C. Procedure for requesting access in civil matters
The Tenth Circuit has noted that “courts have widely recognized that the correct procedure for a non-party to challenge a protective order is through intervention for that purpose.” United Nuclear Corp. v. Cranford Ins. Co., 905 F.2d 1424, 1427 (10th Cir. 1990) (citing Public Citizen v. Liggett Group, Inc., 858 F.2d 775, 783 (1st Cir. 1988)). If intervention is required, practitioners should consult the forum’s local rules on motion practice.
As with access to criminal matters, a motion to intervene and unseal is the general method by which a party may request access to civil matters. In Lugosch 435 F.3d at 110, for example, several media organizations moved to intervene to secure access to documents filed under seal. Similarly, in In re Pineapple Antitrust Litig., No. 04 MD. 1628 RMB MHD, 2015 WL 5439090, at *1 (S.D.N.Y. Aug. 10, 2015), the movant, a writer for the New York Times, filed a motion to intervene concurrently with a motion to unseal documents to "assist in a journalistic project." Cf. Giuffre v. Maxwell, 325 F. Supp. 3d 428 (S.D.N.Y. 2018); Giuffre v. Maxwell, No. 15 CIV. 7433, 2017 WL 1787934, at *1 (S.D.N.Y. May 3, 2017) (on appeal) (granting motions to intervene but denying motions to modify protective order entered in defamation matter).
The Fifth Circuit has not specified how access should be requested, but media have, at times, sought access to closed proceedings by filing a motion to intervene in district court. Davis v. Capital City Press, 78 F.3d 920, 923 (5th Cir. 1996). But unlike in some jurisdictions, the Fifth Circuit does not require that the media formally intervene. United States v. Chagra, 701 F.2d 354, 360 (5th Cir. 1983).
“It is apparent . . . that intervention is the procedurally appropriate course for third-party challenges to protective orders.” Grove Fresh Distribs., Inc. v. Everfresh Juice Co., 24 F.3d 893, 896 (7th Cir. 1994); Jessup v. Luther, 227 F.3d 993, 997 (7th Cir. 2000) (“we have recognized intervention as the logical and appropriate vehicle by which the public and the press may challenge a closure order”); Griffith v. University Hosp., LLC, 249 F.3d 658 (7th Cir. 2001).
“[W]e have recognized the right to intervene to challenge a closure order in the civil context,” and while the press’ interest “does not fit neatly within the literal language of” Federal Rule of Civil Procedure 24, “permitting intervention for the purpose of deciding the confidentiality issue [does not] impermissibly stretch the wording of the Rule.” Jessup v. Luther, 227 F.3d at 997-98 (newspaper “asserts a right directly and substantially related to the litigation, a right of access to court proceedings and documents born of the common law and the First Amendment”).
“Once the judge not only flags an issue as important but also sets a schedule for its resolution, the time has come to intervene”; if people potentially affected “receive notice that the court will hold a hearing to address a particular question, they must participate rather than wait and see what the court does.” United States v. Blagojevich, 612 F.3d 558, 561 (7th Cir. 2010); United States v. Troup, 2012 WL 3818242, at *2 (N.D. Ind. Aug. 31, 2012) (“Generally, a motion for closure should be docketed publically [sic] and reasonably in advance of any hearing or other disposition—far enough in advance, at least, to give the public a meaningful opportunity to intervene”).
The “procedural propriety” of intervention “does not answer the separate question” of whether the intervenor has standing. Bond v. Utreras, 585 F.3d 1061, 1068 n. 5, 1071 (7th Cir. 2009) (journalist intervenor lacked standing to challenge terms of protective order limiting dissemination of unfiled discovery, in a case that had been settled and dismissed; however, Court specifically declined to address whether an intervenor “must establish standing to challenge a protective order in an ongoing case”). Bond noted that Federal Rule 24(b)(3) “suggests that intervention postjudgment—which necessarily disturbs the final adjudication of the parties’ rights—should generally be disfavored.” Id. at 1071. Compare United States ex rel. Jayakar v. Munster Med. Research Found., Inc., No. 2:08-CV-350-TLS-PRC, 2016 WL 4607869, at *2 (N.D. Ind. Sept. 6, 2016) (distinguishing Bond because intervenor there “sought materials disclosed in discovery that were subject to a protective order” while “[t]he documents sought here have been filed with the Court, not merely exchanged in discovery. Further, the purpose of the intervention here is not to disturb the case’s resolution or reopen the case on the merits”).
