C. Procedural prerequisites to closure
The Tenth Circuit has recognized that “[w]hether judicial records and other case-related information should be sealed or otherwise withheld from the public is a matter left to the sound discretion of the court.” Mann v. Boatright, 477 F.3d 1140, 1149 (10th Cir. 2007) (citing Nixon v. Warner Commc’ns, Inc., 435 U.S. 589, 599 (1978)). From this holding, the Tenth Circuit has further held that in order to overcome a presumption of access, “countervailing interests [must] heavily outweigh the public interests in access.” Id. (citations and quotations omitted).
The party seeking to overcome the presumption of public access must do more than “point out that the records are subject to a protective order in the district court.” Helm v. Kansas, 656 F.3d 1277, 1292 (10th Cir. 2011). The Tenth Circuit has held that for parties to overcome the presumption of public access, “the parties must articulate a real and substantial interest that justifies depriving the public of access to the records that inform our decision-making process.” Id.
Where a presumption of access applies, courts must make specific, on the record findings about the need for closure. Press-Enterprise II, 478 U.S. at 13–14. The district court has "discretion to determine which portions of the record should be placed under seal, but [that] discretion is guided by the presumption of public access to judicial documents.” United States v. Sajous, 749 F. App’x 943, 944 (11th Cir. 2018) (citing Perez-Guerrero v. U.S. Att’y Gen., 717 F.3d 1224, 1235 (11th Cir. 2013). In determining whether to close a historically open process where public access plays a significant role, a court may restrict the right of the public and the press to criminal proceedings only after (1) notice and an opportunity to be heard on a proposed closure; and (2) articulated specific "findings that closure is essential to preserve higher values and is narrowly tailored to serve that interest." United States v. Valenti, 987 F.2d 708, 713 (11th Cir. 1993) (citing Press-Enterprise Co. v. Super. Court, 464 U.S. 501, 510 (1984) (“Press-Enterprise I”), stating that lower courts must articulate "findings specific enough that a reviewing court can determine whether the closure order was properly entered").
Where a presumption of access applies, courts must make specific, on the record findings that the closure is necessary. Press-Enterprise Co. v. Superior Court (Press-Enterprise II), 478 U.S. 1, 13-14 (1986). The “inquiry requires specific findings; the First Amendment right of public access is too precious to be foreclosed by conclusory assertion or unsupported speculation.” In re Providence Journal Co., 293 F.3d 1, 13 (1st Cir. 2002).
The public should receive notice of sealed proceedings and records. “It is axiomatic that protection of the right of access suggests that the public be informed of attempted incursions on that right. Providing the public with notice ensures that the concerns of those affected by a closure decision are fully considered.” United States v. Kravetz, 706 F.3d 47, 59 (1st Cir. 2013).
The First Circuit has identified multiple necessary procedural safeguards protecting access in an opinion addressing whether “a trial court, in a particular case, can adopt a procedure that reverses the presumption of public access and automatically seals all subsequent filings until the judge determines that a specific document poses no undue risk to the defendant’s fair trial rights.” In re Providence Journal Co., 293 F.3d 1, 14 (1st Cir. 2002) (emphasis in original). The court found that doing so was not reversible error, so long as the procedure incorporates several safeguards to ensure that access is timely:
First, where, as here, a court undertakes to screen documents before they are placed in the case file, the procedure should incorporate a specific timetable obligating the court to perform its self-imposed screening responsibilities promptly and to render a timely decision as to whether a particular document is fit for public disclosure. Second, and relatedly, the court below decided to refrain from reviewing each individual memorandum to decide whether it could be made available to the public until after the time had expired for the submission of any possible reply memorandum. This unnecessarily prolongs the process. Each individual memorandum either contains restricted information (in which case it is subject to redaction or sealing) or it does not (in which case it does not pose a threat to the defendants’ Sixth Amendment rights). Third, the order contains no provision as to whether the court intends to unseal retained memoranda at some point after the trial has ended (and if so, when).
Id. at 15.
The First Circuit also required that the trial court’s sealing procedure incorporate a redact-and-release process. “Finally, we think that the district court’s refusal to consider redaction on a document-by-document basis is insupportable. Courts have an obligation to consider all reasonable alternatives to foreclosing the constitutional right of access. Redaction constitutes a time-tested means of minimizing any intrusion on that right.” Id. The First Circuit found fault in a generalized finding by the district court that references to confidential grand jury matters were “almost invariably dispersed throughout the memoranda and inextricably intertwined with the references to applicable legal authority.” Id. Instead, “the First Amendment requires consideration of the feasibility of redaction on a document-by-document basis, and the court’s blanket characterization falls well short of this benchmark.” Id.
Closure requires judicial review and "specific, on the record findings demonstrating that closure is essential to preserve higher values and is narrowly tailored to serve that interest." In re N.Y. Times Co., 828 F.2d at 116. Therefore, in most cases, "a judge must carefully and skeptically review sealing requests to ensure that there really is an extraordinary circumstance or compelling need." Video Software Dealers Assoc. v. Orion Pictures, Corp., 21 F.3d 24, 27 (2d Cir.1994). In practice, the party seeking closure will generally move or otherwise ask the court to seal particular records or, in some instances, the entire docket. The court must then scrutinize the application, and articulate reasons for closure, if any. If only a portion of the document merits closure, the court may ask the party seeking closure to submit proposed redactions. Individual procedures will vary by jurisdiction.
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 Fifth Circuit has held that in order to justify closure, a court must make findings that there is an overriding interest that closure is essential to preserve higher values, and the closure order must be narrowly tailored to serve that interest. United States v. Hitt, 473 F.3d 146, 154 (5th Cir. 2006). The court must also consider reasonable alternatives to closure. Id.
When closure is sought, notice must be provided to the parties and public by promptly posting the request for closure on the docket sheet. Application of Storer Commc’ns, Inc., 828 F.2d 330, 335 (6th Cir. 1987); see also In re Knoxville News-Sentinel Co., 723 F.2d 470, 475 (6th Cir. 1983) (“[T]he most reasonable approach would be to require that motions to seal be docketed with the clerk of the district court.”). “If a party moves to seal a document or the entire court record, such a motion should be made ‘sufficiently in advance of any hearing on or disposition of the [motion to seal] to afford interested members of the public an opportunity to intervene and present their views to the court.’” In re Knoxville News-Sentinel, 723 F.2d at 476 (quoting U.S. v. Criden, 675 F.2d 550, 559 (3d Cir. 1982)). “The district court should then allow interested members of the public a reasonable opportunity to present their claims, without causing unnecessary or material delay in the underlying proceeding.” Id. (citing United States v. Brooklier, 685 F.2d 1162, 1168 (9th Cir. 1982)). But failure to follow these procedures may be cured on appeal. Id.
A district court that decides to seal judicial records “must set forth specific findings and conclusions ‘which justify nondisclosure to the public,’” even when no one objects to the closure. Shane Grp., Inc. v. Blue Cross Blue Shield of Mich., 825 F.3d 299, 306 (6th Cir. 2016) (quoting Brown & Williamson, 710 F.2d at 1176); see also Danley v. Encore Capital Grp., Inc., 680 F. App’x 394, at 399 (6th Cir. 2017) (unpublished) (reversing trial court’s order sealing documents “without ‘set[ting] forth specific findings and conclusions ‘which justify nondisclosure to the public’” (quoting Shane Grp., 825 F.3d at 306)); Goodman v. Fuller, 960 F.2d 149 (table), 1992 U.S. App. LEXIS 8270, at *2–3 (6th Cir. 1992) (unpublished) (holding that the district court cannot summarily seal court records, but instead must “present a reasoned analysis explaining why”).
But the standard is more flexible in regard to requests to seal search warrant proceeding materials. Indianapolis Star v. United States, 692 F.3d 424, 434 (6th Cir. 2012). “[B]ecause time is of the essence in search warrant proceedings, to satisfy [the] articulation requirement in relation to search warrant documents, ‘the judicial officer may explicitly adopt the facts that the government presents to justify sealing when the evidence appears credible.’” Id. (quoting Baltimore Sun Co. v. Goetz, 886 F.2d 60, 65 (4th Cir. 1989)). Moreover, at least in the context of search warrant materials, “because the articulation requirement exists only to aid reviewing courts rather than for the benefit of the public, reversal on this basis is appropriate only where a sealing court’s deficient articulation of its decision impeded review.” Id. (citing Media Gen. Operations, Inc. v. Buchanan, 417 F.3d 424, 431 (4th Cir. 2005)).
“[W]here the rights of the litigants come into conflict with the rights of the media and public at large, the trial judge's responsibilities are heightened. In such instances, the litigants' purported interest in confidentiality must be scrutinized heavily.” Grove Fresh Distribs., Inc. v. Everfresh Juice Co., 24 F.3d 893, 899 (7th Cir. 1994).
The Seventh Circuit has “emphasized that district courts should articulate on the record the reason for any order that inhibits the flow of information between the courts and the public. . . . ‘[w]hen a court finds that the presumption of access has been rebutted by some countervailing interest, that “interest is to be articulated along with findings specific enough that a reviewing court can determine whether the closure order was properly entered.”’” In re Associated Press, 162 F.3d 503, 510 (7th Cir. 1998) (quoting Grove Fresh, 24 F.3d at 898); see also In re Continental Illinois Secs. Litig., 732 F.2d 1302, 1313 n. 17 (7th Cir. 1984); United States v. Edwards, 672 F.2d 1289, 1294 (7th Cir. 1982).
The Court would not affirm an order denying access where “no evidence was taken, no argument entertained, no alternatives considered, and no findings made” before the district court announced its decision; what is “essential” is “an opportunity for the parties (including the intervenors) to make their views known in detail, followed by a considered decision that includes an explanation why alternatives” to limiting access would be unsatisfactory. United States v. Blagojevich, 612 F.3d 558, 564-65 (7th Cir. 2010). “[B]efore closing any part of the criminal process to the public” the court “must consider alternatives to secrecy, whether or not the lawyers propose some.” Id. at 565.
In Central Nat'l Bank v. United States Dep't of Treasury, 912 F.2d 897 (7th Cir. 1990) the Court rejected a party’s request at oral argument to expel a reporter from the courtroom, noting that such extraordinary relief must be sought “in advance of argument, not only to give the other party fair warning and the bench an opportunity for due deliberation but also to give the press—which may be the only adversary of the request for secrecy—a chance to be heard.” Id. at 900.
Local Rules also bear on procedure for seeking to seal portions the record.
Seventh Circuit Operating Procedure 10 (“Sealing Portions of the Record”) provides that:
(a) Requirement of Judicial Approval. Except to the extent portions of the record are required to be sealed by statute (e.g., 18 U.S.C. §3509(d)) or a rule of procedure (e.g., Fed. R. Crim. P. 6(e), Circuit Rule 26.1(b)), every document filed in or by this court (whether or not the document was sealed in the district court) is in the public record unless a judge of this court orders it to be sealed.
(b) Delay in Disclosure. Documents sealed in the district court will be maintained under seal in this court for 14 days, to afford time to request the approval required by section (a) of this procedure.
Motions to seal documents in the appellate record under Operating Procedure 10 are presented to the motions judge, and are rigorously scrutinized; the Court has “remind[ed] counsel that it is often better to exclude the documents from the appellate record than to analyze at length the reasons why they should or should not be sealed.” United States v. Foster, 564 F.3d 852, 854 (7th Cir. 2009) (Easterbrook, J., in chambers); Baxter International, Inc. v. Abbott Laboratories, 297 F.3d 544, 545-46 (7th Cir. 2002). See Sections IV.I. and VI.G.
Northern District of Illinois Local Rule 26.2 governs “Sealed Documents” and provides, in part, that “[t]he court may for good cause shown enter an order directing that one or more documents be filed under seal. No attorney or party may file a document under seal without order of court specifying the particular document or portion of a document that may be filed under seal.” Id., subd. (b). See also id., subd. (c) (procedures for provisionally filing documents electronically under seal; contemporaneous motion for leave required). “The 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. Unless the Court directs otherwise, a sealed document shall be filed pursuant to procedures referenced by Local Rule 5.8.” Id., subd. (f). See also N.D. Ill. Local R. 5.7(a) (where request is made to file a complaint under seal, “[a]bsent any order to the contrary, the contents of the case file shall be treated as restricted documents as defined by LR26.2 for seven days following the day on which the complaint was filed. Except as otherwise ordered, on the seventh day the file will no longer be treated as restricted”).
