C. Procedural prerequisites to closure
A district court must act on a sealing request as expeditiously as possible to protect the public’s contemporaneous right of access. Doe v. Pub. Citizen, 749 F.3d 246, 273 (4th Cir. 2014).
When presented with a request to restrict public access to judicial proceedings and records, a district court must comply with certain procedural requirements. The same procedures are required under the common law and the First Amendment. The court may temporarily seal the documents while the motion to seal is under consideration so that the issue is not mooted by the immediate availability of the documents. See In re Knight Publishing Co., 743 F.2d 231 (4th Cir. 1984); In re Washington Post Co., 807 F.2d 383 (4th Cir. 1986); Va. Dep't of State Police v. Wash. Post, 386 F.3d 567 (4th Cir. 2004).
As to the procedural requirements, the district court must:
- provide reasonable notice to the public that a hearing will be conducted on a motion to restrict access;
- provide the public with a reasonable opportunity to object to the motion;
- consider less drastic alternatives to closure; and
- if the district court determines that restricting access is appropriate, it must support its decision with specific findings, both as to the competing interests and as to potential alternatives, and state them on the record.
See Va. Dep't of State Police v. Wash. Post, 386 F.3d 567, 576 (4th Cir. 2004); Ashcraft v. Conoco, Inc., 218 F.3d 288, 302 (4th Cir. 2000).
Failing to observe the procedural prerequisites to closure constitutes error even if the closure might otherwise be proper, and the Fourth Circuit generally will remand the issue to the district court for further consideration using correct procedures and correct substantive standards. See In re Washington Post Co., 807 F.2d 383, 393 (4th Cir. 1986); Stone v. Univ. of Md. Med. Sys., 855 F.2d 178, 182 (4th Cir. 1988); Under Seal v. Under Seal, 230 F.3d 1354 (4th Cir. 2000).
The opportunity to be heard on a closure or sealing motion is the “central requirement.” In re S.C. Press Ass'n, 946 F.2d 1037, 1039–40 (4th Cir. 1991). “The failure to provide notice and an opportunity to object renders a closure of proceedings invalid.” In re Associated Press, 172 F. App’x 1, 4 (4th Cir. 2006). When a closure motion is made in open court, persons present must be given notice and an opportunity to object before the public can be excluded. In re Knight Publishing Co., 743 F.2d 231, 234 (4th Cir.1984); see also United States v. Mohamed, No. 3:14-cr-120, 2015 WL 224408, *2 (E.D. Va. Jan. 14, 2015) (because oral motion to close proceedings was contested, the court ordered briefing and continued the hearing to a later date in order to provide an opportunity for members of the public to articulate their objections). Individualized notice is not required. However, when the court has been made aware of the desire of specific members of the public to be present, reasonable steps to afford them an opportunity to submit their views should be taken before closure. In re Knight Pub. Co., 743 F.2d at 234 (citing United States v. Brooklier, 685 F.2d 1162, 1168 (9th Cir.1982)); In re Washington Post Co., 807 F.2d 383, 390 (4th Cir. 1986).
Alternatives to closure that the district court should consider include voir dire, see In re Charlotte Observer, 882 F.2d 850, 855–56 (4th Cir. 1989); admonishing the jury not to follow the news or discuss the case, see In re Knight Pub. Co., 743 F.2d 231, 235 (4th Cir. 1984); witness and jury sequestration, see Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 581 (1980); and change of venue, see Nebraska Press Assn. v. Stuart, 427 U.S. 539, 563–65 (1976). “[I]t would be an unusual case in which alternatives could not be used to preserve public access to at least a portion of the record.” Stone v. Univ. of Md. Med. Sys., 855 F.2d 178, 182 (4th Cir. 1988).
The Fourth Circuit has rejected pleas by litigants that the public right of access can be accommodated by releasing the information after the trial has concluded, reasoning that the value of openness is threatened whenever immediate access to ongoing proceedings is denied, whatever provision is made for later public disclosure. In re Application & Affidavit for a Search Warrant, 923 F.2d 324, 331 (4th Cir. 1991).
