The Tenth Circuit has not definitively decided whether the First Amendment or common law right of access extends to dockets. But, in another context, it has acknowledged that “dockets are public records” and “our ‘national heritage’ suggests that dockets are open to public inspection.” United States v. Mendoza, 698 F.3d 1303, 1306 (10th Cir. 2012) (quoting Hartford Courant Co. v. Pellegrino, 380 F.3d 83, 94 (2d Cir. 2004) (concluding Second Circuit First Amendment right of access extends to docket sheets). The Tenth Circuit further noted that the common law right of access likely extends to dockets, noting “[h]istory therefore demonstrates that docket sheets and their equivalents were, in general, expected to remain open for public viewing and copying.” Id. at 1307 (quoting Hartford Courant Co., 380 F.3d at 95) (internal quotation marks omitted).
The public and press have a qualified First Amendment right of access to court docket sheets. See Hartford Courant Co. v. Pelegrino, 380 F.3d 83 (2d Cir. 2004). Indeed, in Hartford Courant, the court noted that "the ability of the public and press to attend civil and criminal cases would be merely theoretical if the information provided by docket sheets were inaccessible." It further reasoned that sealed docket sheets would frustrate the ability of public and press to inspect court records, which are presumptively open, and the inaccessibility of docket sheets could thwart appellate review of underlying decisions about sealing. Id. at 94; see also Livecchi v. Rochester Police Dep't, No. 04-CV-6162 CJS, 2004 WL 1737379, at *1 (W.D.N.Y. Aug. 2, 2004) (citing Hartford Courant, and ordering docket sheets unsealed where the plaintiff had "not presented any information from which the Court could conclude that sealing of the case is essential to preserve higher values.").
The public has a First Amendment right of access to docket sheets in criminal matters, but only post-indictment. Pre-indictment investigative matters are not required to be publicly docketed. See In re State–Record Co., 917 F.2d 124 (4th Cir.1990) (per curiam); In re U.S. for an Order Pursuant to 18 U.S.C. Section 2703(D), 707 F.3d 283, 294–95 (4th Cir. 2013); 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, *3 n.3 (E.D. Va. Jan. 30, 2019) (“[T]he ability of the public and press to attend civil and criminal cases would be merely theoretical if the information provided by docket sheets were inaccessible.”) (quoting Hartford Courant Co. v. Pellegrino, 380 F.3d 83, 93-94 (2d Cir. 2004)).
The public has no right of access to proceedings and records relating to the issuance of a search warrant before the warrant is executed, including an order sealing such proceedings and records. After execution, the public has a common law, but not a First Amendment, right of access to affidavits in support of search warrants, which right may be overcome by law enforcement’s interest in protecting ongoing investigations. See Baltimore Sun Co. v. Goetz, 886 F.2d 60 (4th Cir. 1989); Media Gen. Operations v. Buchanan, 417 F.3d 424 (4th Cir. 2005); Washington Post v. Hughes, 923 F2d 324 (4th Cir. 1991); see also In re U.S. for an Order Pursuant to 18 U.S.C. Section 2703(D), 707 F.3d 283, 295 (4th Cir. 2013) (While we agree that the public must ordinarily be given notice and an opportunity to object to sealing of public documents, we have never held, nor has any other federal court determined, that pre-indictment investigative matters such as § 2703(d) orders, pen registers, and wiretaps, which are all akin to grand jury investigations, must be publicly docketed.”) (internal quotations omitted).
A district court in the Fourth Circuit has suggested that a First Amendment right of access to judicial records in criminal matters arises after indictment but before arrest. See 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, *4 (E.D. Va. Jan. 30, 2019).
A district court in the Fourth Circuit has observed that even after indictment, nondisclosure or sealing is usually appropriate before a charged person has been arrested because of the government’s well-established interests in preventing the accused from avoiding arrest, destroying or tampering with evidence, or otherwise interfering with the prosecution; securing privacy rights or confidential sources of information; and protecting the public. Nevertheless, the court held that the motion to unseal was premature, as the record was unclear whether the person had actually been charged. See 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, *4 (E.D. Va. Jan. 30, 2019).
“[T]he keeping of a docket fulfills a public record-keeping function over and above the giving of notice to a party[.]” United States v. Osborne, 452 F. App'x 294, 296 (4th Cir. 2011) (citing Bankers Tr. Co. v. Mallis, 435 U.S. 381, 384 n.4 (1978)).
