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C. Dockets

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  • 4th Circuit

    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)).

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  • Idaho

    Calendars or dockets of court proceedings, including case numbers and captions, date and time of hearings, and location of hearings are available for public review under Idaho Court Administrative Rule 32(d)(4).

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  • Pennsylvania

    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.

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  • Virginia

    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.

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