C. Other proceedings involving minors
Given that the Supreme Court has not recognized a right of access to juvenile abuse, neglect, custody proceedings or records, the confidentiality of proceedings involving minors varies from state to state. In the Second Circuit, the Court has upheld New York State statutes providing for the confidentiality of public agency records pertaining to abandoned, delinquent, destitute, neglected or adopted children. Alma Soc. Inc. v. Mellon, 601 F.2d 1225, 1229 (2d Cir. 1979).
The need to protect the physical and psychological well-being of individuals related to the litigation, including family members and particularly minors, may justify restricting public access, especially when the defendant may have cooperated with law enforcement. See United States v. Harris, 890 F.3d 480 (4th Cir. 2018) (citing, inter alia, Globe Newspaper Co. v. Super. Ct., 457 U.S. 596, 607 (1982)). However, only the portion of the record pertaining to the perceived harm should be sealed. See id. (remanding with instructions to file a publicly available redacted version of a sentencing memorandum).
The Fifth Circuit has noted that the special status and vulnerability of child litigants can be a factor considered in overcoming the general presumption of openness. Doe v. Stegall, 653 F.2d 180, 186 (5th Cir. 1981). The Doe v. Stegall case involved the question of whether the name of a minor could be withheld out of concern over reprisals after a parent sued over the perceived endorsement of religion in public schools.
“Juvenile criminal matters must be filed conventionally and under seal unless, after hearing, the Court Rules that the juvenile will be tried as an adult.” C.D. Ill. Local Crim. R. 49.4(B)(3). See also S.D. Ind. Local Crim. Rule 49.1-2(c)(5) (“documents filed in juvenile proceedings” “may be filed under seal without motion or further order of the court, provided counsel has a good faith belief that sealing is required to ensure the safety, privacy or cooperation of a person or entity, or to otherwise protect a substantial public interest”). Compare Avina v. Bohlen, 2015 WL 1756774, at *5 (E.D. Wis. April 16, 2015) (in parent/guardian’s civil rights action for injuries to his minor son, court rejected plaintiff’s request for “sealing of all court proceedings in which the minor’s medical and mental health records are presented” finding, “on the current record,” request was unacceptable).
Due to the personal nature of divorce proceedings, the Supreme Court of Alabama has held that the press’s right to obtain access to public records does not extend to divorce proceedings. Ex parte Balogun, 516 So. 2d 606, 610–11 (Ala. 1987). For good cause shown, trial judges also have the discretion to close the proceedings and/or the records to the public and the press to protect the rights of the parties. Id.
A juvenile court judge’s decision to admit the media to a hearing on whether to have a juvenile prosecuted as an adult does not violate Arizona’s constitution (requiring the holding of a juvenile proceeding “in chambers”) since historical meaning of in chambers did not entail exclusion of the public. Wideman v. Garbarino, 770 P.2d 320 (Ariz. 1989).
The record and accompanying briefs, motions, or other filings in all adoption appeals shall be sealed. Ark. Sup. Ct. R. 6-3(a). The Clerk shall ensure that the public docket use initials to identify juveniles in those appeals. Counsel and the Court shall preserve the juvenile’s anonymity by using initials in all subsequent captions, opinions, motions, and briefs, as well as in oral argument, if any. The record and papers on appeal shall be open for inspection only to counsel and parties of record, or, only upon order of the Court after review of a written motion.
Georgia’s juvenile code affords a presumptive statutory right of public access to certain specified proceedings involving minors, O.C.G.A. § 15-11-700, and related records, O.C.G.A. § 15-11-704(b). These specifically include child support hearings and hearings in legitimation actions. O.C.G.A. §§ 15-11-700(b)(3); 15-11-700(b)(4).
In the case of other proceedings involving minors, the Georgia Supreme Court has held that, based on constitutional considerations, the public and/or press must be given an opportunity to show that the state’s or juveniles’ interest in a closed hearing is not overriding or compelling, in which case access must be granted. Florida Publ’g Co. v. Morgan, 253 Ga. 467 (1984).
Under the Kansas Adoption and Relinquishment Act, K.S.A. 59-2111 et seq., records of adoptions “shall not be open to inspection or copy by persons other than the parties in interest and their attorneys” and certain others, absent an order of the court. K.S.A. 59-2122(a). However, the Act sets forth a procedure for “genetic parents” to contact the adoptive parents through the state Department of Social and Rehabilitation Services. K.S.A. 59-2122(b).