The Eighth Circuit has held that “permissive intervention under [Federal Rule of Civil Procedure] 24(b) is an appropriate procedural vehicle for non-parties seeking access to judicial records in civil cases.” Flynt v. Lombardi, 782 F.3d 963, 967 (8th Cir. 2015) (per curiam). Media organizations have filed petitions to intervene at the district court level and also filed applications for access. United States v. McDougal, 940 F. Supp. 224, 226 (E.D. Ark.), aff’d on other grounds, 103 F.3d 651 (8th Cir. 1996).
The Supreme Court of Alabama has held that “a motion to intervene is the procedurally correct means to seek the opening of a sealed court file.” Holland v. Eads, 614 So. 2d 1012, 1014 (Ala. 1993). More informal approaches, such as sending a letter to the judge, may also be acceptable in Alabama.
Media organizations are entitled to notice and a hearing before a typical court proceeding is closed. In California state court, a trial court must provide notice of closure either by the formal announcement that a hearing on closure will be held or by publicly docketing a written filing requesting closure. The court must then hold a hearing before it can close proceedings, and the media may participate if they are adversely affected. NBC Subsidiary (KNBC-TV), Inc. v. Superior Court, 20 Cal. 4th 1178, 980 P.2d 337, 86 Cal. Rptr. 2d 778 (1999).
With regard to records, the California Rules of Court provide that “[a] party or member of the public may move, apply, or petition, or the court on its own motion may move, to unseal a record.” Cal. Rules of Court, Rule 2.551(h) (emphasis added). That rule also provides that a “[n]otice of any motion, application, or petition to unseal must be filed and served on all parties in the case.” Id. This rule applies in civil cases. See Mercury Interactive Corp. v. Klein, 158 Cal. App. 4th 60, 70 Cal. Rptr. 3d 88 (2007). Because circumstances may change in a case, sealing orders are subject “to continuing review and modification by the trial judge who sits in the same judicial proceeding.” In re Marriage of Nicholas, 186 Cal. App. 4th 1566, 1569, 113 Cal. Rptr. 3d 629 (2010).
In practice, members of the media or others requesting access to sealed documents have attempted to unseal records in an ongoing matter by filing informal letter requests, formal motions, or both. See Mercury Interactive, 158 Cal. App. 4th 60, 70, 70 Cal. Rptr. 3d 88 (2007) (both); Sorenson v. Superior Court, 219 Cal. App. 4th 409, 420-422, 161 Cal. Rptr. 3d 794 (2013) (same, in a closed matter). The media also may be allowed to participate as amici in proceedings addressing sealing questions. Overstock.com, Inc. v. Goldman Sachs Group, Inc., 231 Cal. App. 4th 471, 489, 180 Cal. Rptr. 3d 234 (2014). In Overstock, the Court of Appeal disapproved of formal third-party intervention by the media. Id.; see also Mary R. v. B. & R. Corp., 149 Cal. App. 3d 308, 315, 196 Cal. Rptr. 871 (1983) (affirming denial of motion to intervene to seek unsealing of court records because it related to an ancillary matter).
One California court has also stated that a media member could initiate an original proceeding in a reviewing court, by way of a petition for writ of mandate, to “compel the lower court to unseal records that were improperly sealed.” Although procedurally unusual, a media litigant who brings a successful writ original petition may be able to obtain an award of attorney’s fees “under suitable circumstances.” Savaglio v. Wal-Mart Stores, Inc., 149 Cal. App. 4th 588, 603, 57 Cal. Rptr. 3d 215 (2007).
Colorado case law is not well developed on the constitutional or common law right of access to civil proceedings.
In civil cases, C.R.C.P. 121, § 1-5 governs access to court records. The rule provides that the court may 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.” “[A]ny person” may file a motion with the court to review an order limiting access. 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.
While there is no unique procedure for seeking access of judicial proceedings, with a motion to intervene being the standard method, there is a specific procedure for obtaining access to documents.
In the Court of Chancery, a person or entity seeking access to documents must file with the Court a notice of a challenge to the sealing. If there is a redacted version of the document on file, any person may seek continued sealing by filing a motion within five days after the filing of the challenger’s notice. Failure to do so will result in unsealing. If the proponent of sealing files a motion, the challenger then has five days to file a responsive opposition. On the failure to file a responsive opposition, the challenge will be deemed withdrawn and the document will remain under seal. If both a motion and opposition are timely filed, the Court then decides whether to continue sealing, and if so, the extent of sealing. Ch. Ct. R. 5.1(f)(2).