If the court concludes that closure is warranted, the court may redact or file its decision under seal. In re Washington Post Co., 807 F.2d 383, 391 (4th Cir. 1986) (citation omitted); see also United States v. Adams, 788 F.3d 115 (4th Cir. 2015) (appellate decision issued under seal).
Most district courts in the Fourth Circuit have adopted local rules governing the procedure for requesting leave to file records under seal. Generally, the local rules are aimed at ensuring compliance with the procedural requirements imposed in the case law.
Maryland: See U.S. Dist. Ct. Rules D. Md., Civil Rule 105(11); U.S. Dist. Ct. Rules D. Md., Criminal Rule 214.
North Carolina (Eastern District): See U.S. Dist. Ct. Rules E.D. N.C., Civ Rule 79.2; U.S. Dist. Ct. Rules E.D. N.C., Crim Rule 55.2.
North Carolina (Middle District): See U.S. Dist. Ct. Rules M.D.N.C., LR5.4.
North Carolina (Western District): See U.S. Dist. Ct. Rules W.D.N.C., LCvR 6.1; U.S. Dist. Ct. Rules W.D. N.C., LCrR 49.1.1.
South Carolina: See U.S. Dist. Ct. Rules D. S.C., Civ Rule 5.03; U.S. Dist. Ct. Rules D. S.C., Crim Rule 49.01; Standing Order In re Sealing of Sentencing Documents (Mar. 14, 2013); Standing Order Regarding Sealing Documents Filed in Criminal Matters (Oct. 28, 2014).
West Virginia (Northern District): See U.S. Dist. Ct. Rules N.D. W.Va., LR Gen P 6.01.
West Virginia (Southern District): See U.S. Dist. Ct. Rules S.D. W.Va., LR Civ P 26.4.
Virginia (Eastern District): See U.S. Dist. Ct. Rules E.D. Va., Local Civil Rule 5; U.S. Dist. Ct. Rules E.D. Va., Local Criminal Rule 49.
Virginia (Western District): See S. Dist. Ct. Rules W.D. Va., General Rule 9.
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.
Many more Colorado courts have analyzed procedural prerequisites to closure under a defendant’s Sixth Amendment right to a public trial. See, e.g., People v. Hassen, 2015 CO 49; People v. Irving, 2019 COA 1;People in Interest of G.B., 2018 COA 77.
In civil cases, C.R.C.P. 121, § 1-5 permits acourt to limit access to court files upon a motion of any party to a civil action only if the court finds that “harm to the privacy of a person in interest outweighs the public interest.” An order limiting access may be reviewed by the court at any time on its own motion or upon the motion “of any person.” C.R.C.P. 121, § 1-5(4). The rule “creates a presumption that all court records are to be open; it allows a court to limit access in only one instance and for only one purpose (when the parties’ right of privacy outweighs the public’s right to know); and it grants to every member of the public the right to contest the legitimacy of any limited access order.” Anderson v. Home Ins. Co., 924 P.2d 1123, 1126 (Colo. App. 1996). The rule “squarely places the burden upon the party seeking to limit access to a court file to overcome this presumption in favor of public accessibility by demonstrating that the harm to the privacy of a person in interest outweighs the public interest in the openness of court files.” Id.
In general, the fact that “a court file contains extremely personal, private, and confidential matters is generally insufficient to constitute a privacy interest warranting the sealing of that entire file pursuant to C.R.C.P. 121, § 1-5. Anderson, 924 P.2d at 1127. A “heightened expectation of privacy or confidentiality in court records has been found to exist only in those limited instances in which an accusation of sexual assault has been made, or in which trade secrets, potentially defamatory material, or threats to national security may be implicated.” Id. Likewise, “prospective injury to reputation, an inherent risk in almost every civil lawsuit, is generally insufficient to overcome the strong presumption in favor of public access to court records.” Id.; see also Doe v. Heitler, 26 P.3d 539, 544 (Colo. App. 2001).