Under the Kansas Parentage Act, K.S.A. 23-2201 et seq., court findings that form the basis for a new birth registration, as well as the original birth certificate, “shall be kept in a sealed and confidential file and be subject to inspection only in exceptional cases upon order of the court for good cause shown” or in connection with child support enforcement services. K.S.A. 23-2222(c).
Kansas law does not close records in divorce cases. As a state agency reports, “Divorce information is open to the public at the county district court level.” Kansas Department of Health and Environment, Divorce Certificates, http://www.kdheks.gov/vital/divorce.html.
Mississippi cases involving domestic relations, specifically the custody of children, are not subject to the same standards of closure set out in Gannett River States Publishing Co. v. Hand, 571 So. 2d 941, 945 (Miss. 1990). See In re Memphis Publ’g Co., 823 So. 2d 1150, 1151 (Miss. 2001).
Miss. Code Ann. § 93-5-21 (1994) provides wide discretion for a chancery court to close trials in divorce and custody cases, stating: “The court may, in its discretion, exclude all persons from the court room during the trial except the officers of the court, attorneys engaged in the case, parties to the suit and the witness being examined.” The chancellor’s discretionary authority is particularly important in cases that involve confidential or sensitive testimony or other evidence that may affect the emotional well-being of the children involved. In re Memphis Publ’g Co., 823 at 1151. However, matters concerning the estate of the child are financial matters and lack such protection. Id. “We find that these matters, as to both hearings and the case file, should be open to the public.” Id.
In New Mexico, all hearings in adoption proceedings are confidential and are held in closed court without admittance of any person other than parties to the case and their counsel. NMSA 1978, § 32A-5-8. In Normand By & Through Normand v. Ray, 1990-NMSC-006, ¶ 14, 109 N.M. 403, 407, 785 P.2d 743, 747, the court found that the New Mexico statute providing that courts shall hold private hearing in chambers when testimony is taken from a minor in a custody case is not mandatory but evinces a legislative directive that children are not to be subject to adversarial proceedings in open court.
All hearings regarding a family in need of court-ordered services shall be closed to the general public, save for those the court finds to have a “proper interest in the case” or those “accredited representatives of the news media,” both of whom must “refrain from divulging any information that would identify the child or family involved in the proceedings.” NMSA 1978, § 32A-3B-13. All records developed thereby “shall be confidential and closed to the public.” NMSA 1978, § 32A-3B-22. Likewise, “[a]ll records or information concerning a party to a neglect or abuse proceeding” are confidential and closed to the public. NMSA 1978 § 32A-4-33.
Divorce hearings are presumptively open, but “are the type of proceedings which courts may close to protect the rights of the parties.” Katz v. Katz, 514 A.2d 1374, 1380 (Pa. Super. 1986); see also R.W. v. Hampe, 626 A.2d 1218, 1222 (Pa. Super. 1993) (“Divorce cases present one exception to the general rule of openness. The subject matter of divorce litigation serves, in many cases, ‘only to embarrass and humiliate’ the litigants.” (citation omitted)).
In Storms v. O’Malley, the Superior Court affirmed the trial court’s denial of a physician’s motion to seal the record in a medical malpractice case involving a minor. 779 A.2d 548, 570 (Pa. Super. 2001). The Superior Court held that “the minor’s interest in secrecy was not significant in light of the fact that she and her family no longer reside[d] in the area.” Id. at 569.
The Public Access Policy of the Unified Judicial System of Pennsylvania: Case Records of the Appellate and Trial Courts; No. 477 Judicial Administration requires that certain information in judicial filings concerning minors be kept confidential. Such information includes a minor’s name, date of birth, and educational records. See 204 Pa. Code § 213.81.
See State v. Roders, 125 Wis. 2d 572, 373 N.W.2d 85 (Wis. App. 1985) (unpublished) (Court did not abuse its discretion when it denied the defendant’s request to exclude the parents of minor victims from the courtroom during a criminal trial); see also State v. G.B., 204 Wis. 2d 108, 552 N.W.2d 897 (Ct. App. 1996) (unpublished).