If there is no redacted version of the sealed document on file, the proponent of sealing must deliver a notice to all attorneys who have entered an appearance in the case and have designated material as confidential. The notice, which is not to be filed with the Court, is accompanied by a proposed redacted version, redacting only such portions as the filer believes qualifies for sealing. The notice tells the recipients that the proposed redacted version will be filed with the Court unless another party designates additional confidential material to be redacted. All this must occur within 10 days of the filing of the challenger’s notice, at which time the filer must file the redacted version with the Court. Once the redacted version has been filed, any person may challenge the sealing of the redactions by following the notice procedure for documents which have redacted versions filed. Ch. Ct. R. 5.1(f)(1).
In the Superior Court, any person may deliver a notice of a challenge to sealing to the person(s) who designated materials as confidential and subject to sealing. The notice is also filed with the Court. To the extent any party wants to maintain the seal, they must file an application with the Court within seven days of receipt of the written notice setting forth the grounds for continued sealing and requesting a ruling whether good cause exists to maintain sealing. The Court is to make a prompt ruling on the issue. Super. Ct. Civ. Rule 5(g)(4).
District of Columbia
D.C. local and federal courts have ruled that intervention is the proper procedure for third parties to seek access to court materials in civil cases. See In re Fort Totten Metrorail Cases, 960 F. Supp. 2d 2, 6 (D.D.C. 2013) (granting motion to intervene and for access to settlement agreements with minors filed in action against WMATA); EEOC v. Nat’l Children’s Ctr., Inc., 146 F.3d 1042, 1046 (D.C. Cir. 1998) (“[W]e hold that third parties may be allowed to permissively intervene under Rule 24(b) for the limited purpose of seeking access to materials that have been shielded from public view either by seal or by a protective order.”); Mokhiber v. Davis, 537 A.2d 1100, 1104 (D.C. 1988) (per curiam) (“The filing of a motion to intervene is simply recognized as an appropriate means of raising assertions of public rights of access to information regarding matters in litigation.”); see also, e.g., Aristotle Int’l, Inc. v. NGP Software, Inc., 714 F. Supp. 2d 1, 18 (D.D.C. 2010) (noting that motion to intervene and for access is proper procedure to challenge sealing); New York v. Microsoft Corp., 206 F.R.D. 19, 21 (D.D.C. 2002) (declining to hold that the press is entitled to intervention as of right, but finding that permissive intervention under Federal Rule of Civil Procedure 24(b) is “the appropriate avenue for advancing ‘third-party claims of access to information generated through judicial proceedings’”).
Florida courts have not established a particular method to be used for objecting to closure motions or orders. Limited intervention, motions seeking access, and written and oral responses to closure motions may be options, depending on the circumstances. Motions to seal are governed by the procedures in Florida Rule of Judicial Administration 2.420. Telephonic hearings are also available under the procedures established in Rule of Judicial Administration 2.530.
The Supreme Court of Hawaii has held that a writ of prohibition is “an appropriate vehicle” for challenging a closure order in the probate context. In re Estate of Campbell, 106 Hawai’i 453, 454, 106 P.3d 1096, 1097 (2005). The Court’s language did not foreclose the possibility of other “vehicle[s] for challenging a closure order” in a civil matter.
As with criminal proceedings, if access to a closed civil proceeding is sought, a request to the trial judge for a hearing under Press-Enterprise should be made as soon as possible. Idaho Court Administrative Rule applies to all records of the judiciary, civil and criminal. Thus, a request for access to records of a civil proceeding should also be made under Rule 32. Under this rule,
Any person desiring to inspect, examine or copy physical records shall make an oral or written request to the custodian. If the request is oral, the custodian may require a written request. The custodian may request contact information as provided in I.C. § 74-102. A request for public records and delivery of the public records may be made by electronic mail. The request must clearly identify each record requested so that the custodian can locate the record without doing extensive research and continuing request for documents not yet in existence will not be considered. The custodian may provide the requester information to help the requester narrow the scope of the request or to help the requester maker the request more specific when the response to the request is likely to be voluminous.