Eastern District of Wisconsin Local Criminal Rule 49(a) governs sealed hearings and provides that “[a] party seeking a sealed hearing must move the Court in writing prior to the hearing, or orally at the hearing, when a written motion is not practicable. The Court may seal the hearing if the Court finds good cause for such sealing. . . .”
Where a presumption of access applies, courts must make specific, on-the-record findings before closing the courtroom or sealing court records. Press-Enterprise II, 478 U.S. at 13–14. The Supreme Court has also acknowledged that the public has a procedural right to receive notice and an opportunity to be heard before the closure occurs. Globe Newspaper Co. v. Super. Ct., 457 U.S. 596, 609 n.25 (“Of course, for a case-by-case approach to be meaningful, representatives of the press and general public ‘must be given an opportunity to be heard on the question of their exclusion.’”) (quoting Gannett Co. v. DePasquale, 443 U.S. 368, 400–01 (1979) (Powell, J., concurring)).
The Eighth Circuit has found the procedural right of access satisfied where a motion to close the courtroom was made in open court, and the court promptly granted it and closed the court. Webster Groves Sch. Dist. v. Pulitzer Publ’g Co., 898 F.2d 1371, 1376 (8th Cir. 1990) (rejecting “the notion” that a judge must order a continuance and “concoct some provision for public notice” before ruling on a motion made in open court to close the courtroom).
However, the Eighth Circuit has reversed a trial court’s decision to close the courtroom where it failed to hold a hearing on the matter and did not make any specific findings to justify the closure. See, e.g., United States v. Thunder, 438 F.3d 866, 868 (8th Cir. 2013). The court explained that “the closure must be no broader than necessary” to protect an “overriding interest” justifying closure. Id. at 867 (citing Waller v. Georgia, 467 U.S.39, 48 (1984); Press-Enterprise Co. v. Super. Ct., 464 U.S. 501, 510 (1984) (“Press-Enterprise I”). Prior to closure, “the trial court must consider reasonable alternatives to closing the proceeding, and it must make findings adequate to support the closure.” Id. at 867–68 (citing Waller v. Georgia, 467 U.S.39, 48 (1984)).
However, the Eighth Circuit has also formulated its own standard that distinguishes between partial and complete courtroom closures. Complete closures—those in which all members of the public are excluded from the courtroom—must be narrowly tailored to the advancement of a compelling government interest, as required by the Press-Enterprise cases. Thunder, 438 F.3d at 868. By contrast, partial closures—those in which certain members of the public are permitted to remain in the courtroom—need be supported only by a “substantial reason.” United States v. Farmer, 32 F.3d 369, 371 (8th Cir. 1994); United States v. Thompson, 713 F.3d 388, 395 (8th Cir. 2013). For instance, in a sexual assault case where everyone but the alleged victim’s family and treating psychologist was asked to leave the courtroom for a portion of the victim’s testimony, the court found that evidence in the record showing that the victim feared for her safety was sufficient to satisfy the requirement. Farmer, 32 F.3d at 370–72. The panel allowed the partial closure even in the absence of articulated findings, holding that “specific findings by the district court are not necessary if we can glean sufficient support for a partial temporary closure from the record.” Id. at 371. Whether this lower standard for partial closures comports with the Press-Enterprise requirements of a “compelling interest” and specific findings is an open question. See, e.g., Bell v. Jarvis, 236 F.3d 149, 168 n.11 (4th Cir. 2000).
In Alabama, the public and the press must be afforded the minimum due process requirements of “notice and an opportunity for a hearing appropriate to the nature of the case” before they may be excluded from those proceedings. Ex parte Birmingham News Co., 624 So. 2d 1117, 1133–34 (Ala. Crim. App. 1993) (noting that these requirements “must remain sufficiently flexible to accommodate the exigencies of the litigation process and avoid unwarranted delays”) (citing United States v. Raffoul, 826 F.2d 218, 222 (3d Cir. 1987); In re The Herald Co., 734 F.2d 93, 102 (2d Cir. 1984)).
In Ex parte Birmingham News Co., the Alabama Court of Criminal Appeals further held as follows:
In order to provide the requisite notice, pretrial motions for closure “must be docketed reasonably in advance of their disposition so as to give the public and press an opportunity to intervene and present their objections to the court.” In re Washington Post Co., 807 F.2d 383, 390 (4th Cir. 1986). Accord Baltimore Sun v. Colbert, 593 A.2d 224, 229 (Md. 1991); Gannett Pub. Co., 571 So. 2d at 945. Docketing of the motion is sufficient to provide notice to the press or public of the impending hearing. Individual notice to the press or public is “unwarranted and impractical in the context of the administration of criminal litigation,” and is not required. United States v. Criden, 675 F.2d 550, 559 (3d Cir. 1982). Accord In re Knight Pub. Co., 743 F.2d 231, 234 (4th Cir. 1984); Baltimore Sun, 593 A.2d at 229.
At a hearing on a motion for closure, “there is an ongoing presumption in favor of openness,” In re Charlotte Observer, 882 F.2d at 853, and the party seeking closure has the burden of establishing that he or she has “an overriding interest that is likely to be prejudiced” if closure is not ordered. Press-Enterprise II, 478 U.S. at 7, 106 S. Ct. at 2739. “The court should provide individuals opposing closure an opportunity to object and to state the reasons for that opposition before ruling on the closure motion.” Baltimore Sun, 592 A.2d at 229.
In determining whether closure is warranted, the trial court must balance the competing interests as discussed in Part II of this opinion. The court must also consider whether less drastic alternatives would serve those competing interests. Under Press-Enterprise II, “criminal proceedings may be closed to the public without violating First Amendment rights only if (1) closure serves a compelling interest; (2) there is a ‘substantial probability’ that, in the absence of closure, that compelling interest would be harmed; and (3) there are no alternatives to closure that would adequately protect that compelling interest.” In re Washington Post, 807 F.2d at 392. With regard to the second requirement, there should be “a showing of a significant risk of prejudice to the defendant’s right to a fair trial or of danger to persons, property, or the integrity of significant activities entitled to confidentiality, such as an ongoing undercover investigation or detection devices.” In re The Herald Co., 734 F.2d 93, 100 (2d Cir. 1984).
If closure is deemed appropriate, the trial court must make “specific, on-the-record findings demonstrating that closure is essential to preserve higher values and [that] the closure order is narrowly tailored to serve those interests.” Ex parte Consolidated Pub. Co., 601 So. 2d at 433. Accord Press-Enterprise I, 464 U.S. at 510, 104 S. Ct. at 824. In demonstrating the latter, the trial court should include its reasons for concluding that “no less drastic alternatives to closure are feasible.” In re Charlotte Observer, 882 F.2d at 853. The trial court’s findings “must be specific enough to enable an appellate court to determine whether its decision was proper.” In re Search Warrant for Secretarial Area -- Gunn, 855 F.2d 569, 574 (8th Cir. 1988). General “conclusory assertions” are not sufficient. In re Washington Post, 807 F.2d at 392.
Ex parte Birmingham News Co., 624 So. 2d 1117, 1134 (Ala. Crim. App. 1993).
Alaska Administrative Rules 37.5 through 37.8 state that records are presumptively open to the public, subject to specified exceptions and restrictions. These rules generally do not differentiate between the openness of civil and criminal records and are addressed in more detail in subsection VI.I below (Access to civil court records/Other civil court records issues). While they may specify applicable procedures and standards, it should always be borne in mind that insofar as procedures and standards may be required by case law construing a constitutional right of access to judicial proceedings and/or records under the First Amendment, or its state law analogue, art. I, sec. 5, of the Alaska Constitution, these should supersede conflicting, inconsistent or otherwise inadequate measures set out in court rules, or statutes. That said, according to the Administrative Rules, notwithstanding any other rule to the contrary, the court may, by order, limit access to public information in an individual case record by sealing or making confidential the case file, individual documents in the case file, log notes, the audio recording of proceedings in the case, the transcript of proceedings, or portions thereof. A request to limit access may be made by any person affected by the release of the information or on the court’s own motion.” Alaska Admin. R. 37.6(a). Any request to limit access must be made in writing to the court and served on all parties to the case unless otherwise ordered. (Unless and until a motion to intervene is granted, a journalist or news organization would not typically be a “party” to the case.) A request to limit access, the response to such a request, and the order ruling on such a request must be written in a manner that does not disclose non-public information, are public records, and must not themselves be sealed or made confidential. Alaska Admin. R. 37.6(d). Conversely, thecourt may, by order, allow access to non-public information in a case or administrative record if the court finds that the interests in disclosure outweigh the potential harm from disclosure. Non-public information includes information designated as confidential or sealed by statute or court rule and public information to which access has been limited under Administrative Rule 37.6. A request to allow access may be made by any person or on the court’s own motion. Alaska Admin. R. 37.7(a). Any such request to allow access must be made in writing to the court and served on all parties to the case unless otherwise ordered. The court must also require service on other individuals or entities that could be affected by disclosure of the information. A request to allow access, the response to such a request, and the order ruling on such a request must be written in a manner that does not disclose non- public information, are public records, and shall not themselves be sealed or made confidential. Alaska Admin. R. 37.7(b). The Alaska Court of Appeals discussed the constitutional right of access in Renkel v. State, 807 P.2d 1087, 1089 (Alaska Ct. App. 1991), implicitly but not expressly basing its ruling on First Amendment-based judicial access cases with respect to a courtroom closure issue. Among other things, the appeals court said that, absent particularized findings supporting closure, closure of a court to the press and public (in that case, during testimony of minor victims) was error that required reversal even in the absence of a specific claim of prejudice flowing from the closure. See also Bright v. State, 875 P.2d 100, 105–110 (Alaska Ct. App 2004), discussed in detail the introductory section I.A above (“This judicial power to restrict or deny public access to court proceedings may be exercised only when unusual circumstances imperil a more important societal value, and then only when alternative measures have been considered and found wanting; strictest scrutiny, specific finding supported in the record, and compelling reasons would be needed to justify decision to conduct trial in prison rather than in regular public courtroom.”).
In a criminal proceeding, the burden is on a defendant to show “a clear and present danger to the defendant’s right to a fair trial by an impartial jury.” Ariz. R. Crim. P. 9.3(b)(1); State v. Lee, 189 Ariz. 590, 601, 944 P.2d 1204, 1215 (1997).
Before disallowing camera coverage of a court proceeding, a court must make specific, on-the-record findings that there is a likelihood of harm arising from one or more of the following factors, and that the harm outweighs the benefit of coverage to the public:
- The impact of coverage upon the right of any party to a fair hearing or trial;
- The impact of coverage upon the right of privacy of any party, victim, or witness;
- The impact of coverage upon the safety and well-being of any party, victim, witness, or juror;
- The likelihood that coverage would distract participants or that coverage would disrupt or detract from the dignity of a proceeding;
- The adequacy of the physical facilities of the court;
- The timeliness of the request;
- Whether the person making the request is engaged in the dissemination of news to a broad community; and
- Any other factor affecting the administration of justice.
Ariz. R. Supreme Ct. 122(d).
Tedder requires that the proponent of closure must demonstrate a substantial probability that (1) irreparable damage to the defendant’s fair trial right will result from an open hearing and (2) alternatives to closure will not adequately protect the right to fair trial. 281 Ark. 152, 156-157, 662 S.W.2d 174, 176 (1983). The trial court’s findings must also be articulated and sufficiently specific to demonstrate on review that these requirements have been satisfied. Id. at 157, 662 S.W.2d at 176.