Northern District of Illinois Local Rule 26.2 governs “Sealed Documents” and provides, in part, that “[t]he court may on written motion and for good cause shown enter an order directing that the docket entry for a sealed document show only that a sealed document was filed without any notation indicating its nature. . . .” Id., subd. (f). See also E.D. Wis. Local Crim. R. 49(b) (whenever court orders hearing to be conducted under seal, it may, upon finding good cause, “order that the docket entry for that hearing state only ‘SEALED,’ and that it be accessible only to the Court and the parties directly involved in the hearing”).
Docket information is available online via the state’s “Alacourt” system. Users may subscribe for an annual fee to Alacourt generally (https://v2.alacourt.com), or they may choose to access docket information related to a single case through the state’s “Just One Look” system, for a substantially reduced fee (https://pa.alacourt.com). Docket information may also be obtained from the clerk of the court in which the case is pending.
We know of no statutory or case law authority relating specifically to whether a docket may be sealed.
The Supreme Court of Arkansas adopted a policy that grants public access to court records, including all court records, including the register of action and docket sheets, available to the public during business hours established by the court. Ark. Sup. Ct. Admin. Order No. 19. The Administrative Order also said that “[c]ourts should endeavor” to make information, including dockets, available by remote access “when available in electronic form.” Ark. Sup. Ct. Admin. Order No. 19(V)(A)(3).
Dockets are publicly available in Georgia. Georgia has no single statewide system for electronically accessing court dockets, but many courts—including the Supreme Court, the Court of Appeals and many trial courts—do provide such access online via their own website or that of an authorized private vendor.
Dockets are presumed to be open records in light of Kansas City Star Co. v. Fossey, 630 P.2d 1176 (Kan. 1981). The Kansas Supreme Court acknowledged “that access to court proceedings should be limited only in exceptional circumstances” and “that the reason for requiring all court proceedings to be open, except where extraordinary reasons for closure are present, [ ] is to enhance the public trust and confidence in the judicial process and to insulate the process against attempts to use the courts as tools for persecution.” Fossey, 630 P.2d at 1181. The state supreme court embraced “a strong presumption in favor of open judicial proceedings and free access to records in a criminal case.” Fossey, 630 P.2d at 1182 (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)).
Also noteworthy is the state Legislature’s codification of a requirement that state courts conduct a hearing before they seal records or close a proceeding. See K.S.A. 60-2617. In addition, the Kansas Judicial Branch has shown its commitment to openness:
“Sunshine is the strongest antiseptic—its rays may penetrate areas previously closed . . . This is not to say that all documents in public offices are open to inspection; only those required by law to be kept and maintained must be made available. The latter, however, must be open for inspection under penalty of law.”
State ex rel. Stephan v. Harder, 641 P.2d 366, 373 (Kan. 1982).
Despite the legislative intent behind K.S.A. 60-2617, it has tended to serve in practice as a means of closing court proceedings in a way that would otherwise not have been available. See, e.g., Order Sealing or Redacting Court Records Pursuant to K.S.A. 60-2617, State v. Bennett, Case No. 13 CR 263 PA (Labette Cty. Dist. Ct.).
Dockets and other records are available directly from clerks of Kansas courts. Contact information for the courts is available on the Kansas Judicial Branch’s website. See District Court Contacts, Kansas Judicial Branch, http://www.kscourts.org/kansas-courts/general-information/contacts.asp; Appellate Court Contacts, Kansas Judicial Branch, http://www.kscourts.org/kansas-courts/general-information/appellate-court-contacts.asp. The state has also developed a fee-based search engine for district court records. See District Court Records Search, Kansas Office of Judicial Administration, https://www.kansas.gov/countyCourts/search/records?execution=e3s1
The Kansas Judicial Branch has developed a system for electronic filing of court records. Information about the system is available online in Kansas Courts Electronic Filing, Kansas Judicial Branch, http://www.kscourts.org/Cases-and-Opinions/e-filing/default.asp; see also Rule on Public Access to District Court Records, Kansas Supreme Court Administrative Order 191, http://www.kscourts.org/kansas-courts/supreme-court/administrative-orders/Admin-order-191-Adopted.pdf.
Some, but not all, Mississippi trial courts maintain their own websites or provide web access through a private vendor. Some of these sites include docket information. For cases on appeal, the docket of the Mississippi Supreme Court and the Court of Appeals is available online at https://courts.ms.gov/. The docket is searchable by party name, attorney name, and case number. The site provides a docket entry for each appeal listing the parties to the appeal and a publicly accessible PDF copy of every filing, order, and opinion in each case, unless the document has been placed under seal pursuant to a protective order.
Records not available online can be viewed or copied in the office of the Clerk of the Mississippi Supreme Court, which maintains Supreme Court and Court of Appeals case files, unless the records have been placed under seal pursuant to court order. The clerk’s office may require advance notice of a request to view or copy a file. The telephone number is 601-359-3694. Because of limited space, older files are transferred to and stored at the State Department of Archives and History. Those records should be obtained directly from Archives and History.