I.C.A.R. 32(j)(1); see also Saint Alphonsus Med. Grp. – Nampa, Inc. v. St. Luke’s Health Sys., Ltd., 2013 WL 5883736 (D. Idaho Oct. 18, 2013) (granting a media coalition’s motion to intervene to challenge the sealing of trial exhibits in a high-profile civil case) and 2014 WL 3101716 (D. Idaho July 3, 2014) (trial court’s analysis releasing previously sealed civil case trial documents).
The Access to Public Records Act details the procedure for obtaining access to court cases. The request for records may be made orally or in writing. See Ind. Code § 5-14-3-9(b), (d). But see Ind. Code § 5-14-3-3(a) (agency has discretion to require request to be in writing or in a form provided by the agency). Note that if the request is made orally, the agency may deny the request orally. Ind. Code § 5-14-3-9(c).
The requester may renew the oral request in writing. See Ind. Code § 5-14-3-9(d). If a written request is denied, the denial must be in writing and include a statement of the specific exemption authorizing the withholding of all or part of the public record and the name and the title or position of the person responsible for the denial. Ind. Code § 5-14-3-9(d). The statute does not address later steps, short of an advisory opinion by the public access counselor or litigation.
Any requests, whether oral or written, must identify with reasonable particularity the record being requested. Ind. Code § 5-14-3-3(a)(1); see also Anderson v. Huntington Cty. Bd. of Commr’s, 983 N.E.2d 613, 617–19 (Ind. Ct. App. 2013) (holding that the county board had no legal obligation to produce the documents as requested when the request was not reasonably particular). “Whether a request identifies with reasonable particularity the record being requested turns, in part, on whether the person making the request provides the agency with information that enables the agency to search for, locate, and retrieve the records.” Anderson, 983 N.E.2d at 34.
Civil trials are presumptively open to the public. Members of the press and the public may object to attempts to close proceedings pursuant to Administrative Rule 9. See Ind. Trial R. 72(B) (“All trials upon the merits shall be conducted in open court and so far as convenient in a regular courtroom in or outside the county seat.”). The judge may conduct “all other acts or proceedings” in chambers, suggesting that the judge is at liberty to conduct other proceedings in private. Id.
Although the Iowa Supreme Court has not specifically addressed rights of access in civil matters, it is likely that the procedures utilized to request access would be the same as those employed in criminal matters. See the “Procedure for Requesting Access in Criminal Cases” section above.
Access to civil proceedings generally is unrestricted, and requests for records may be submitted to clerks of court. The Kansas Office of Judicial Administration can aid in gaining access. See You and the Courts of Kansas, at: http://www.kscourts.org/kansas-courts/general-information/you-and-the-courts/default.asp
In response to a denial of access to proceedings or records, however, the media may file a motion to intervene. In addition to the procedure described in Fossey and Owens, the Kansas Rules of Civil Procedure, in K.S.A. 60-224, include a provision that, on “timely motion, the court must permit anyone to intervene who . . . claims an interest relating to the property or transaction that is the subject of the action, and is so situated that disposing of the action may as a practical matter substantially impair or impede the movant’s ability to protect its interest.”
In Kentucky, the procedures for requesting access in civil cases are the same as in criminal cases. There is a presumption that both criminal and civil court proceedings and records are open and accessible to the public and press, and this presumption generally applies to “everything filed with the courts.” Fiorella v. Paxton Media Grp., LLC, 424 S.W.3d 433, 439 (Ky. Ct. App. 2014). All of Kentucky’s state court proceedings are video/audio recorded, and the recordings are generally available to the public at the court clerk’s office in the same manner that court records are available. The video record is typically available within a few days after a court proceeding. Requests by the media to have cameras in the courtroom may generally be made informally to the presiding judge either orally or by letter.
Kentucky’s general rule is that news media entities do not have access to court records or court proceedings beyond those which are accessible to the general public. However, a common law rule has made the news media an exception to the usual rules regarding standing to intervene in a case in order to seek access or oppose closure as well as standing to seek mandamus where access is denied. In order to seek access to sealed court records or closed hearings, a news media entity ordinarily should file a motion to intervene for the limited purpose of seeking access. This applies to both criminal and civil cases. If the news media entity is denied intervention, refused a hearing, or denied access, the news media entity is permitted immediately to appeal the trial court’s decision to the Court of Appeals by writ of prohibition or mandamus. Courier-Journal & Louisville Times Co. v. Peers, 747 S.W.2d 125, 127–28 (Ky. 1988). Further, a news media entity has the right to appeal a Court of Appeals decision in such a case to the Kentucky Supreme Court. See Kentucky Rule Civ. P. 76.36(7). This is in contrast with most Kentucky Court of Appeals decisions, where the Kentucky Supreme Court exercises discretion whether to hear the appeal.