In NBC Subsidiary (KNBC-TV), Inc. v. Superior Court, 20 Cal. 4th 1178, 980 P.2d 337, 86 Cal. Rptr. 2d 778 (1999), the Court held that two things must occur before a court can close a civil or criminal proceeding. “First, a trial court must provide notice to the public of the contemplated closure” by a request made in open court or a public filing “reasonably in advance of the determination.” Id. at 1217. “Second, before substantive courtroom proceedings are closed or transcripts are ordered sealed, a trial court must hold a hearing and expressly find that (i) there exists an overriding interest supporting closure and/or sealing; (ii) there is a substantial probability that the interest will be prejudiced absent closure and/or sealing; (iii) the proposed closure and/or sealing is narrowly tailored to serve the overriding interest; and (iv) there is no less restrictive means of achieving the over-riding interest.” Id. at 1217-1218.
California Rule of Court, Rule 2.551, adopts essentially the same requirements to seal a court record.
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. Jones, 2020 CO 45; 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).
A party wishing to close a superior courtroom must file a motion asking for closure. In civil and family cases, the motion must be filed fourteen days before the closure sought, Conn. R. Super. Ct. § 11-20(e) (civil); id. § 25-59(e) (family). In criminal ones, the motion can be filed at any time. Id. § 42-49(e). In probate cases, a closure motion must be filed “at least three business days before” the closure sought. Conn. R. Probate P. 16.6(a).
Hearings on motions to close civil, criminal, or family proceedings must be listed for the public on the court’s docket and clerk’s offices’ billboards. Id. § 11-20(e) (civil), id. § 25-59(e) (family), id. § 42-49(e) (criminal). Hearings on motions to close civil or family proceedings must also be posted on the state judiciary’s website. Id. § 11-20(e) (civil); id. § 25-59(e) (family). Probate closure motion hearings must be posted “at a location in or adjacent to the court that is accessible to the public,” and the court has discretion to “give notice by another method if necessary to notify the public of the hearing.” Conn. R. Probate P. 16.7(a).
Family, criminal, or civil closure motions must be heard by the court so as “to afford the public an opportunity to be heard on the motion under consideration.” Conn. R. Super. Ct. § 11-20(e) (civil), id. § 25-59(e) (family), id. § 42-49(e) (criminal). Hearings on probate closure motions are open to the public, Conn. R. Probate P. 16.9(a), and “[a]ny person whom the court determines to have an interest in the proceeding may present evidence and argument concerning the public and private interests at issue.” Conn. R. Probate P. 16.7(b).
Unless specifically otherwise allowed by statute, any family, civil, or criminal order excluding the public from a proceeding may not take effect fewer than seventy-two hours after it has been issued. Id. § 11-20(f) (civil), id. § 25-59(e) (family), id. § 42-49(f) (criminal).
An order closing a civil or criminal proceeding must identify “the overriding interest being protected [by closure] and shall specify its findings underlying such order,” must be docketed, posted online, and on the clerk’s office bulletin board. Conn. R. Super. Ct. § 11-20(d) (civil), id. § 42-49(d) (criminal). Either the closure order must be written, or, the court must prepare a transcript of its verbal order and docket the transcript. Id. § 11-20(d) (civil), id. § 42-49(d) (criminal).
Any order closing a probate proceeding must identify “the interest being protected that overrides the public interest in open court proceedings,” the “the alternatives to closure . . . that the court considered and the reasons why the alternatives were unavailable or inadequate,” the reasons why the closure order “is no broader than necessary to protect the interest that overrides the public interest,” and the “the scope and duration of the order.” Conn. R. Probate P. 16.8(c).
Anyone affected by a civil or criminal closure order has the right to appeal the order to the state’s mid-level appellate court within seventy-two hours; an appeal stays the closure order. Conn. R. Super. Ct. § 11-20(f) (civil), id. § 42-49(f) (criminal). The rules do not provide the same appeal right or automatic stay for a family court closure order. See id. § 25-59(f).
In a federal civil proceeding, a motion to close the courtroom “shall be made as far in advance of the pertinent proceeding as possible in order to permit the public to intervene for the purpose of challenging the court closure,” and any order closing the courtroom generally may not take effect “except upon advance notice to the public.” D. Conn. Local Civ. R. 5(e)(1)(b). In civil proceedings to which a First Amendment right of access applies (which is most), “the Court must make particularized findings on the record demonstrating the need for [a courtroom closure], and any court closure order shall be narrowly tailored to serve the purpose of the closure.” D. Conn. Local. Civ. R. 5(e)(1)(a).
In a federal criminal proceeding, any motion to close the courtroom “must be made as far in advance of the pertinent proceeding as possible to permit any member of the public to intervene for the purpose of challenging any such order.” D. Conn. Local Crim. R. 57(b)(1)(B). The court may order closure “only if it makes particularized findings on the record that closure is essential to preserve compelling interests, and that the closure is narrowly tailored to serve those interests.” D. Conn. Local Crim. R. 57(b)(1)(A).
Trial courts must strictly adhere to a number of specific procedural prerequisites before granting a motion to seal. Most important are opportunity for the person objecting to the closure to be heard, specific findings on the record to justify closure and permit appellate review, and entry on the public docket of notice of a sealed document. Wash. Post v. Robinson, 935 F.2d 282, 288 (D.C. Cir. 1991). Generally, the procedural prerequisites are:
1. The government must file a written motion to seal, and notice of that motion must be entered in the public docket;
2. The trial court must promptly allow interested persons an opportunity to be heard before ruling on the motion and entering the sealing order;
3. The trial court must articulate specific findings on the record demonstrating that the decision to seal is narrowly tailored and essential to preserve a compelling government interest; however, the trial court may file its findings under seal if it is necessary to protect the secrecy of the document being sealed;
4. The trial court must also place the fact that a document has been sealed on the public docket; and
5. The government may seek leave of the court to file under seal its written motion to seal, and any supporting documents, pending the disposition of the motion by the court; however, notice of the written motion to seal must be entered on the public docket, and interested individuals must be afforded an opportunity to be heard before the trial court ultimately rules on the motion and makes specific findings on the record.
“Although permissible, parties cannot remove cases from the public view with ease.” Sokolov v. Marenberg, 2013 WL 6920602 at *1 (Del. Super. Dec. 20, 2013).
Under Chancery Court Rule 5.1(b)(1), before a Court will seal a document there must be good cause for sealing. “Good cause” exists “only if the public interest in access to Court proceedings is outweighed by the harm that public disclosure of sensitive, non-public information would cause. Examples of categories of information that may qualify as Confidential Information include trade secrets; sensitive proprietary information; sensitive financial, business or personnel information; sensitive personal information such as medical records; and personally identifying information such as social security numbers, financial account numbers, and the names of minor children.” Ch. Ct. R. 5.1(b)(2). One court has summarized the burden as being whether the party requesting sealing will suffer serious harm sufficient to keep the records out of the public record. ADT Holdings, Inc. v. Harris, 2017 WL 4317245 at *3 (Del Ch. Sept. 28, 2017).
The Superior Court Rules do not provide a similar list of categories of information eligible for sealing.
A party or non-party who wants to have materials filed under seal bears the burden of establishing good cause for sealing. The designation of material as Confidential Information constitutes a certification that the designating lawyer, party, or person has reviewed the document and believes that good cause for sealing exists. Ch. Ct. R. 5.1(b)(3). The Court retains authority to determine the scope or extent of any sealing and may review the information in camera to determine whether good cause exists for sealing. Ch. Ct. R. 5.1(b)(4).
District of Columbia
Where a presumption of access applies, courts must make specific, on-the-record findings about the need for closure. Press-Enterprise Co. v. Superior Court (Press-Enterprise II), 478 U.S. 1, 13-14 (1986). The D.C. Circuit adheres to the procedural safeguards established in other appellate courts that have followed Press-Enterprise. See, e.g., Oregonian Publ’g Co. v. United States Dist. Court, 920 F.2d 1462, 1466 (9th Cir. 1990); United States v. Haller, 837 F.2d 84, 87 (2d Cir. 1988); In re Washington Post Co., 807 F.2d 383 (4th Cir. 1986). For example, within the D.C. Circuit, a court may grant a motion to seal a plea agreement only if:
“(1) The government . . . file[s] a written motion to seal the plea agreement and notice of that motion must be entered in the public docket;
2) The trial court . . . promptly allow[s] interested persons an opportunity to be heard before ruling on the motion and entering the sealing order;
3) The trial court . . . articulate[s] specific findings on the record demonstrating that the decision to seal the plea agreement is narrowly tailored and essential to preserve a compelling government interest; however, the trial court may file its findings under seal if it is necessary to protect the secrecy of the plea agreement;
4) The trial court . . . also place[s] the fact that it has sealed the plea agreement on the public docket; and
5) The government . . . [has an opportunity to] seek leave of the court to file under seal its written motion to seal along with the plea agreement itself, and any supporting documents, pending the disposition of the motion by the court; however, notice of the written motion to seal must be entered on the public docket, and interested individuals must be afforded an opportunity to be heard before the trial court ultimately rules on the motion and makes specific findings on the record.”
Washington Post v. Robinson, 935 F.2d 282, 289 (D.C. Cir. 1991). Failing to observe the procedural prerequisites to closure will generally result in an appellate court vacating the district court ruling. Id. at 292.
At least one member of the media must generally be given notice of a motion for closure of a criminal proceeding and be given an opportunity to be heard on the motion. Miami Herald Publ’g Co. v. Lewis, 426 So. 2d 1, 7-8 (Fla. 1983). The notice given to the media should inform them of the reason for the hearing. Palm Beach Newspapers, Inc. v. Cook, 434 So. 2d 355, 359 (Fla. Dist. Ct. App. 1983). An evidentiary hearing at which findings of fact should be made by the court must be held. Lewis, 426 So. 2d at 7-8. The proponent of closure has the burden of producing evidence and proving by a greater weight of the evidence that closure is necessary. A transcript of any closed hearing should later be made available to the media when the danger of prejudice has dissipated.
In the context of civil proceedings, the “heavy” burden of proof “shall always be on the party seeking closure.” Barron v. Florida Freedom Newspapers, Inc., 531 So.2d 113, 118-119 (Fla. 1988). Under Barron, to overcome the strong presumption of openness in civil proceedings a proponent of closure must satisfy a three-prong test. The first prong requires a proponent to show that closure is necessary: “(a) to comply with established public policy set forth in the constitution, statutes, or case law; (b) to protect trade secrets; (c) to protect a compelling government interest [e.g., national security; confidential informants]; (d) to obtain evidence to properly determine legal issues in a case; (e) to avoid substantial injury to innocent third parties [e.g., to protect young witnesses from offensive testimony; to protect children in a divorce]; or (f) to avoid substantial injury to a party by disclosure of matter protected by a common law or privacy right not generally inherent in the specific type of civil proceeding sought to be closed.” 531 So. 2dat 118. For privacy concerns, “it is generally the content of the subject matter rather than the status of the party that determines whether a privacy interest exists” that permits closure. Id. However, the privacy interest can be negated where “the content of the subject matter directly concerns a position of public trust held by the individual seeking closure.” Id. Second, the court must find that no reasonable alternatives exist to reach the desired result. Id. Finally, if no reasonable alternative exists, then the court must ensure that the means are the least restrictive necessary to accomplish the goal. Id. Florida Rule of Judicial Administration 2.420 establishes procedures for filing motions to seal records in non-criminal cases and references the Barron standards.
Florida courts have generally not held that notice is a prerequisite to motions to seal court records. However, at least one district court of appeal has held that if the media is already a party to the action, the media party must be provided notice and opportunity to be heard on motions the defendant intended to file under seal. Media Gen. Operations v. State, 933 So. 2d 1199, 1201 (Fla. 2d DCA 2006).
A motion for closure of proceedings “shall receive no consideration by a trial court unless it is in writing, has been served upon the opposing party, has been filed with the clerk of the court and posted on the case docket (as notice to the press and the public) for at least one twenty-four hour period in advance of the time when the motion will be heard, and unless it alleges grounds for relief with … particularity.” R.W. Page Corp. v. Lumpkin, 249 Ga. 576, 580 (1982).
