organizations, persons, and entities that have requested to receive notice shall be given timely notice of the date, time, and place of the hearing.
Court Records: Prior to sealing, Rule 5-123 NMRA allows for any party or member of the public to file a response to the motion to seal under Rule 5-120 NMRA. After a court record has been sealed, “[a] party or member of the public may move to unseal . . . A copy of the motion to unseal is subject to the provisions of Rule 5-120 NMRA and shall be served on all persons and entities who were identified in the sealing order.” Rule 5-123(I) NMRA. In determining whether to unseal, the court will consider the same factors that dictate sealing:
“(a) the existence of an overriding interest that 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 5-123(G) NMRA. “If the court grants the motion to unseal a court record, the order shall state whether the court record is unsealed entirely or in part.” Id. Finally, the media has no right to intervene as a party in a criminal case. State, ex rel. N.M. Press Ass'n v. Kaufman, 1982-NMSC-060, ¶ 13, 98 N.M. 261, 264, 648 P.2d 300, 303.
As members of the public, media persons always have a right to attend an open criminal proceeding and report on the proceedings that they observe, including hearings on motions to close a preliminary proceeding. If an order is entered closing the preliminary proceeding, the media’s only recourse is to apply to the North Dakota Supreme Court for a supervisory writ.
The Oregon Supreme Court, in Oregonian Publ’g Co. v. O'Leary, 303 Or. 297, 301-02, 736 P.2d 173 (1987), held that “[m]embers of the media and public may . . . assert in court in their own behalf . . . [the open courts requirement of the Oregon Constitution].” Typically, access is requested through informal channels. Where particular hearings are closed, parties may resort to intervention.
· Is formal intervention or mandamus necessary?
Formal intervention is necessary to assert a right of access. See, e.g., Commonwealth v. Long, 922 A.2d 892, 895 n.1 (Pa. 2007) (“In Pennsylvania, a Motion to Intervene is the proper vehicle for the press to raise a right of access question.”); see also Commonwealth v. Davis, 635 A.2d 1062, 1064 n.5 (Pa. Super. Ct. 1993) (citing Capital Cities Media, Inc. v. Toole, 483 A.2d 1339, 1344 (Pa. 1984)); Commonwealth v. Fenstermaker, 530 A.2d 414, 416 n.1 (Pa. 1987). An order denying leave to intervene is immediately appealable. See Toole, 483 A.2d at 1339. Mandamus is not necessary.
· In which court and how?
A person seeking access should file a motion to intervene in the court in which the matter is being heard. See Long, 922 A.2d at 895 n.1.
· Is there a press liaison that can help with access issues?
No. The court itself makes decisions on access issues. Each county employs different people and operates its own court system. Different courts have different practices. The county’s court administrator or others in the administrator’s office might be able to provide assistance or guidance. The Office of Communications and Intergovernmental Relations of the Administrative Office of Pennsylvania Courts (“AOPC”) fields inquiries from reporters across the state as part of its duties as media liaison. See Office of Communications and Intergovernmental Relations, The Unified Judicial System of Pennsylvania, http://www.pacourts.us/judicial-administration/office-of-communications-and-intergovernmental-relations (last visited July 18, 2018). In high-profile criminal trials, the AOPC has worked with local courts on issues relating to media coverage.
· Is orally objecting or sending a letter to the judge acceptable?
Orally objecting at a proceeding is generally acceptable if the proceeding is in progress and the closure is happening at that time. In other circumstances, a written request for access should be made, normally through a motion. Some judges will accept a letter, depending on the nature of the relief sought. This is highly judge and court specific, however, so the best practice is to inquire with the court and chambers of the judge who is presiding over the matter.
· Other tips for requesting access in the jurisdiction?
In general, records in criminal cases are accessible to the public. The Pennsylvania Supreme Court has adopted a policy governing access to case records, including criminal case records. See 204 Pa. Code § 213.81. The policy provides that “[a]ll case records shall be open to the public” with some significant exceptions for documents and information deemed confidential and thus not available to the public.
Of course, the policy’s restrictions on access cannot override the First Amendment right of access. It is therefore possible that in certain cases the withholding of documents or information pursuant to the policy may be subject to a successful First Amendment challenge.
Generally, the policy allows a request for records to be made orally, although it further provides that the records custodian is permitted to require a written request. A request “shall identify or describe the records sought with specificity to enable the custodian to ascertain which records are being requested.” Id. Any denial of a request must be made in writing.
Finally, when seeking documents, be aware of the Electronic Case Record Access Policy of the Unified Judicial System of Pennsylvania, available at http://www.pacourts.us/assets/files/page-1090/file-837.pdf, which governs access to electronic case information residing in three statewide case management systems: Pennsylvania Appellate Courts Case Management System, Common Pleas Case Management System, and Magisterial District Judge System.
In both criminal and civil cases, Rule 4-202.03 of the Utah Rules of Judicial Administration provides that “any person may access a public record” and includes an extensive list of individuals who may access private, protected, juvenile, or other court records. Utah R. Judicial Admin Rule 4-202.03. Requests for access to records in a case are governed by Rule 4-202.04, which states in pertinent part:
(1) A request to access a public court record shall be presented in writing to the clerk of the court unless the clerk waives the requirement. A request to access a non-public court record to which a person is authorized access shall be presented in writing to the clerk of the court. A written request shall contain the requester’s name, mailing address, daytime telephone number and a description of the record requested. If the record is a non-public record, the person making the request shall present identification.
(2) (A) If a written request to access a court record is denied by the clerk of court, the person making the request may file a motion to access the record.
(B) A person not authorized to access a non-public court record may file a motion to access the record. If the court allows access, the court may impose any reasonable conditions to protect the interests favoring closure.