The news media typically file a motion to intervene in the court where the issue is pending.
Intervention is governed by articles 1091–1094 of the Louisiana Code of Civil Procedure. Article 1091 states: “A third person having an interest therein may intervene in a pending action to enforce a right related to or connected with the object of the pending action against one or more of the parties thereto by: (1) Joining with plaintiff in demanding the same or similar relief against the defendant; (2) Uniting with defendant in resisting the plaintiff’s demand; or (3) Opposing both plaintiff and defendant.”
If the motion is denied, a writ application (equivalent to an interlocutory appeal) may immediately be brought to the Court of Appeal, and, if denied there, to the Supreme Court. Although review by the appellate courts is discretionary, unlike in the federal system, the writ process is an integral part of Louisiana appellate practice.
The authority for writ practice is found in article 5, § 2 of the Louisiana Constitution: “A judge may issue . . . all other needful writs, orders, and process in aid of the jurisdiction of his court”; article 5, § 5(A) of the Constitution: “The supreme court has general supervisory jurisdiction over all other courts”; article 5, § 10(A) of the Constitution: “a court of appeal . . . has supervisory jurisdiction over cases which arise within its circuit”; and article 2201 of the Louisiana Code of Civil Procedure: “Supervisory writs may be applied for and granted in accordance with the constitution and rules of the supreme court and other courts exercising appellate jurisdiction.”
When submitting a writ application to the Supreme Court, particular attention must be paid to Supreme Court Rule X, § 1: “Writ Grant Considerations.” The Rule lists five “considerations” which, though “neither controlling nor fully measuring the court’s discretion, indicate the character of the reasons that will be considered” in deciding whether to grant a writ application. The five considerations are: (1) conflicting decisions; (2) significant unresolved issues of law; (3) overruling or modification of controlling precedents; (4) erroneous interpretation or application of constitution or laws; and (5) gross departure from proper judicial proceedings. A writ application “shall address, in concise fashion why the case is appropriate for review under the considerations stated,” and “one or more of” the five considerations “must ordinarily be present in order for an application to be granted.”
The Courts have given full consideration to motions by the news media for access even without granting intervention, however.
Thus, in Copeland v. Copeland, 930 So.2d 940 (La. 2006), the District Court issued an order sealing the entire record of a divorce proceeding. The District Court denied a newspaper’s motion to intervene to challenge the sealing order. The Court of Appeal denied the newspaper’s writ application; the Supreme Court granted writs and vacated and remanded. On remand, the District Court then issued another less-extensive sealing order; the Court of Appeal denied a new writ application; and the Supreme Court again granted writs and ordered almost the entire record opened. In sum, the newspaper won almost total relief, and the Louisiana Supreme Court issued two opinions, even though the motion to intervene was never granted explicitly.
In Chicago Tribune Co. v. Mauffray, 996 So.2d 1273, 1279 (La. App. 2008) the Court of Appeal held that the news media had standing to challenge closure of courtroom proceedings and request access to records of juvenile adjudication proceedings even though the “News Media may not be acting as ‘intervenors’ in the strictest sense.” The Court stated: “The media is often in the best position to champion the important interests that both the media and the public share in the rights and freedoms discussed above. In order to give meaning to these rights and freedoms, representatives of the press and general public must generally be given an opportunity to be heard on the question of their exclusion.”
As to access to records, the Louisiana Public Records Act, La. R.S. 44:1 et seq., allows “any person” to make a public records request. La. R.S. 44:32. “Any person who has been denied the right to inspect or copy a record” may “institute proceedings for the issuance of a writ of mandamus, injunctive or declaratory relief.” La. R.S. 44:35.
Courts are covered by the Public Records Act. See La. R.S. 44:1(A)(1), defining “public body” as including “any branch . . . of state . . . government,” and article 2, § 1 of the Louisiana Constitution: “The powers of government of the state are divided into three separate branches: legislative, executive, and judicial.”
Prevailing plaintiffs in Public Records Act litigants “shall be awarded reasonable attorney’s fees.” La. R.S. 44:35(D). In spite of this mandatory language, courts often are reluctant to award attorney’s fees. See, e.g., Dwyer v. Early, 842 So.2d 1124 (La. App. 2003) (awarding attorneys’ fees is discretionary); Hunter v. Pennington, 726 So.2d 1082 (La. App. 1999) (denying attorneys’ fees to partially-prevailing plaintiff).