In Minot Daily News v. Holum, 380 N.W.2d 347 (N.D. 1986), the North Dakota Supreme Court established the procedure to be followed by the trial court in considering a request for closure of a preliminary proceeding:
- Review the evidence independently and, if necessary to protect the defendant’s right to a fair trial, privately, with counsel present and on the record.
- Consider possible alternatives to closure.
- If the court determines there is a substantial likelihood of prejudice to the defendant’s right to a fair trial, the closure may be ordered only to the extent necessary to protect that right.
- The court must make specific findings adequate to support closure.
Before closing a proceeding, a trial court must give notice to the public and give persons opposed to closure (for example, the press) an opportunity to be heard. See Capital Cities Media, Inc. v. Toole, 483 A.2d 1339, 1344 (Pa. 1984) (“The media’s right of expression must necessarily include the right to be heard when that interest is adversely affected.”); Commonwealth v. Buehl, 462 A.2d 1316, 1321 (Pa. Super. 1983) (“[T]he public . . . must be given notice and an opportunity to be heard before a pretrial proceeding is closed.”).
In Buehl, the Superior Court did not dictate what kind of notice is required, leaving the issue up to the lower courts. See id. at 1321 n.2. But the Court suggested that individual notice to the press was not required. Instead, docketing notice in advance of any hearing or decision on a closure request is “sufficient.” Id. at 1321 (citing United States v. Criden, 675 F.2d 550, 558-59 (3d Cir. 1982)).
The opportunity for a representative of the press to be heard must be “reasonable.” Id. at 1322. This requires the trial court, at a minimum, to allow the public and press to appear and argue against the motion for closure. See id. The trial court “must hold a hearing . . .” Commonwealth v. Upshur, 924 A.2d 642, 651 (Pa. 2007). An evidentiary hearing may be required in some circumstances. See, e.g., Ornsteen v. Bass, 50 Pa. D. & C.3d 371, 374-75 (Phila. Cty. C.C.P. 1988).
In reaching its decision, the trial court should create a “record” that contains “an articulation of the factors taken in consideration” in determining whether there is a right of access and whether that right has been rebutted by countervailing interests. Commonwealth v. Fenstermaker, 530 A.2d 414, 421 (Pa. 1987); see also Upshur, 924 A.2d at 651 (“[T]he trial court . . . must . . . place on the record its reasoning and the factors relied upon in reaching its decision.”). When assessing whether closure is necessary, “the court should issue individualized, specific, particularized findings on the record that closure is essential to preserve higher values and is narrowly tailored to that interest.” Commonwealth v. Curley, --- A.3d ---, 2018 Pa. Super. LEXIS 599, at *10 (June 4, 2018) (discussing constitutional right of access). Courts are required to make “document-by-document findings” and not simply “issue a blanket conclusion.” Id. In addition, the trial court must articulate on the record that “alternatives to closure” were considered and “explicitly state its reasons on the record for rejecting such alternatives.” Buehl, 462 A.2d at 1322 (quoting United States v. Criden, 675 F.2d 550, 560 (3d Cir. 1982)); see also Commonwealth v. Long, 922 A.2d 892, 906 (Pa. 2007) (“[C]losure must be supported by specific findings demonstrating that there is a substantial probability that an important right will be prejudiced by publicity and that reasonable alternatives to closure cannot adequately protect the right.”).
The on-the-record articulation of reasons for closure must be done “before ordering closure . . . .” Buehl, 462 A.2d at 1323. “Only in that way will those who oppose closure be able to respond. Given a chance to respond, they may be able to persuade the court that it is mistaken, or they may be able to suggest an alternative not thought of by the court but that when thought of, is found to be satisfactory.” Id.
In considering whether to seal records, “the trial court must inspect the items in camera” before determining whether to restrict access to them. Upshur, 924 A.2d at 651 (citing PG Publ’g Co. v. Commonwealth, 614 A.2d 1106, 1110 (Pa. 1992)).