Pursuant to the New Mexico Federal Court Rules, the public may access an electronic docket under the “one free look” opportunity. District of New Mexico, Administrative Procedures Manual 7 (2017), https://www.nmd.uscourts.gov/sites/nmd/files/NMD_APM.pdf. The electronic docket and documents are available during regular business hours at public computer terminals located at each Clerk’s Office. Id. When a guardian is appointed for an incapacitated person or upon the appointment of a conservator, records, reports and evidence submitted to the court or recorded by the court shall be confidential, except that the public shall be granted access to some information, including docket entries. NMSA 1978, § 45-5-303(I); § 45-5-407(M).
Pursuant to state court rules, the docket number and case type for the categories of cases listed in this paragraph shall not be sealed without a court order. Rule 1-079 NMRA. “When docketing a motion to seal, the clerk's docket entry should be part of the publicly available register of actions and should reflect that a motion to seal was filed, the date of filing, and the name of the person or entity filing the motion.” Id. However, “any docket entries related to the motion to seal should avoid including detail that would disclose the substance of the conditionally sealed material before the court has ruled.” Id.
There is a right to access case dockets under both the First Amendment and the common law. See Commonwealth v. Curley, --- A.3d ----, 2018 Pa. Super. LEXIS 599, at *8-9 (June 4, 2018). Before sealing any portion of a docket, the court must make “individualized, specific, particularized findings” with respect to each docket entry. Id. at *10-11 (trial court erred in failing to make such findings when sealing docket entries).
Effective January 6, 2018, the Pennsylvania Supreme Court approved a new policy that governs public access to case records, 204 Pa. Code § 213.81. “Case records,” as defined in the policy, include case dockets.
Dockets for matters pending in the Superior Court, Commonwealth Court or Supreme Court may be accessed online at the web portal for The Unified Judicial System of Pennsylvania: https://ujsportal.pacourts.us/DocketSheets/Appellate.aspx (last visited July 19, 2018).
Criminal case dockets for the Courts of Common Pleas can also be accessed at the web portal: https://ujsportal.pacourts.us/DocketSheets/CP.aspx (last visited July 19, 2018).
Electronic case record information held on these portals is also governed by 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.
In Virginia, circuit court clerks are required to maintain dockets. See Va. Code § 8.01-331. Thus, dockets are presumptively open to the public. See Va. Code § 8.01-208(B) (“records that are maintained” by circuit court clerks are presumptively open to the public); Shenandoah Pub. House, Inc. v. Fanning, 235 Va. 253, 262 n.3, 368 S.E.2d 253, 257 n.3 (1988) (dicta referencing “docket entries” as a type of judicial records to which the presumption of access applies).
The Fourth Circuit has squarely acknowledged the public’s presumptive right of access under the First Amendment to docket entries.
The ability of the public and press to inspect docket sheets is a critical component to providing meaningful access to [judicial] proceedings. The docket sheet provides onlookers an overview of the court proceedings and allows them to ascertain the parties to the case, the materials that have been filed, and the trial judge’s decisions. Access to docket sheets therefore enhances the appearance of fairness and enlightens the public both to the procedures the district court utilized to adjudicate the claims before it and to the materials it relied upon in reaching its determinations. In this respect, docket sheets provide a kind of index to judicial proceedings and documents, and endow the public and press with the capacity to exercise their rights guaranteed by the First Amendment.
Doe v. Pub. Citizen, 749 F.3d 246, 268–69 (4th Cir. 2014) (internal citations and quotations omitted); see also In re U.S. for an Order Pursuant to 18 U.S.C. Section 2703(D), 707 F.3d 283, 295 (4th Cir. 2013) (“Docket sheets exist to provide a map of proceedings in the underlying case, ensuring meaningful access to criminal proceedings.”) (internal quotations omitted); 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 n.3 (E.D. Va. Jan. 30, 2019) (“[T]he ability of the public and press to attend civil and criminal cases would be merely theoretical if the information provided by docket sheets were inaccessible.”) (quoting Hartford Courant Co. v. Pellegrino, 380 F.3d 83, 93-94 (2d Cir. 2004)). Therefore, “the information contained on a docket sheet is material that is presumptively open to public inspection.” In re State–Record Co., 917 F.2d 124, 129 (4th Cir.1990) (per curiam). However, pre-indictment investigative matters are not required to be publicly docketed. See In re U.S. for an Order Pursuant to 18 U.S.C. Section 2703(D), 707 F.3d at 295.