When proceeding under the Public Records Act, the better practice is to comply strictly with the terms of the Act. An individual person should request the record and should be the plaintiff if suit is filed. Compare Ferguson v. Stephens, 623 So.2d 711 (La. App. 1993) (granting relief including attorneys’ fees to reporter who submitted request and was the named plaintiff) and Capital City Press v. E. Baton Rouge Par. Metro. Council, 696 So.2d 562 (La. 1997) (granting relief including attorneys’ fees where reporter submitted request and both reporter and newspaper were the named plaintiffs), with Vourvoulias v. Movassaghi, 906 So.2d 461 (La.App. 2005) (denying relief because paralegal who had signed public records request, not general counsel who was plaintiff, had the right to sue over denial of request). Still, cases have proceeded to judgment with the news media entity as the plaintiff. See, e.g., Gannett River States Publ’g v. Hussey, 557 So.2d 1154 (La. App. 1990) (reporter submitted public records request while newspaper was plaintiff).
The typical means of challenging an order impounding a civil proceeding is to move for intervention for the limited purpose of requesting access. See M. R. Civ. P. 79(b)(2) (“Requests for inspection or copying of materials designated as confidential, impounded, or sealed within a case file must be made by motion in accordance with Rule 7.”).
The Maine Supreme Judicial Court endorsed intervention as the proper means for a newspaper to challenge the propriety of a protective order sealing documents that would otherwise be public records under the state open records laws. Bangor Publ’g Co. v. Town of Bucksport, 682 A.2d 227, 229 (Me. 1996) (“Bangor Publishing could have intervened in the protective order action to assert its interest.”). The Court ruled that the newspaper could not obtain access to sealed documents from the City under the state’s right-to-know law; the only way to obtain those documents was to seek relief from the protective order through the courts. Id. at 233.
Although a motion to intervene is the appropriate means of obtaining access, the interest in public access to civil proceedings is not necessarily a sufficient interest—standing alone—to allow intervention, at least intervention as of right to obtain access to sealed juvenile settlement records. In Doe v. Roe, 495 A.2d 1235 (Me. 1985), a newspaper moved to intervene in a medical malpractice action to obtain access to a sealed settlement agreement between a juvenile and a medical provider. The publisher asserted that it had two interests justifying intervention as of right. The newspaper claimed interests “as news gatherer and disseminator of information to the community, claiming the public has an interest in the quality of local medical care” and in “exposing to public scrutiny the proper functioning of the court in its judicial duties.” Id. at 1237–38. With regard to that second interest, the publisher maintained “that by its intervention for the purpose of lifting the impoundment, the public may assure itself that the court’s approval of the settlement was not merely rubberstamped, but fair to both parties and protective of the minor’s interests.” Id. at 1238. The Superior Court agreed.
The Supreme Judicial Court vacated and reversed, rejecting both asserted interests as insufficient to warrant intervention as of right. With respect to the first interest, quality medical care, the Court reasoned:
While Bangor Publishing Company may be interested in discovering and publishing the identities of the parties and the terms of the settlement, neither it nor the public has a direct interest at stake in the underlying claim itself. The public will neither “gain nor lose by the direct legal operation and effect of the judgment.” Were it not for the participation of a minor in the settlement, the agreement would not have been brought before the court.
Id. at 1238. The Court summarily rejected the second asserted interest, the functioning of the judicial system, explaining that “[t]his claim of interest similarly lacks a nexus to the subject of the claim sufficient to warrant intervention in the case.” Id.
Although Doe v. Roe involved intervention as of right only, the Court signaled that permissive intervention likely would also have been improper. Id. at 1238 n.5.
Because Doe v. Roe is out of synch with Bangor Publishing Co. v. Town of Bucksport and prevailing case law in other state and federal courts, it is ripe to be overturned and may no longer be good law.
As in criminal cases, it is may be useful to contact the presiding Judge’s clerk for guidance when an access issue arises. The clerk can promptly bring to the Judge’s attention a letter or other informal request or objection if there is inadequate time to make a written submission. The clerk can provide information on how the judge may wish to handle matters.
