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.
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.
“[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. . . .”
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).
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.
The Colorado Supreme Court has held that “criminal trials and pretrial proceedings should not be closed to media representatives unless an overriding and compelling state interest in closing the proceedings is demonstrated.” Star Journal Publ’g Corp. v. Cnty. Court, 591 P.2d 1028, 1030 (Colo. 1979). In Star Journal, the court held that a “judge may close a pretrial hearing only if (1) the dissemination of information would create a clear and present danger to the fairness of the trial; and (2) the prejudicial effect of such information on trial fairness cannot be avoided by any reasonable alternative means.” Id. The Court explained that “mere conjecture and allegations of prejudicial publicity” cannot justify an exclusion order. Id. The judge must “issue a written order setting forth specific factual findings in this regard.” Id.
Many more Colorado courts have analyzed procedural prerequisites to closure under a defendant’s Sixth Amendment right to a public trial. See, e.g., People v. Hassen, 2015 CO 49; People v. Irving, 2019 COA 1;People in Interest of G.B., 2018 COA 77.
In civil cases, C.R.C.P. 121, § 1-5 permits acourt to limit access to court files upon a motion of any party to a civil action only if the court finds that “harm to the privacy of a person in interest outweighs the public interest.” An order limiting access may be reviewed by the court at any time on its own motion or upon the motion “of any person.” C.R.C.P. 121, § 1-5(4). The rule “creates a presumption that all court records are to be open; it allows a court to limit access in only one instance and for only one purpose (when the parties’ right of privacy outweighs the public’s right to know); and it grants to every member of the public the right to contest the legitimacy of any limited access order.” Anderson v. Home Ins. Co., 924 P.2d 1123, 1126 (Colo. App. 1996). The rule “squarely places the burden upon the party seeking to limit access to a court file to overcome this presumption in favor of public accessibility by demonstrating that the harm to the privacy of a person in interest outweighs the public interest in the openness of court files.” Id.
In general, the fact that “a court file contains extremely personal, private, and confidential matters is generally insufficient to constitute a privacy interest warranting the sealing of that entire file pursuant to C.R.C.P. 121, § 1-5. Anderson, 924 P.2d at 1127. A “heightened expectation of privacy or confidentiality in court records has been found to exist only in those limited instances in which an accusation of sexual assault has been made, or in which trade secrets, potentially defamatory material, or threats to national security may be implicated.” Id. Likewise, “prospective injury to reputation, an inherent risk in almost every civil lawsuit, is generally insufficient to overcome the strong presumption in favor of public access to court records.” Id.; see also Doe v. Heitler, 26 P.3d 539, 544 (Colo. App. 2001).
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).
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).
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).
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).
In Minot Daily News v. Holum, 380 N.W.2d 347 (N.D. 1986), the North Dakota Supreme Court established the procedure to be followed by the trial court in considering a request for closure of a preliminary proceeding:
- Review the evidence independently and, if necessary to protect the defendant’s right to a fair trial, privately, with counsel present and on the record.
- Consider possible alternatives to closure.
- If the court determines there is a substantial likelihood of prejudice to the defendant’s right to a fair trial, the closure may be ordered only to the extent necessary to protect that right.
- The court must make specific findings adequate to support closure.
Before closing a proceeding, a trial court must give notice to the public and give persons opposed to closure (for example, the press) an opportunity to be heard. See Capital Cities Media, Inc. v. Toole, 483 A.2d 1339, 1344 (Pa. 1984) (“The media’s right of expression must necessarily include the right to be heard when that interest is adversely affected.”); Commonwealth v. Buehl, 462 A.2d 1316, 1321 (Pa. Super. 1983) (“[T]he public . . . must be given notice and an opportunity to be heard before a pretrial proceeding is closed.”).
In Buehl, the Superior Court did not dictate what kind of notice is required, leaving the issue up to the lower courts. See id. at 1321 n.2. But the Court suggested that individual notice to the press was not required. Instead, docketing notice in advance of any hearing or decision on a closure request is “sufficient.” Id. at 1321 (citing United States v. Criden, 675 F.2d 550, 558-59 (3d Cir. 1982)).
The opportunity for a representative of the press to be heard must be “reasonable.” Id. at 1322. This requires the trial court, at a minimum, to allow the public and press to appear and argue against the motion for closure. See id. The trial court “must hold a hearing . . .” Commonwealth v. Upshur, 924 A.2d 642, 651 (Pa. 2007). An evidentiary hearing may be required in some circumstances. See, e.g., Ornsteen v. Bass, 50 Pa. D. & C.3d 371, 374-75 (Phila. Cty. C.C.P. 1988).
In reaching its decision, the trial court should create a “record” that contains “an articulation of the factors taken in consideration” in determining whether there is a right of access and whether that right has been rebutted by countervailing interests. Commonwealth v. Fenstermaker, 530 A.2d 414, 421 (Pa. 1987); see also Upshur, 924 A.2d at 651 (“[T]he trial court . . . must . . . place on the record its reasoning and the factors relied upon in reaching its decision.”). When assessing whether closure is necessary, “the court should issue individualized, specific, particularized findings on the record that closure is essential to preserve higher values and is narrowly tailored to that interest.” Commonwealth v. Curley, --- A.3d ---, 2018 Pa. Super. LEXIS 599, at *10 (June 4, 2018) (discussing constitutional right of access). Courts are required to make “document-by-document findings” and not simply “issue a blanket conclusion.” Id. In addition, the trial court must articulate on the record that “alternatives to closure” were considered and “explicitly state its reasons on the record for rejecting such alternatives.” Buehl, 462 A.2d at 1322 (quoting United States v. Criden, 675 F.2d 550, 560 (3d Cir. 1982)); see also Commonwealth v. Long, 922 A.2d 892, 906 (Pa. 2007) (“[C]losure must be supported by specific findings demonstrating that there is a substantial probability that an important right will be prejudiced by publicity and that reasonable alternatives to closure cannot adequately protect the right.”).
The on-the-record articulation of reasons for closure must be done “before ordering closure . . . .” Buehl, 462 A.2d at 1323. “Only in that way will those who oppose closure be able to respond. Given a chance to respond, they may be able to persuade the court that it is mistaken, or they may be able to suggest an alternative not thought of by the court but that when thought of, is found to be satisfactory.” Id.
In considering whether to seal records, “the trial court must inspect the items in camera” before determining whether to restrict access to them. Upshur, 924 A.2d at 651 (citing PG Publ’g Co. v. Commonwealth, 614 A.2d 1106, 1110 (Pa. 1992)).
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).
See State ex rel. La Crosse Tribune v. Circuit Court for LaCrosse County, 115 Wis. 2d 220, 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, 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.