With respect to court records, court rules, including, e.g., Uniform Superior Court Rule 21, set forth specific and stringent procedures that must be followed before court records may be withheld from the public. First, the sealing of court files requires the submission of a motion setting forth the legal and evidentiary grounds for the relief sought. Second, the court must conduct a hearing on the motion where all interested parties, including the public, may be heard. Third, any order sealing court documents must identify the specific parts of the court’s file to which the order applies and delineate the “nature and duration” of the limits on public access. Rule 21.1. Finally, “[a]n order limiting access shall not be granted except upon a finding that the harm otherwise resulting to the privacy of a person in interest clearly outweighs the public interest.” Rule 21.2. See generally In re Atlanta Journal, 271 Ga. 436, 437–38 (1999). See also Wall v. Thurman, 283 Ga. 533 (2008) (holding that trial court erred in sealing case records without holding a hearing or making findings of fact regarding the balancing of public and private interests); Altman v. Altman, 301 Ga. 211, 217–18 (2017) (trial court’s conclusory findings that the transcript of in-chambers interviews of children in a divorce matter is “of a nature that [is] protected and privileged from disclosure as public record” and that there has been “good cause shown” are insufficient to support a restriction on public access to court records).
The Supreme Court of Hawai’i requires that both procedural and substantive prerequisites be met in order to overcome the public’s qualified right of access to criminal trials. Oahu Publ’ns Inc. v. Ahn, 133 Hawai’i 482, 497, 331 P.3d 460, 475 (2014), as corrected (Aug. 5, 2014) (citing Oregonian Publ’g Co. v. U.S. Dist. Court for Dist. of Or., 920 F.2d 1462, 1466 (9th Cir. 1990)).
The “procedural prerequisites to entry of an order closing a criminal proceeding to the public [are] (1) those excluded from the proceeding must be afforded a reasonable opportunity to state their objections; and (2) the reasons supporting closure must be articulated in findings.” Ahn, 133 Haw. at 497–98, 331 P.3d at 475–76 (citing United States v. Brooklier, 685 F.2d 1162, 1167–68 (9th Cir. 1982)).
The substantive reasons that must be found and included in the findings are: “(1) [the] closure serves a compelling interest; (2) there is a substantial probability that, in the absence of closure, this compelling interest would be harmed; and (3) there are no alternatives to closure that would adequately protect the compelling interest.” Ahn, 133 Haw. at 497–98, 331 P.3d at 475–76 (citing Oregonian, 920 F.2d at 1466).
The Ahn case provides the first and, to date, only time the Hawaii Supreme Court has applied this standard. (Earlier cases including Gannett Pac. Corp. v. Richardson, 59 Haw. 224, 228, 580 P.2d 49, 54 (1978), and Honolulu Advertiser, Inc. v. Takao, 59 Haw. 237, 238, 580 P.2d 58, 60 (1978), had articulated a less media-friendly standard, based not on the First Amendment but on a common-law tradition of open criminal proceedings (Takao, 59 Haw. at 239, 580 P.2d at 59), by which a court could deny access to criminal proceedings and court records if “there is a substantial likelihood that an open hearing as to that part of the proceedings would interfere with the defendant’s right to a fair trial by an impartial jury.” Gannett, 59 Haw. at 228, 580 P.2d at 574. Although the Hawaii Supreme Court did not explicitly overrule Richardson and Takao in Ahn, the standard articulated in Ahn appears to render obsolete the “substantial likelihood” standard set forth in those earlier cases.)
Ahn involved a highly publicized criminal trial of federal agent Christopher Deedy, who had been charged with second-degree murder for shooting and causing the death of a patron in a fast food restaurant in Waikiki. The five-week criminal trial, which ended in a deadlocked jury and ensuing mistrial, attracted “[c]onsiderable public attention and media coverage.” 133 Hawai’i at 487, 331 P.3d at 465. During jury deliberations on the final day of the trial, the trial judge held “five court proceedings that were not open to the public,” but attended by prosecutors and defense counsel, to “address matters relating to the jury.” Id. at 486, 331 P.3d at 464. Three of the five non-public proceedings took place before the case was called in open court. Id. The fourth non-public proceeding was a bench conference in open court, and the fifth took place after the trial judge ordered the courtroom cleared of all members of the public. Id. at 487, 331 P.3d at 465. The trial court later reopened the courtroom, brought in the jury, polled the jurors on their inability to reach a unanimous verdict, and declared a mistrial. Id. The court sealed all portions of the transcript related to the five non-public sessions. Id. The trial court did not provide any reasoning for clearing the courtroom, holding the five non-public proceedings, and sealing the transcripts of those five proceedings. Id. at 487–88, 331 P.3d at 465–66.
After the mistrial was declared, the Honolulu Star-Advertiser newspaper and Hawai’i News Now (the news arm of television stations KHNL and KGMB) filed a petition with the state Supreme Court for (1) a writ of prohibition preventing the trial court from enforcing any order sealing portions of the transcripts of the five closed proceedings, and also ordering the trial court to unseal all of those transcripts; and (2) a writ of mandamus prohibiting the trial court from closing the courtroom either in the re-trial of the Deedy case, or in any other criminal proceeding. Id. While the media organizations’ petition was pending, the Hawaii Supreme Court temporarily remanded the case to the trial court so that the petitioners could file a request with the circuit court to seek access to the sealed filings. Id. The petitioners duly filed that request, and after a hearing, the trial court issued an order that, although partially granting the request for unsealing the transcripts (with jurors’ names redacted), also attempted to justify the trial court’s initial decision to close the proceedings:
The Partial Order to Unseal acknowledged that “the news media have a qualified right of access to judicial proceedings and records.” Further, the order noted that “[a] transcript of any proceedings that have been closed . . . may be released when the danger of prejudice has passed and the factors militating in favor of closure no longer exist.”
The Partial Order to Unseal explained the circuit court’s actions, indicating the circuit court’s “belief that necessary discussions between the [circuit court] and counsel, on the one hand, and deliberating jurors, on the other, traditionally and historically have been closed to the public[.]”
During these necessarily narrowly tailored discussions, the [circuit court] must avoid intruding upon or inquiring into the jury’s deliberations, and must avoid exposing the individual jurors to anything that may in any way improperly influence their continuing decision-making processes.
The circuit court noted that requiring a juror to answer questions in front of family and friends of the Defendant, the alleged victim, and the news media could “expose a juror to pressure and matters which are not part of the evidence to be considered, but it also could hamper the [circuit court’s] search for candid answers from that juror.” The circuit court noted that privacy and security of the jurors and the importance of preserving an impartial jury to ensure a fair trial on behalf of both a defendant and the State, as the specific reasons supporting the closure:
For all of these reasons, in order to preserve a juror’s privacy and security and the integrity of a fair and impartial jury decision based solely upon the trial evidence and the law provided by the Court, and to protect the right of both parties to a fair trial and verdict, public access would not play a significant positive role in the functioning of this process.
Therefore, the circuit court concluded that because “public access would not play a significant positive role,” the closure of the courtroom and denial of public access to the transcript of the closed proceedings was warranted.
Id. at 489, 331 P.3d at 467.
The unsealed transcripts revealed that the five non-public proceedings involved discussions over a juror who had greeted a member of the public that the jury foreperson thought might be a “friend of a friend” of a family interested in the outcome of the trial. Id. at 490–92, 331 P.3d at 468–70. After questioning by the court, the juror was allowed to remain on the jury. Id.
The Supreme Court used the Ahn case to address a number of questions: (1) “the extent to which our Constitution and history pronounce . . . rights of public access to courtrooms” similar to the qualified First Amendment right to such access recognized by the U.S. Supreme Court; (2) the “minimum procedures that must be observed” to protect that right; (3) whether that right applies “to midtrial examination of jurors regarding allegations of misconduct;” and (4) “under what circumstances the public has a right of access to a transcript of a closed proceeding.” Id. at 493, 331 P.3d at 471.
On the first question, the Hawaii Supreme Court held that the Hawaii constitution provides “at least as much protection of the right of the public to access criminal trials as has been found by the United States Supreme Court in the First Amendment to the United States Constitution.” Id. at 494, 331 P.3d at 472. The Hawaii Supreme Court further noted the state courts’ “long tradition of accessibility by the public,” dating back to the courts of the Kingdom (and later United States territory) of Hawaii that was “firmly embedded in our system of jurisprudence as a general policy of open trials” that “are a fundamental component of our system of law.” Id. at 495, 331 P.3d at 473 (quotation marks omitted). The Supreme Court noted that courts’ openness “serves as a safeguard of the integrity of our courts” and that “[t]he corrective influence of public attendance at trials for crime is important to the liberty of the people.” Id. (quotation marks and certain brackets omitted).
On the question of procedures that must be observed to protect the right of public access to criminal trials, the Supreme Court noted the right “is not absolute,” id., at 496, 331 P.3d at 474 (quoting Globe Newspaper Co. v. Superior Court for Norfolk Cnty., 457 U.S. 596, 606 (1982)), and, quoting heavily from U.S. Supreme Court and Ninth Circuit opinions articulating the federal constitutional standard, set forth the following rules:
[T]he qualified right of public access provided by the First Amendment and article 1, section 4 can be overcome “only by an overriding interest based on findings that closure is essential to preserve higher values and is narrowly tailored to serve that interest.” Press-Enterprise I, 464 U.S. at 510, 104 S.Ct. 819 (emphasis added); Press-Enterprise II, 478 U.S. at 9–10, 106 S.Ct. 2735; see also Globe Newspaper Co., 457 U.S. at 606–07, 102 S.Ct. 2613 (“Where . . . the State attempts to deny the right of access in order to inhibit the disclosure of sensitive information, it must be shown that the denial is necessitated by a compelling governmental interest, and is narrowly tailored to serve that interest”). The trial court must articulate the interest the closure protects, “along with findings specific enough that a reviewing court can determine whether the closure order was properly entered.” Press-Enterprise I, 464 U.S. at 510, 104 S.Ct. 819; Press–Enterprise II, 478 U.S. at 10, 106 S.Ct. 2735.
Additionally, if the court is contemplating whether closure of the courtroom is necessary, it must provide a reasonable opportunity for the public to object. “[T]he press and the general public must be given an opportunity to be heard on the question of their exclusion.” Globe Newspaper Co., 457 U.S. at 609 n. 25, 102 S.Ct. 2613 (citing Gannett Co., 443 U.S. at 401, 99 S.Ct. 2898 (Powell, J., concurring)). The requirement of notice continues to apply when the compelling interest asserted is protection of the defendant’s Sixth Amendment right to a fair trial by an impartial jury. United States v. Brooklier, 685 F.2d 1162, 1168 (9th Cir.1982); see also ABC, Inc. v. Stewart, 360 F.3d 90, 95 (2d Cir.2004) (noting that no notice had been provided before closure of voir dire in jury selection); In re S.C. Press Ass’n, 946 F.2d 1037, 1040 (4th Cir.1991).
The United States Supreme Court has not explicated a standard for notice. However, individual notice may be practicable under certain circumstances.
The requirements that must be satisfied by a court in order to overcome the qualified right of the public to access criminal trials may be divided into procedural and substantive elements. Oregonian Pub. Co. v. U.S. Dist. Court for Dist. of Or., 920 F.2d 1462, 1466 (9th Cir.1990). The “procedural prerequisites to entry of an order closing a criminal proceeding to the public [are] (1) those excluded from the proceeding must be afforded a reasonable opportunity to state their objections; and (2) the reasons supporting closure must be articulated in findings.” Brooklier, 685 F.2d at 1167–68. The substantive reasons that must be found and included in the findings are: “(1) [the] closure serves a compelling interest; (2) there is a substantial probability that, in the absence of closure, this compelling interest would be harmed; and (3) there are no alternatives to closure that would adequately protect the compelling interest.” Oregonian Pub., 920 F.2d at 1466 (citing Press-Enterprise II, 478 U.S. at 13–14, 106 S.Ct. 2735).
Id. at 496–98, 331 P.3d at 474–76.
The Supreme Court then turned to the more specific questions of whether a qualified right of public access existed in the circumstances raised in Ahn—namely, the mid-trial examination of jurors in a criminal trial regarding allegations of potential juror misconduct—whether the trial court’s closure of such a proceeding had violated that right, and finally, under what circumstances the public can gain access to sealed transcripts of court proceedings. For both of these questions, the Court examined “whether experience and logic indicate” that the public should be granted access. Id. at 498, 331 P.3d at 476.