The press may intervene in a civil proceeding for the limited purpose of asserting its rights of access to court proceedings and records. Baltimore Sun v. Mayor & City Council of Baltimore, 755 A.2d 1130, 1137 (Md. 2000) (in civil suit, “[w]hen a court restricts public access to judicial proceedings or documents, Maryland law authorizes a newspaper to intervene for the limited purpose of challenging the restrictions as long as it acts with reasonable promptness”); see Doe v. Shady Grove Adventist Hosp., 598 A.2d 507 (Md. Ct. Spec. App. 1991) (intervention for the limited purpose of asserting the First Amendment right of access to court proceedings and court records is proper in civil context). As in criminal cases, individual judges may allow the press to assert its access rights through means other than a formal motion, such as a letter setting forth the relief requested.
The procedures for seeking access to civil Case Records under the Maryland Rules are the same as those governing records in criminal proceedings. See the “Procedure for requesting access in criminal cases” section above.
Proceedings. Nonparties may file a motion to intervene in order request access to proceedings. See, e.g., George W. Prescott Pub. Co. v. Stoughton Div., 701 N.E.2d 307, 308 (Mass. 1998).
Records. Once a record has been impounded, anyone (including nonparties, Unif. R. Impound. P., Rule 6) may challenge the impoundment order whenever they have a “nonfrivolous” reason for doing so. Republican Co. v. Appeals Ct., 812 N.E.2d 887, 893 (Mass. 2004).
In contrast to most types of court orders, an impoundment order carries no continuing presumption of validity. Id. Consequently, the party challenging the impoundment “does not bear the burden of demonstrating either that there has been a material change in circumstances or that whatever good cause may once have justified their impoundment no longer exists. The burden of demonstrating the existence of good cause always remains with the party urging their continued impoundment.” Id.
Nonparties seeking to oppose, modify, or terminate impoundment orders must follow procedures specified in the Impoundment Procedure Rule 6; for pending cases, this requires the filing of a motion, but for closed cases, this requires the filing of a new civil action. Unif. R. Impound. P., Rule 6.
In civil matters, a motion to intervene is an appropriate mechanism for the members of the public and the press to request access. See Minneapolis Star & Tribune Co. v. Schumacher, 392 N.W.2d 197, 207 (Minn. 1986). The Minnesota Supreme Court has found that to challenge the court’s limitation on access to civil cases, a member of the public or the press may move to intervene as of right under Rule 24.01 of the Minnesota Rules of Civil Procedure. Id. Based on Rule 24, the court has formulated a four-part test that a non-party must meet before it can be allowed to intervene in a civil action. Under this test, a party must: (1) make a timely application for intervention; (2) show an interest relating to the property or transaction which is the subject of the action; (3) prove circumstances that show that the disposition of the action will, as a practical matter, impair or impede the party’s ability to protect that interest; and (4) show that the party seeking intervention is not adequately represented by any of the existing parties. Minn. R. Civ. P. 24.01; Schumacher, 392 N.W.2d at 207.
The United States District Court for the District of Minnesota has also allowed members of the press to file for permissive intervention under Fed. R. Civ. P. 24(b) for the purpose of challenging the court’s decision to seal various documents. See In re Guidant Corp. Implantable Defibrillators Prods. Liab. Litig., 245 F.R.D. 632, 635 (D. Minn. Oct. 3, 2007). In deciding to grant permissive intervention, the court must consider three factors: (1) whether the motion was timely; (2) whether the moving party’s claim shares a question of law or fact in common with the main action; and (3) whether intervention will unduly delay or prejudice adjudication of the original parties’ rights. Id. (citing In re Baycol Prods. Litig., 214 F.R.D. 542, 543–44 (D. Minn. 2003)). The district court may exercise its discretion to grant or deny the motion for permissive intervention and its decision will be reviewed under an abuse of discretion standard. Id. (citing South Dakota v. U.S. Dept. of Interior, 317 F.3d 783, 787 (8th Cir. 2003)).
In most jurisdictions, a simple petition is filed with the district court seeking access to the records or proceedings. Several district courts have adopted a procedure which permits a requestor to simply file a letter with the Clerk of Court. This can be done without a formal lawsuit and is generally done pro se.
There is no Nebraska case law on this topic. The Nebraska Guidelines require the clerk of a court to give notice of any hearing on a request to close a hearing to any person who has filed a request for such notice with the clerk. Neb. S. Ct. R. § 6-203. The Nebraska Guidelines require the courts to “afford all interested persons, including the general public, a reasonable opportunity to be present and prepare for such a hearing.” Id.
