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.
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).
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 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."
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.
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.
· 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.
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.