B. Procedure for requesting access in criminal cases
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 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.
· 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.