Utah R. Judicial Admin Rule 4-202.04(1)-(2).
Once a trial court “determine[s] that the interests weigh in favor of unsealing [a record],” the court is “not required to determine that there are no reasonable alternatives to sealing sufficient to protect the interests favoring [sealing].” State v. Allgier, 2011 UT 47, ¶ 18, 258 P.3d 589 (internal quotations omitted) (last alteration in original).
The Vermont Rules for Public Access to Court Records provide that:
A case record to which the public has access may be inspected and copied at any time when the office of the clerk of the court is open for business. The record custodian shall act on a request promptly within the time limits set in 1 V.S.A. § 318. If a copy of the case record is requested, 1 V.S.A. § 316(g) and (h) shall apply, and the record custodian shall charge the fees for copying and, if applicable, staff time in accordance with 1 V.S.A. § 316(b)-(d) and (f).
Vt. Pub. Acc. Ct. Rec. Rule 6(f). The “record custodian” is typically the clerk of the court. See Vt. Pub. Acc. Ct. Rec. Rule 3(f).
Unlike access to court records, there is no comprehensive rule or statute governing public access to court proceedings in Vermont. However, the Vermont Supreme Court has repeatedly recognized the “generally accepted practice as well as the public’s constitutional and common law right of access to court records and proceedings.” State v. Tallman, 148 Vt. 465, 472, 537 A.2d 422, 427 (Vt. 1987); see also Herald Ass’n v. Ellison, 138 Vt. 529, 533-534, 419 A.2d 323, 326, (Vt. 1980) (noting that, in Vermont, public judicial proceedings are the rule and closed ones the exception). Thus, there is no need to request access to the majority of criminal proceedings. Where, however, court proceedings are closed, the Vermont Supreme Court has recognized the media’s standing to challenge the closure of court proceedings. See Tallman, 148 Vt. at 468, 537 A.2d at 424 (holding that “direct intervention in a trial court proceeding is an appropriate legal vehicle for ensuring that the news media’s voice is heard in a timely manner”); see also State v. Schaefer, 157 Vt. 339, 344, 599 A.2d 337, 342 (Vt. 1991) (“We have held that the media may directly intervene in a criminal proceeding for purposes of seeking access to proceedings or papers.”). Moreover, “[o]nce representatives of the media intervene, . . . they have standing to appeal to this Court from orders denying them access to papers or proceedings.” Schaefer, 157 Vt. at 344, 599 A.2d at 342.
There are no hard and fast rules in Virginia for requesting access to judicial proceedings and records. When access is denied, it is often the result of a miscommunication or misinterpretation of the judge’s directions, and sometimes it is done without the judge’s knowledge. Judges appreciate the opportunity to correct a mistake, or to more thoroughly consider closure and sealing options, without enduring a full-blown adversarial contest. Therefore, whenever practical, one denied access should first bring the issue to the court’s attention informally, either by oral motion or by submitting a letter to the court. However the request is presented, it is critical that the request unambiguously identify the access sought, with as much specificity as circumstances allow. Additionally, the request should be memorialized in a writing that is incorporated into the record of the underlying proceeding. Similarly, if the request is denied, a written record of the denial should be preserved and made part of the court’s record. Following these steps preserves the requesting party’s ability to challenge both the procedural and substantive aspects of an order restricting access.
In the event that intervention is warranted, the requesting party should consult the forum’s local rules, if any, governing intervention and motions practice generally. A written motion requesting leave to intervene for the limited purpose of asserting the public’s qualified right of access, accompanied by or consolidated with a supporting memorandum citing the applicable legal authorities, ordinarily will suffice. The motion and any supporting memorandum should be served on all counsel of record. In time-sensitive matters, a courtesy copy should be provided to the court.
As part of the Bone-Club/Ishikawa analysis, the judge must provide anyone present at the time of the closure motion the opportunity to object to closure. See Seattle Times Co. v. Ishikawa, 97 Wn.2d 30, 36–39 (1982); State v. Bone-Club, 128 Wn.2d 254, 258–59 (1995). Often this is done informally, without the need for formal intervention in the case.
Normally, third parties have no right to intervene in criminal cases. The Washington Supreme Court has held, however, that members of the media may seek to intervene in criminal matters for limited purposes, including moving to unseal records after trial is completed. Yakima v. Yakima Herald-Republic, 170 Wn.2d 775, 800, 246 P.3d 768 (2011).
The United States Supreme Court has declined to specify the proper method for requesting access. Practices vary, though “courts have widely recognized that the correct procedure for a non-party to challenge a protective order is through intervention for that purpose.” United Nuclear Corp. v. Cranford Ins. Co., 905 F.2d 1424, 1427 (10th Cir. 1990) (citing Public Citizen v. Liggett Group, Inc., 858 F.2d 775, 783 (1st Cir. 1988)).
Many courts, by rule or practice, allow a less formal challenge in the form of an oral request for access or a letter to the judge overseeing the proceedings. In some courts, the press liaison or public information officer may be able to assist the press in requesting access to closed proceedings or records.
Members of the news media generally use the same procedure for challenging a court’s closure of criminal proceedings and records. See Wis. Stat. § 803.09 (Intervention):
(1) Upon timely motion anyone shall be permitted to intervene in an action when the movant claims an interest related to the property or transaction which is the subject of the action and the movant is so situated that the disposition of the action may as a practical matter impair or impede the movant’s ability to protect that interest, unless the movant’s interest is adequately represented by existing parties.
(3) A person desiring to intervene shall serve a motion to intervene upon the parties as provided in s. 801.14. The motion shall state the grounds therefor and shall be accompanied by a pleading setting forth the claim or defense for which intervention is sought. The same procedure shall be followed when a statute gives a right to intervene.