On the question of the right of access to a mid-trial juror examination for potential misconduct, the Court noted that such an examination could implicate “the defendant’s Sixth Amendment right to an impartial jury,” and that those Sixth Amendment rights “may conflict with the right of access of the public.” Id. Nonetheless, the Court held that “at a minimum, a qualified First Amendment interest” existed to access to such a mid-trial juror examination regarding potential misconduct. Id. at 504, 331 P.3d at 482. The Court stated that, because there “is no clear tradition of either open or closed proceedings when a court conducts a midtrial examination of jurors regarding potential misconduct,” the “experience prong of the ‘logic and experience’ test provides little guidance in this case.” Id. at 499, 501, 331 P.3d at 477, 479. By contrast, the Court identified “six ‘societal interests’ that are advanced by open proceedings,” all of which were present in Ahn. Id. at 502, 331 P.3d at 480. First, access to the proceeding “would educate the public on the importance of an impartial jury.” Id. Second, access “would provide assurance that the system is fair to all concerned because it would ensure the public that significant misconduct, if any, is being appropriately addressed and managed.” Id. Third, “public access to criminal proceedings also has a ‘significant community therapeutic value’ because it provides an ‘outlet for community concern, hostility, and emotion’” especially where, as in the present high-profile case, “the public ha[d] made a significant investment of interest and attention” such that “closing a portion of the proceeding [will] undoubtedly breed concern and result in unbridled speculation, whereas open proceedings will resolve such concerns.” Id. Fourth, the proceeding’s openness would “serv[e] as a check on ‘the misconduct of participants’ by exposing the judicial process to public scrutiny, thus discouraging decisions based on secret bias or partiality.” Id. Fifth, “public access enhances the performance of all involved” in the proceeding by “assur[ing] the public of the integrity of the participants in the system” and “elevat[ing] confidence in the judicial process by providing greater transparency.” Id. Sixth, “[p]ublic observation of juror examination will discourage perjury because members of the public who might be able to contradict false testimony will not learn of that testimony unless the proceedings are open to the public.” Id. Based on these considerations, the Supreme Court held “that the qualified right of access to criminal trials under article 1, section 4 of the Hawai’i Constitution is not extinguished by the mere necessity to conduct midtrial examination of jurors to investigate potential juror misconduct.” Id. at 504, 331 P.3d at 482.
Having decided that the public had a qualified right of access to the five proceedings at issue in Ahn, the Supreme Court held that the trial court, in closing the courtroom to question the jurors, failed to protect the public’s access rights under the First Amendment and the Hawaii constitution. Id. at 504–05, 331 P.3d at 482–83. The Supreme Court based this holding on the trial court’s failure to provide any reason for closing the courtroom at the time it did so; because “[n]o contemporaneous articulation was made by the circuit court . . . the procedures of the circuit court were insufficient to protect” the public’s access rights. Id. at 505, 331 P.3d at 483.
The Court also noted that the circuit court attempted, after the fact, to justify the closure by pointing to the need for “the privacy and security of the jurors and the importance of preserving an impartial jury to ensure a fair trial.” Id. Those reasons, however, were inadequate, in and of themselves, to “provide sufficient justification for a closure of a court proceeding.” Id.
Although the Supreme Court declined to decide whether the risk of juror prejudice would have “outweighed the public right of access in the present case,” the Court provided a procedural roadmap for future trial courts to decide whether the potential prejudice to jurors would require courtroom closure:
Specifically, the circuit court may consider the nature of the likely testimony provided by individual jurors, the probability of such information reaching the remaining jurors, and the likely prejudicial impact of this information. Importantly, the court should always consider the availability or efficacy of alternatives to closure that could neutralize the effect of the reach of such prejudicial information. Rather than articulating generalized statements of policy, a court must make factual findings specific to the circumstances that indicate the substantial likelihood that an open hearing would interfere with the defendant’s right to a fair trial by an impartial jury.
Id. at 504, 331 P.3d at 482.
On the question of public access to the transcripts of the non-public proceedings, the Supreme Court stated that “the firmly embedded general policy of openness . . . also applies to the transcript of closed proceedings,” and that “[h]istorically, post-trial transcript access has been granted as soon as the factors which prompted hearing closure have been resolved.” Id. at 506, 331 P.3d at 484. The Supreme Court concluded that “[t]herefore . . . precedent requires the release of the transcript once any competing interests that militate for closure of a hearing traditionally open to the public are no longer viable.” Id. As with access to mid-trial juror examinations, the Court noted “logical interests” that dictated access to transcripts of closed proceedings:
The same logical interests that animate the public’s right of access to courtroom proceedings also underlie the benefits that result from public access to a transcript of closed proceedings once the danger that precipitated closure has passed. Unreasonable delay in the release of a transcript “frustrates[s] the ‘community therapeutic value’ of openness.” Press-Enterprise II, 478 U.S. at 13, 106 S.Ct. 2735. Public access to a transcript of a closed proceeding also “enhances both the basic fairness of the criminal trial and the appearance of fairness so essential to public confidence in the criminal justice system.” Press-Enterprise I, 464 U.S. at 508, 104 S.Ct. 819. Further, once the trial is completed, a defendant’s article 1, section 14 rights to a fair and impartial jury and public trial under the Hawai’i Constitution are typically no longer concerns, and consequently there would be no logical reason to continue to deny the right of access of the public for the purpose of protecting a defendant’s right to a fair trial.
The Court therefore held that “a qualified public right of access to a transcript of a closed proceeding is present under both the First Amendment and article 1, section 4 of the Hawai’i Constitution, once the overriding interests that militated for closure of the proceeding are no longer viable.” Id. at 507, 331 P.3d at 485. Moreover, denial of access to the transcript must be explained by the trial court and provide a procedure by which to challenge the denial:
“Indeed, the denial of the motion to release the transcripts was in itself a denial of the right of access protected by the first amendment.” Brooklier, 685 F.2d at 1172. “It must be tested by the same standard and must satisfy the same procedural prerequisites as the initial closure.” Id. Therefore, the same procedural and substantive protections that must be observed by a court considering closure of courtroom proceedings in which the public has a potential qualified right of public access must also be observed if a court is contemplating to deny access to the transcript of the closed proceeding.
If public access to a transcript is to be denied, “a trial judge should explain why the material is entitled to privacy.” Brooklier, 685 F.2d at 1172. “[I]f a court contemplates sealing a document or transcript, it must provide sufficient notice to the public and press to afford them the opportunity to object or offer alternatives.” Phoenix Newspapers, 156 F.3d at 951. “If objections are made, a hearing on the objections must be held as soon as possible.” Phoenix Newspapers, 156 F.3d at 949. The hearing should provide a “meaningful opportunity to address sealing the transcripts on the merits, or to discuss with the court viable alternatives.” Id.
Substantively, the trial court is required to make specific findings demonstrating a compelling interest, a substantial probability that the compelling interest would be harmed, and there is no alternative to continued sealing of the transcript that would adequately protect the compelling interest. Id. at 949. The trial court may not rely on “generalized concerns” but must indicate facts demonstrating “a compelling interest justifying the continued sealing of the hearing transcript.” Id. at 950. Additionally, the court must “specifically explain the necessary connection between unsealing the transcript” and the infliction of irreparable damage resulting to the compelling interest. Id. (holding that the refusal to unseal the transcript was in error, as the court did not explain the required connection between unsealing the transcript and irreparable damage to the compelling interest).
Further, only access to those parts of transcript “reasonably entitled to privacy” should be denied. Press-Enterprise I, 464 U.S. at 513, 104 S.Ct. 819. Therefore, the “trial judge should seal [ ] such parts of the transcript as necessary to preserve the anonymity of the individuals sought to be protected.” Id.
Id. The Supreme Court held that the trial court in Ahn failed to “adequately protect the public’s right of access” to the transcript of the closed proceedings by (1) denying access for more than six months, when juror privacy and bias was evidently not at risk, based on the eventually released contents of the transcript with jurors’ names redacted, and (2) failing to “provide notice regarding its intention to deny access to the transcript and to hold a hearing allowing objections and alternatives to be presented if any person wished to be heard,” and further failing to:
make specific findings on the record: (1) identifying the compelling interest that would be harmed by public access to the transcript, (2) demonstrating that a substantial risk of harm to the compelling interest would occur due to public access to the transcript, and (3) identifying any alternatives to denial of public access that the court considered but found insufficiently protective.
Id., 133 Hawai’i at 507–08, 331 P.3d at 485–86.
Although the Supreme Court’s opinion in Ahn did not address all circumstances (for example, the case does not discuss public access to civil, as opposed to criminal, courtroom proceedings and records), the opinion’s combination of sweeping proclamations of the public’s right to access criminal trial proceedings, and specific procedural instructions on factors that courts must consider in determining whether to close such proceedings, provides an analytical framework that Hawaii courts are likely to follow, or at least find highly persuasive, whenever considering public access to court proceedings and records.
Following the U.S. Supreme Court’s decision in Press-Enterprise v. Superior Court, 464 U.S. 501 (1984), Idaho courts have held that a judge considering closing a proceeding must follow certain procedures to ensure that closing the proceedings will not infringe upon First Amendment rights. Specifically, a judge must hold a hearing on the need for closure and allow the media and others to argue against the closure. A judge considering closure must determine whether: (1) the requested closure would serve a compelling interest (e.g., criminal defendant’s right to a fair trial); (2) there is a substantial probability that, in the absence of such closure, this compelling interest would be harmed, and (3) there are no alternatives to closure that would adequately protect the compelling interest at stake (e.g., change of venue, sequestering the jury, postponing the trial until the effect of publicity have diminished). Press-Enterprise Co. v. Superior Court, 478 U.S. 1, 14 (1986) (“Press-Enterprise II”). Where the public has a qualified First Amendment right of access, restrictions on that right must be “essential to preserve higher values” and “narrowly tailored to serve that interest.” Press-Enterprise II, 478 U.S. at 13–14; see, e.g., In the Matter of an Application for A Search Warrant, Memorandum Decision and Order Denying Motion to Unseal Search Warrants and Affidavit Documents at 2–3, Fourth Judicial District, Case No. CV OT 0916109 (Ada Co., Idaho, Sept. 19, 2006). After completing such analysis, a judge must issue written findings supporting the closure order in order to allow appellate review.
To exclude public access to a court record, the procedures in Indiana Administrative Rule 9(G)(5) must be followed. If a record is excluded from public access under subsections 9(G)(1), no notice of exclusion is required. Admin. Rule 9(G)(a)(ii). But if a record is excluded from public access under subsections 9(G)(2) (individual case records that must be excluded), 9(G)(3) (court administration records that must be excluded from public access), or 9(G)(4) (other court records), the party submitting the confidential record must provide notice that the record should be excluded. Admin. Rule 9(G)(5)(a)(i). Note that court records that are otherwise subject to the general access rule have additional procedural requirements, including a verified written request, notice and right to respond, a public hearing, and a written order. Admin. Rule 9(G)(4). Where only a portion of the court record has been excluded from public access under 9(G)(2) or 9(G)(3), there must be a public access version and may be a non-public access version. Admin. Rule 9(G)(5)(b).
To exclude public access to a criminal proceeding, the court must first give “the parties and the general public a meaningful opportunity to be heard.” Ind. Code § 5-14-2-3. The court must set a hearing date sufficiently in advance, id. § 5-14-2-4, and must post a copy of the hearing notice within the court that is accessible to the general public, id. § 5-14-2-5. Indiana Code Section 5-14-2-6 explains the hearing procedures in detail.
In Des Moines Register & Tribune Co. v. Iowa District Court, 426 N.W.2d 142, 147-48 (Iowa 1988), the court adopted the procedural requirements of Press Enterprise II to require specific factual findings on the grounds for closure and satisfaction of the Wifvat standard. See “Overcoming a Presumption of Openness” section above.
Before restricting access to proceedings, a trial judge in Kansas must conduct a hearing and “make findings and state for the record the evidence upon which the court relied and the factors which the court considered in arriving at its decision.” Kansas City Star Co. v. Fossey, 630 P.2d 1176, 1184 (Kan. 1981).
The Kansas Supreme Court said that requiring the trial judge to state the findings and basis for them “will protect both the right of the defendant to a fair trial and the right of the public and news media to have access to court proceedings.” Fossey, 630 P.2d at 1184. American Bar Association standards that the state supreme court adopted included comment providing that
“any motion to close a pretrial proceeding or seal court records be made with the consent of the defendant. The motion, however, cannot be granted unless the court affirmatively concludes that the requirements of the clear and present danger and least restrictive alternative tests have been met. The burden of proof is on the party making the motion.”
Fossey, at 1183 (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)).
Since Fossey, the Kansas Supreme Court has emphasized that, only after making “specific findings” may a judge interfere with the media’s opportunity to report on court proceedings. State v. Alston, 887 P.2d 681, 692 (Kan. 1994).
Generally, there is a presumption of openness “for everything filed with the courts.” Fiorella v. Paxton Media Grp., LLC, 424 S.W.3d 433, 439 (Ky. Ct. App. 2014). The burden to justify closure must be borne by those who seek to seal court records. Lexington Herald-Leader Co. v. Meigs, 660 S.W.2d 658, 661 (Ky. 1983) (citing Neb. Press Assn. v. Stuart, 427 U.S. 539, 558–59, 569–70 (1976)); see also Cline v. Spectrum Care Academy, Inc., 316 S.W.3d 320, 325-326 (Ky. Ct. App. 2010). There must be a hearing prior to closing a court proceeding or record. Before closure, the “trial judge should consider the utility of other reasonable methods available to protect the rights of the [party] short of closure.” Meigs, 660 S.W.2d at 661. If the Court decides that closure is essential to protect the interest alleged by the party seeking closure, the Court must make specific written findings as to why closure is necessary. Id.
The “public must be given an opportunity to be heard before closure is ordered.” State v. Womack, 551 So.2d 855, 858 (La. App 1989). Additionally, “[i]t is essential that the trial court support any decision to close with specific reasons and findings on the record in order to facilitate appellate review.” State v. Widenhouse, 556 So. 2d 187, 190 (La. Ct. App. 1990).
In a case involving access to jury voir dire under the Sixth Amendment (not a spectator or media challenge under the First Amendment), the Supreme Judicial Court followed federal precedent requiring that a trial court must find that four criteria are met before it may exclude the public from proceedings in a criminal trial: (A) the party seeking to close the hearing must advance an overriding interest that is likely to be prejudiced; (B) the closure must be no broader than necessary to protect that interest; (C) the trial court must consider reasonable alternatives to closing the proceeding; and (D) it must make findings adequate to support the closure. Roberts v. State, 2014 ME 125, ¶ 24, 103 A. 3d 1031 (abrogated on other grounds).
A Superior Court Justice had previously endorsed Press-Enterprise II in the context of a decision vacating an impoundment order. In re Am. Journal, 1986 Me. Super. LEXIS 347 *5 (Me. Super. Ct. Dec. 3, 1986) (“[T]he guidelines [in Press-Enterprise II] should be used in all pretrial criminal hearings that meet the criteria established by the U. S. Supreme Court”). In Press-Enterprise II, the Supreme Court held that, where a First Amendment presumption of access applies, a court may close proceedings only after making specific, on-the-record findings: (1) that closure is necessary to further a compelling governmental interest; (2) the closure order is narrowly tailored to serve that interest; and (3) that no less restrictive means are available to adequately protect that interest. Press-Enterprise Co. v. Superior Court (Press-Enterprise II), 478 U.S. 1, 13–14 (1986).
There are two main procedural prerequisites to closure: (1) prior notice of potential closure, and (2) findings of fact supporting closure.
First, “[a]dequate public disclosure of a motion for closure is particularly important because, without it, the public’s right of open access to courtrooms might not be asserted by parties to a particular proceeding.” Baltimore Sun Co. v. Colbert, 593 A.2d 224, 229 (Md. 1991); see also Baltimore Sun Co. v. Mayor & City Council of Baltimore, 755 A.2d 1130, 1136–37 (Md. 2000). A closure motion “must be docketed in advance of the time of the hearing to provide notice to afford an opportunity to oppose the closure motion, as well as to present alternatives for closure. The court should provide individuals opposing closure an opportunity to object and to state the reasons for that opposition before ruling on the closure motion.” Colbert, 593 A.2d at 229.
Maryland courts have remanded cases where the trial court failed to abide by the requirements of advance notice of closure motions. In Baltimore Sun v. Thanos, 607 A.2d 565 (Md. Ct. Spec. App. 1992), for example, the question was whether a presentence investigation report otherwise confidential pursuant to Maryland Code, Article 41, § 4-609 [Repealed by Acts 1999, ch. 54 §1 (current version at Md. Code Ann., Corr. Servs. § 6-112)] was nevertheless subject to inspection once it had been entered into evidence in the penalty phase of a death penalty prosecution. The court held that because the lower court had not given notice of the sealing request and an opportunity for objecting parties to be heard or made the required findings, it was required to remand the case to the Circuit Court for further consideration. Thanos, 607 A.2d at 574–75. Likewise, in Mayor & City Council, the Court of Appeals held that the trial court had erred in closing the courtroom in a civil case “immediately upon request by the parties” and by sealing the court record “within 24 hours thereafter” without affording the press and public an opportunity to object. 755 A.2d at 1136–37.
Second, a “court ruling on a motion to seal judicial records should articulate the interest sought to be protected by the seal, supported by specific findings.” Sumpter v. Sumpter, 50 A.3d 1098, 1106 (Md. 2012). Failure to do so will result in remand. Colbert, 593 A.2d 224 at 231. In Colbert, the trial made only a “broad statement that it found that the exclusion of the public was mandated in order to afford Colbert a fair trial.” Id. The Court of Appeals found this “insufficient to warrant exclusion of the press and the public from the hearing.” Id.
The Maryland Rules governing public access to judicial records are in accord. They require that a court considering a motion to deny public access to such records refrain from entering a final order on any such motion until there has been “an opportunity for a full adversary hearing.” Md. Rule 16-912(d)(1). And the Maryland Rules also require findings on the record: “A final order shall include findings regarding the interest sought to be protected by the order.” Md. Rule 16-912(d)(2).
Proceedings. Massachusetts follows the Press-Enterprise precedent and works on the assumption of openness. Closure will only be granted when there is an “overriding interest that is likely to be prejudiced,” and closure must be narrowed to protect the interest. Boston Herald, Inc. v. Super. Ct. Dept. of Trial Ct., 421 Mass. 502, 505–506 (1995) (citing Commonwealth v. Martin, 417 Mass. 187, 194 (1994)). The court must also consider alternatives to closure, and findings must be issued to support the decision. Id. at 506. Even in nontraditional settings, like hospitals, judicial procedures to closure must meet the same standards as in the traditional courtroom, no matter how informal the proceeding. Id. at 506–507.
Records. The Uniform Rules on Impoundment Procedure (a subset of the Massachusetts Trial Court Rules, all listed under Trial Court Rule VIII) govern the impoundment of otherwise-public records in civil and criminal proceedings in Massachusetts courts, except for those in the Supreme Judicial Court, which are governed by S.J.C. Rule 1:15, § 1. See Unif. R. Impound. P., Rule 1(a); S.J.C. Rule 1:15, § 1(b) (Trial Court Rule VIII governs appeals courts, with some modifications specified in this section). Impounded records differ from sealed records in that the former are “open for inspection by the court, attorneys of record, and the parties, but not the public,” whereas “sealed” documents are typically only available to the court, unless the court specifically orders limited disclosure. Unif. R. Impound. P., Rule 1 (Committee Notes, “Scope and the Presumption of Public Access to Case Records” section) (citations omitted).
The Uniform Rules on Impoundment were significantly amended in 2015; consequently, many pre-2015 court decisions interpreting the Rules are now out of date. See, e.g., Chief Justice Paula M. Carey and Joseph Stanton, Amendments to the Uniform Rules of Impoundment Procedure, Boston Bar Journal (July 8, 2015) (describing the 2015 amendment).
“[I]mpoundment is always the exception to the rule, and the power to deny public access to judicial records is to be ‘strictly construed in favor of the general principle of publicity’.” Republican Co. v. Appeals Ct., 812 N.E.2d 887, 892 (2004) (quoting Commonwealth v. Blondin, 324 Mass. 564, 571 (1949)). An order of impoundment may only be entered upon a written finding of good cause and must be narrowly tailored to meet the asserted need. Unif. R. Impound. P., Rule 8. The “good cause” determination requires the judge to balance factors such as constitutional rights, public and personal safety, investigative secrecy, the extent of community interests, and privacy interests. See Unif. R. Impound. P., Rule 7 (Committee Notes, “Balancing Test” section) (collecting cases).
“Good cause” determinations vary depending on the type of record at issue. A legitimate expectation of privacy is typically, although not always, sufficient for good cause, while “[a]llegations of potential embarrassment, or the fear of unjustified adverse publicity” are insufficient. Unif. R. Impound. P., Rule 8 (Committee Notes, “Definition of ‘Good Cause’” section) (citing H.S. Gere & Sons, Inc. v. Frey, 400 Mass. 326, 330 (1987); George W. Prescott Pub. Co. v. Register of Probate, 395 Mass. 274, 279, 281 (1985)).
Judges may respond to impoundment requests with flexibility: “Among other options, a judge may release the materials to the public, or only to the moving party with or without a confidentiality order, or release the materials to either with redactions appropriate to protect the legitimate interests of the parties in investigative secrecy, privacy, property, or fair trial.” New England Internet Cafe, LLC v. Super. Ct., 966 N.E.2d 797, 805 (Mass. 2012) (citing Boston Herald, Inc. v. Sharpe, 737 N.E.2d 859, 868 (Mass. 2000)).
When deciding whether to seal a record, or addressing a challenge to such a sealing, courts conduct a “good cause” analysis very similar to that applied in the case of impoundment. See, e.g., Commonwealth v. Pon, 14 N.E.3d 182, 197–99 (Mass. 2014).
In Minneapolis Star & Tribune Co. v. Kammeyer, 341 N.W.2d 550, 556 (Minn. 1983), the Minnesota Supreme Court interpreted the requirements of Minn. R. Crim. P. 25.01 for closing criminal pretrial proceedings: (1) the court must find a “substantial likelihood” that if the pretrial proceedings are not closed, prejudicial evidence will be revealed, which would interfere with the defendant’s right to a fair trial; (2) the court must state the reasons for closure; and, (3) after the trial is over, the court must make the entire record, including the transcript of the pretrial proceedings, available for public review. When setting forth the reasons for closing criminal pretrial proceedings, the judge must rely on the findings of fact, rather than the judge’s own personal opinions. Id. at 557. The judge must review any suggested alternatives to closure and must state why those alternatives are inappropriate. Id. In addition, the court held that the First Amendment requires the court to hold a public hearing prior to closure so that the members of the public have an opportunity to voice their objections and to suggest alternatives. Id. at 558. The public must be given a notice of the pre-closure hearing through a docket entry at least twenty-four hours before the court is scheduled to hear a motion to close proceedings. Id.
Minnesota courts have also discussed the requirements for closing criminal trials when the trial is in progress and minor witnesses are called to testify. See generally State v. Delacruz, No. A03-129, 2004 Minn. App. LEXIS 104 (Minn. Ct. App. Feb. 3, 2004). Before ordering closure of a criminal trial, the judge must consider reasonable alternatives and must make findings of fact adequate to support the closure. Id. at *2. The judge must give the parties and the members of the public an opportunity to object to closure. Id. (citing Minn. Stat. § 631.045 (2002)). Finally, the judge must be very specific in articulating the reasons that justify closure. Id.
Minn. R. Crim. P. 26.03 governs the specific situation where arguments occur outside the presence of a nonsequestered jury. That rule states that if the jury is not sequestered, the judge may order exclusion of the public from any portion of the trial that takes place outside the presence of the jury on the ground that dissemination of evidence or argument adduced at the hearing would create a substantial likelihood of interference with an overriding interest, such as the right to a fair trial. Before excluding the public, the court must consider alternatives and narrowly tailor the closure. The court must also follow certain procedural steps outlined in the rule. The rule does not speak to exclusion of the public where the jury is sequestered.
Where a presumption of access applies, courts must make specific, on the record findings about the need for closure. Press-Enterprise Co. v. Superior Court (Press-Enterprise II), 478 U.S. 1, 13-14 (1986).
The Mississippi Supreme Court explained the requirements for closing a court file or proceeding in Gannett River States Pub. Co. v. Hand, 571 So.2d 941, 943 (Miss. 1990). The court established that notice must be given to the media and the public at least 24 hours before a hearing on the closure. To provide adequate notice, a motion for closure must be docketed in the court clerk’s office. Id. at 945. At the hearing, the party seeking closure must: “advance an overriding interest that is likely to be prejudiced; the closure order must be no broader than necessary to protect that interest; the trial court must consider reasonable alternatives to closing the proceedings, and it must make findings adequate to support the closure.” Id. The press also must be allowed to present its argument, if any, against closure. Id. A court that grants closure must explain the alternatives it considered and why they were rejected. Id.; see also Pierce v. State, 250 So. 3d 493, 498 (Miss. Ct. App. 2018) (citing Presley v. Georgia, 558 U.S. 209, 214 (2010)).
A transcript of the closure hearing should be made public. Gannett River, 571 So.2d at 945. If a petition for extraordinary relief is filed, the petition should be accompanied by the transcript, the court's findings of fact and conclusions of law, and the evidence adduced at the closure hearing. Id.
In general, the district court cannot close a trial unless the court first “identifies a countervailing interest to public access and demonstrates, by specific findings, that closure is necessary and narrowly tailored to serve a higher interest.” Stephens Media, 125 Nev. at 855, 221 P.3d at 1245.
Although the Nevada Supreme Court previously held that there is no constitutional right to a preliminary hearing in a criminal case, Azbill v. Fisher, 84 Nev. 414, 418, 442 P.2d 916, 918 (1968) (superseded by statute on other grounds) (noting that a preliminary hearing is “a creature of statute, and as such, the procedures are governed by statutory provisions”), the U.S. Supreme Court subsequently recognized a First Amendment right of access to certain preliminary hearings in criminal cases, indicating that Azbill is no longer good law. See Press-Enterprise Co. v. Super. Ct., 478 U.S. 1 (1986); El Vocero de Puerto Rico v. Puerto Rico, 508 U.S. 147 (1993); cf. Waller v. Georgia, 467 U.S. 39 (1984).
A party may request to exclude the press from a preliminary hearing, or a magistrate may do so on his or her own. SeeNRS § 171.204; see also Davis v. Sheriff, Clark Cty., 93 Nev. 511, 569 P.2d 402 (1977) (noting a magistrate’s refusal to conduct a closed preliminary hearing will be upheld absent an abuse of discretion).
Given the presumption of openness, unless required by statute, e.g., in juvenile cases, a party seeking to close a court proceeding or seal a court record would do so by a motion to close/seal, stating the compelling reasons therefor and why closure/seal was the least restrictive means to achieve those reasons.
Court Access: Pursuant to Rule 1-104 NMRA (civil proceedings) and Rule 5-124 NMRA (criminal proceedings), motions for courtroom closure must advance an interest that overrides the public’s interest in attending the proceeding. Rule 1-104(A); Rule 5-125(A). For criminal proceedings, “a written motion for courtroom closure shall be filed and served at the time of arraignment or within ninety (90) days thereafter, unless upon good cause shown the court waives the time requirement.” Rule 5-124(B)(2).
If the court determines, on its own initiative, that a proceeding should be closed, the court will file and serve on each party an order to show cause why the proceeding should not be. Rule 1-104(B)(1); Rule 5-124(C)(1). If, by contrast, a party or any other person or entity with a sufficient interest moves to exclude the public from any portion of the courtroom proceeding, a written motion must be filed and served at least forty-five days prior to the commencement of the proceeding. Opposing parties will be allowed fifteen days after service of the motion to respond, and any member of the public may file a written response at any time before the hearing. Movants will be allowed fifteen days to reply to a written response by a party. Rule 1-104.
An order for closure must be in writing and articulate the interest protected, specifying the court’s findings underlying the order. The court may at its discretion continue a courtroom proceeding to allow time to file written responses or replies. Id. The court shall hold a hearing on the pleadings—unless the motion has been denied on its face—for which timely notice must be given to media organizations, persons, and entities that have requested to receive notice. Any member of the public must be permitted a reasonable opportunity to be heard at the hearing. Id.
To the extent that sensitive or confidential information relevant to the motion arises at the hearing, the court may hold part of the hearing in camera; the record of this review shall be preserved under seal for appellate review and shall not be revealed without an order of the court. Ultimately, the court may exclude the public to the extent that it finds: (1) such order is necessary to preserve an overriding interest that is likely to be prejudiced if the courtroom is not closed; (2) the order for courtroom closure is narrowly tailored to protect the overriding interest; and (3) the court has considered reasonable alternatives to courtroom closure. Id.
Court Records: Rule 1-079 NMRA (civil proceedings) and Rule 5-123 NMRA (criminal proceedings) set forth the procedural requisites for record closure. Pursuant to both rules, “court records are subject to public access unless sealed by order of the court.” Any party or member of the public may file a motion for an order sealing the court record.
That motion should—as applicable—identify any relevant statute, regulation, rule, or source of law that addresses access to court records. Any party or member of the public may file a response to the motion to seal. Such a record filed must be secured in an envelope or other appropriate container by the movant and lodged with the court, which the movant shall label as “CONDITIONALLY UNDER SEAL” and affix to the envelope or container a cover sheet that contains the information required under Rules 1-008.1 and 1-010 NMRA, and which states that the enclosed court record is subject to a motion to seal. Rule 1-079(F); Rule 5-123(F). The clerk shall then endorse the cover sheet with the date of its receipt and shall retain but not file the court record unless the court orders it filed.
If the court grants an order sealing a court record, the clerk shall substitute the label provided by the movant on the envelope or container with a label prominently stating “SEALED BY ORDER OF THE COURT ON (DATE)” and shall attach a file-stamped copy of the court's order. Pending the court’s ruling, the lodged record will be conditionally sealed. Rule 1-079(F); Rule 5-123(F).
The court may order that a record be filed under seal to the extent that it finds and articulates:
“(a) the existence of an overriding interest that overcomes the right of public access to the court record;
(b) the overriding interest supports sealing the court record;
(c) a substantial probability exists that the overriding interest will be prejudiced if the court record is not sealed;
(d) the proposed sealing is narrowly tailored; and
(e) no less restrictive means exist to achieve the overriding interest.”
Rule 1-079(D) NMRA; Rule 5-123(G) NMRA. The order shall require the sealing of the record only to the extent necessary. Rule 1-079(D); Rule 5-123(G). The order shall further specify who is authorized to have access to the sealed court record and a date or event upon which it expires or shall explicitly state that the order remains in effect until further order of the court. The order shall specify any person or entity entitled to notice of any future motion to unseal the court record or modify the sealing order. Rule 1-079(D); Rule 5-123(G).
[A]lthough the public has a qualified [constitutional] right of access to civil court proceedings and records, the trial court may limit this right when there is a compelling countervailing public interest and closure of the court proceedings or sealing of documents is required to protect such countervailing public interest. In performing this analysis, the trial court must consider alternatives to closure. Unless such an overriding interest exists, the civil court proceedings and records will be open to the public. Where the trial court closes proceedings or seals records and documents, it must make findings of fact which are specific enough to allow appellate review to determine whether the proceedings or records were required to be open to the public by virtue of the constitutional presumption of access.
Virmani v. Presbyterian Health Servs. Corp., 350 N.C. 449, 476-77 (1999) (finding public's interest in access to medical peer review documents and related proceedings was outweighed by compelling public interest in "protecting the confidentiality of [such] records in order to foster effective, frank and uninhibited exchange among medical peer review committee members." Id. at 478.).
The U.S. Court of Appeals for the Fourth Circuit (which has jurisdiction over North Carolina) has held that in considering a request to seal certain judicial records or documents, a district court must first consider the source (i.e., constitutional or common law), if any, of a public right of access. The purpose of this determination is to enable the court to weigh the competing interests under the appropriate test. However, regardless of whether the right of access flows from the common law or the First Amendment, the Fourth Circuit has said that the court must comply with the following procedure: "[I]t must give the public notice of the request to seal and a reasonable opportunity to challenge the request; it must consider less drastic alternatives to sealing; and if it decides to seal it must state the reasons (and specific supporting findings) for its decision and the reasons for rejecting alternatives to sealing. Adherence to this procedure serves to ensure that the decision to seal materials will not be made lightly and that it will be subject to meaningful appellate review." Virginia Dept. of State Police, 386 F.3d 567, 576 (4th Cir. 2004) (internal quotations omitted).
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.
The Ohio Supreme Court has adopted the Press-Enterprise II test for closing court proceedings. In doing so, the Court held that “the public’s qualified right of access attaches to those hearings and proceedings in all courts which have historically been open to the public, and in which public access plays a significant positive role.” In reT.R., 556 N.E.2d 439, 446 (Ohio 1990). As a result, judges, using their discretion, make closure decisions based on the “totality of the circumstances.” Id. at 453. The media or public seeking access must be given an opportunity to be heard to voice their objections to closure. State ex rel. The Repository v. Unger, 504 N.E.2d 37, 40 (Ohio 1986). The court must consider factors including, but not limited to, “the nature and weight of the interest to be protected by the closure, the availability of reasonable alternatives that would protect the asserted interest without necessitating closure, and whether the restriction is drawn as narrowly as possible.” Id. The court must make specific findings of fact to support closure so that a reviewing court can determine whether closure was proper. Id. Before closing media access to jury view of crime scene, trial court must conduct a hearing, make appropriate findings, and enter its decision on the record. State ex rel. Cincinnati Enquirer v. Bronson, 945 N.E.2d 551, 555 (Ohio Ct. App. 2010). To support closure, the trial court “must find that (1) closure is essential to preserve a higher or overriding interest and (2) the closure order is narrowly tailored to serve that interest.” Id. Moreover, “[i]f the interest advanced is the defendant’s right to a fair trial, closure may be ordered only where the court finds that (1) there is a substantial probability that the defendant’s right to a fair trial will be prejudiced by publicity that closure would prevent and (2) reasonable alternatives to closure cannot adequately protect the defendant’s fair-trial rights.” Id at 555–56.
Reeves v. State, 1991 OK CR 101, 818 P.2d 495, cited Press–Enterprise I for the proposition that any closure of proceedings has to be based on specific findings supporting narrowly drawn restrictions. Oklahoma courts have not squarely addressed issues regarding the nature and form of public notice that must be given prior to closure.
In Oregon, UTCR 3.180 provides specific procedure for closure of courts to cameras and video equipment, including finding of facts on the record. UTCR 3.180(3).
Because of the robust protections provided by the Oregon Constitution for public access to courts, there is no established procedure for other types of 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)).
A protective order restricting access to court documents in a criminal case “must be accompanied by the trial justice’s specific findings explaining the necessity of the order,” as well as his or her consideration of alternatives to a protective order as a means for protecting the asserted interests. State v. Cianci, 496 A.2d 139, 144 (R.I. 1985).
A protective order in a civil case requires a motion under Rhode Island Superior Court Rule of Civil Procedure 26(c), which may be granted upon a showing of “good cause . . . to protect a party or person from annoyance, embarrassment, oppression, or undue burden and expense,” “accompanied by a certification that the movant has in good faith conferred or attempted to confer with other affected parties in an effort to resolve the dispute without court action.”
When the justification for closure is protecting the defendant's Sixth Amendment right to trial by an impartial jury, a judge only may close a courtroom by making specific findings that: (1) there is a substantial probability that the defendant’s right to a fair trial will be prejudiced by an open proceeding and the resulting publicity, (2) there is a substantial probability that closure would prevent that prejudice, and (3) reasonable alternatives to closure could not adequately protect the defendant’s rights. See Ex parte Hearst-Argyle Television, Inc., 631 S.E.2d 86, 89, 369 S.C. 69, 74 (S.C. 2006); In re S.C. Press Ass'n, 946 F.2d 1037, 1041 (4th Cir. 1991); In re Charlotte Observer, 882 F.2d 850, 853 (4th Cir. 1989); In re Washington Post Co., 807 F.2d 383, 390-91 (4th Cir. 1986).
The Supreme Court of South Dakota has stated:
Procedurally, a trial court in closing a proceeding must both articulate the countervailing interest it seeks to protect and make findings specific enough that a reviewing court can determine whether the closure order was properly entered. Substantively, the record before the trial court must demonstrate an overriding interest based on findings that closure is essential to preserve higher values and is narrowly tailored to serve that interest.
Rapid City Journal v. Delaney, 2011 S.D. 55, ¶ 21, 804 N.W.2d 388, 395–96 (quoting Publicker Indus., Inc. v. Cohen, 733 F.2d 1059, 1071 (3d Cir. 1984)).
In the First Amendment context, an intermediate Texas court of appeals has recognized that “to pass constitutional muster and overcome the presumption of openness, a trial court must: (1) identify an overriding or compelling interest; (2) make findings, sufficiently specific for review, that the exclusion of the public and/or media is essential to preserve higher values; and (3) consider whether alternatives to total exclusion or closure are available in order to narrowly tailor the solution to serve the identified interest or value.” Houston Chronicle Publ’g Co. v. Crapitto, 907 S.W.2d 99, 105 (Tex. App.—Houston [14th Dist.] 1995, orig. proceeding) (quoting Press-Enterprise Co. v. Superior Court, 464 U.S. 501, 509–11 (1984)). For closure to survive review, the trial court must do more than merely articulate the interest that it is attempting to protect through closure but must instead explain how closure would protect that interest. See id. at 105–06. Likewise, the court must entertain alternatives to closure on the record. See id. at 106.
Interested parties, of course, can consider filing an intervention for the limited purpose of seeking access. Such an intervention may more squarely tee up questions of standing, the right to be heard, and the right to challenge on appeal any adverse trial court ruling.
A party moving to prevent disclosure of records in Utah must file and serve a motion seeking closure on any members of the press who have requested notice in the case. Utah Code Jud. Admin. 4-202.04(2)(D). The district court need not conduct a hearing on closure unless the motion is contested or the press requested notice of such closure motions in the case. Id.
Five steps are required to close a hearing, including preliminary and competency hearings in criminal matters:
(i) a closure hearing must be held, and that hearing must be open to the greatest extent possible; (ii) if allegedly prejudicial information must be disclosed during the hearing on the merits, the court may close that hearing only after first attempting unsuccessfully to procure a voluntary nondisclosure agreement among the parties; (iii) the court may close only that portion of the hearing on the merits as is necessary to protect any countervailing interests, such as the accused’s fair trial right; (iv) if closure is deemed necessary, the transcript of any closed proceeding should be released as soon as it is possible to do so without prejudice to the interests that justified closure; (v) the order of closure resulting from the closure hearing must be supported by written findings and conclusions.
The Vermont Rules for Public Access to Court Records govern the rights of access by the public to judicial records. See Vt. Pub. Acc. Ct. Rec. Rule 1; see also State v. Whitney, 2005 VT 102, ¶ 9, 885 A.2d 1200, 1203 (Vt. 2005). The Rules provide that “the presiding judge by order may grant public access to a case record to which access is otherwise closed, may seal from public access a record to which the public otherwise has access or may redact information from a record to which the public has access.” Vt. Pub. Acc. Ct. Rec. Rule 7(a); see also In re Vsp-Tk/1-16-18 Shooting Gray TV, 2019 VT 47 ¶ 30 (July 19, 2019). Rule 7 requires, however, that prior to entering such an order, “[a]ll parties to the case to which the record relates, and such other interested persons as the court directs, have a right to notice and hearing . . . except that the court may issue a temporary order to seal or redact information from a record without notice and hearing until a hearing can be held.” Vt. Pub. Acc. Ct. Rec. Rule 7(a). An order may only be issued, however, “upon a finding of good cause specific to the case before the judge and exceptional circumstances” and, “[i]n considering such an order, the judge shall consider the policies behind this rule.” Id. This process is unavailable, however, “[i]f a statute governs the right of public access and does not authorize judicial discretion in determining to open or seal a record.” Id. Any appeals from determinations under this section are made to the Vermont Supreme Court. Id. at (c).
In Vermont, court proceedings are presumptively open to the public, “closure being the exception rather than the rule.” State v. Tallman, 148 Vt. 465, 474, 537 A.2d 422, 427-28 (Vt. 1987). “To rebut the presumption of openness, the party seeking closure must demonstrate ‘that closure is essential to preserve higher values and is narrowly tailored to serve that interest.’” Id. (citation omitted); see also Herald Ass’n v. Ellison, 138 Vt. 529, 534, 419 A.2d 323, 326 (Vt. 1980) (“any pretrial closure order imposed in this jurisdiction must be based on a clear necessity for the protection of the defendant’s fair trial rights and must be limited in scope by its justification”). “Criminal proceedings may be closed to the public without violating First Amendment rights only if (1) closure serves a compelling interest; (2) there is a ‘substantial probability’ that, in the absence of closure, that compelling interest would be harmed; and (3) there are no alternatives to closure that would adequately protect that compelling interest.” State v. Densmore, 160 Vt. 131, 138, 624 A.2d 1138, 1142 (Vt. 1993).
Motions to restrict access to judicial proceedings are subject to the same procedural requirements as motions to restrict access to judicial records. See Shenandoah Pub. House, Inc. v. Fanning, 235 Va. 253, 259, 368 S.E.2d 253, 256 (1988).
Before denying public access:
- The public must have advance notice, reasonable under the circumstances, of the closure or sealing motion and that a hearing on the motion will be conducted;
- The party seeking to restrict public access must bear the burden of showing that closure is justified;
- The trial court must consider alternatives to closure; and
- Upon entering an order restricting public access, the trial judge must articulate on the record its findings that the evidence supports closure, that alternatives will not protect the interest threatened by public access, and that closure will be effective in protecting that interest.
See Richmond Newspapers, Inc. v. Commonwealth, 222 Va. 574, 281 S.E.2d 915 (1981); accord Daily Press, Inc. v. Commonwealth, 285 Va. 447, 455, 739 S.E.2d 636, 641 (2013) (“To ensure stringent safeguarding of the constitutional rights at stake, courts are required to justify any decision to close with specific reasons and findings on the record.”) (citation omitted).
Notice and an opportunity to be heard are critical. Failing to conduct a hearing on the merits before closing a proceeding is grounds to vacate the closure order and require public access. See Richmond Newspapers, Inc. v. Commonwealth, 222 Va. 574, 281 S.E.2d 915 (1981).
A closure motion should be made in writing and filed with the court before the day of the hearing, and interested members of the public should have the right to be heard, with the assistance of counsel if desired. See Richmond Newspapers, Inc. v. Commonwealth, 222 Va. 574, 281 S.E.2d 915 (1981).
If evaluation of the motion requires disclosure of the very information sought to be withheld from the public, the trial court may hear or observe the information in camera. However, when it is not possible to hold the entire hearing in public, only that portion that would be prejudicial should be closed. See Richmond Newspapers, Inc. v. Commonwealth, 222 Va. 574, 281 S.E.2d 915 (1981).
Because the presumption is in favor of openness, a court need not make findings of fact to justify a decision denying a request to restrict public access. Perreault v. The Free Lance-Star, 276 Va. 375, 390, 666 S.E.2d 352, 360 (2008).
A court may not base its decision to limit public access upon the conclusory assertions of the party requesting the closure. Perreault v. The Free Lance-Star, 276 Va. 375, 390, 666 S.E.2d 352, 360 (2008); see also Lotz v. Commonwealth, 277 Va. 345, 351, 672 S.E.2d 833, 837 (2009) (“Further, ‘risks of damage to professional reputation, emotional damage, or financial harm, stated in the abstract,’ are not sufficient reasons for a court to seal judicial records.”) (quoting Shenandoah Pub. House, Inc. v. Fanning, 235 Va. 253, 259, 368 S.E.2d 253, 256 (1988)); Shiembob v. Shiembob, 55 Va. App. 234, 244, 685 S.E.2d 192, 198 (Va. Ct. App. 2009) (holding that “Husband’s undefined concern for his professional reputation does not rebut the presumption of openness of judicial records.”).
The findings supporting closure must be particularized, not generally applicable to all cases. See Hawkins v. Hawkins, 82 Va. Cir. 351, 2011 WL 12663403, *1 (Madison Cir. Ct. Mar. 16, 2011) (“Finally, it must be noted that, if the order in this case is approved, the same request would have to be granted by the court in many other domestic cases. Such files would then be routinely sealed for the convenience of the parties and not thereafter open to public inspection. In my judgment, this would not be appropriate.”).
A federal district court in Virginia has held that even where all of the litigants support the motion to seal, and even where a public hearing on the question does not bring forth anyone to assert the right of access, a court must still engage in a careful deliberation on the issue. Benedict v. Hankook Tire Co. Ltd., 323 F. Supp. 3d 747, 754 (E.D. Va. 2018).
Where a presumption of access applies, courts must make specific, on the record findings about the need for closure. Press-Enterprise Co. v. Superior Court (Press-Enterprise II), 478 U.S. 1, 13–14 (1986). Lower courts have specified the procedure courts should follow. For example, the Fourth Circuit laid out the following test in a criminal case:
“First, the district court must give the public adequate notice that the closure of a hearing or the sealing of documents may be ordered. In particular, closure motions must be docketed reasonably in advance of their disposition so as to give the public and press an opportunity to intervene and present their objections to the court. Moreover, although individual notice is generally not necessary, when the district 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. Second, the district court must provide interested persons an opportunity to object to the request before the court ma[kes] its decision. Third, if the district court decides to close a hearing or seal documents, it must state its reasons on the record, supported by specific findings. Its findings must be specific enough to enable the reviewing court to determine whether closure was proper. In addition, the court must state its reasons for rejecting alternatives to closure.”
In re Washington Post Co., 807 F.2d 383, 390-91 (4th Cir. 1986) (citations and quotations omitted).
Failing to observe the procedural prerequisites to closure constitutes error even if the closure otherwise might be proper, and appellate courts generally will “remand the issue to the district court for a second consideration using correct procedures and correct substantive standards.” Id. at 393.
See State ex rel. La Crosse Tribune v. Circuit Court, 115 Wis. 2d 220, 241–42, 340 N.W.2d 460 (Wis. 1983):
We emphasize that the presumption under the statute is clear-that courts at all sittings thereof are to be open to the public and may be closed only when, in the exercise of discretion, the trial court determines, after hearing and the making of explicit findings, that overwhelming public values connected with the administration of justice will be subverted by public trial. The failure to expressly exercise discretion on the basis of findings of fact will be deemed an abuse of discretion. Findings of fact are to be made only after an opportunity is given to the parties and to the public to be heard.
Cf. Stevens v. Manitowoc Cir. Ct., 141 Wis. 2d 239, 254, 414 N.W.2d 832 (Wis. 1987):
When a complainant seeks closure under [Wis. Stat. sec. 970.03(4)], the state must first advance a compelling interest which would be likely to be prejudiced absent closure, such as the need to protect a sexual assault victim from undue embarrassment and emotional trauma. Where the circuit court finds this or any other appropriately compelling basis for closure, it must narrowly tailor its closure order. In determining the breadth of the order, the circuit court must consider reasonable alternatives to full closure of the entire preliminary examination. In addition, the circuit court must articulate specific findings adequate to support closure.
When a court determines that a compelling interest exists, the court must articulate findings, on the record, specific enough that a reviewing court can determine whether the closure order was properly entered. A hearing on a closure may be closed if information sought to be kept confidential must be discussed.