A request for court records under Nebraska Public Records Act can be made by a letter. Neb. Rev. Stat. § 84-712(4) (Reissue 2014).
To obtain camera access, a media request can be submitted. See, e.g., http://www.clarkcountycourts.us/res/media/DISTRICT%20COURT%20MEDIA1.pdf.
Court Records: Court records are subject to public access unless sealed by order of the court or otherwise protected from disclosure by statute. Rule 1-079 NMRA. Just as any party or member of the public may file a motion for an order sealing the court record, any party or member of the public may file a response to the motion to seal. Id. Following a court order to seal the record or discrete parts thereof, a party or member of the public may move to unseal a sealed court record. Id. “When applicable, the motion should identify any statute, regulation, rule, or other source of law that addresses access to court records in the particular type of proceeding. A copy of the motion to unseal shall be served on all persons and entities who were identified in the sealing order.” Rule 1-079(I) NMRA. In determining whether to unseal, the court will consider the same factors that dictate sealing:
“(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(G) NMRA. “If the court grants the motion to unseal a court record, the order shall state whether the court record is unsealed entirely or in part.” Id.
Under N.C.G.S. 1-72.1(a), "[a]ny person asserting a right of access to a civil judicial proceeding or to a judicial record in that proceeding may file a motion in the proceeding for the limited purpose of determining the person's right of access. The motion shall not constitute a request to intervene . . . The movant shall not be considered a party to the action solely by virtue of filing a motion under this section or participating in proceedings on the motion. An order of the court granting a motion for access made pursuant to this section shall not make the movant a party to the action for any purpose." The court must issue a written ruling on the motion after considering "such facts, legal authority and argument as the movant and any other party to the action desire to present." N.C.G.S. 1-72.1(c). The court must state the reasons for its ruling with sufficient particularity to permit appellate review. Further, once the court has ruled on the motion, the movant or any other party to the action may initiate an immediate interlocutory appeal. N.C.G.S. 1-72.1(e).
A party seeking access may also file a motion to intervene. Intervention is governed by N.C.G.S. 1A-1, Rule 24. To intervene as a matter of right under Rule 24(a), a third-party applicant must be unconditionally entitled to intervene by some other statute, or must have a direct and substantial interest in the litigation that cannot be adequately represented by the existing parties. Thus, where the N.C. Supreme Court found a newspaper-movant had only an "'indirect' or 'contingent' interest--an interest common to all persons--in seeing matters relating to all civil actions made public," it was not entitled to intervene as a matter of right. Virmani v. Presbyterian Health Servs. Corp., 350 N.C. 449, 459 (1999). A media entity may seek permissive intervention where a statute confers a conditional right to intervene, or where its "claim . . . and the main action have a question of law or fact in common." N.C.G.S. 1A-1, Rule 24(b). However, beyond these criteria, "permissive intervention by a private party . . . rests within the sound discretion of the trial court." Virmani, 350 N.C. at 460. The N.C. Supreme Court has said that a trial court is not required to record specific findings of fact and conclusions of law in denying a motion to intervene per se, which is distinguishable from the substantive merits an intervenor hopes to raise. Virmani, 350 N.C. at 461. A denial of intervention does not prevent a party from obtaining a ruling on its right of access. Id. ln Virmani, the Court noted that even if a newspaper's motion to intervened was denied, it remained free to raise questions of access without intervening "by (1) extraordinary writ of practice, (2) a declaratory judgment action, or (3) resort to established remedies in equity; in fact, these represent the legal methods by which questions of public access to courts and their records are most frequently and successfully raised." Id.
Adoption proceedings are closed under N.D.C.C. § 14-15-16(3) to the media and members of the public. Juvenile proceedings are closed under N.D.C.C. § 27-20-51. However, general information not identifying any juvenile, witness, or victim can be requested and released under N.D.C.C. § 27-20-51(7). N.D.C.C. § 25-03.1-43 provides that all records in connection with a mental health commitment proceeding are confidential. For any confidential record information, a person must submit a written motion asking the court for access to the record, and give notice to all parties in the case under N.D. R. Sup. Ct. 41(6)(b).
For all other civil proceedings, which are not closed by statute or court rule, they are by nature open, and no request for access need be submitted.
The Oregon Supreme Court, in Oregonian Publ’g Co. v. O'Leary, 303 Or. 297, 301-02, 736 P.2d 173 (1987), held that “[m]embers of the media and public may . . . assert in court in their own behalf . . . [the open courts requirement of the Oregon Constitution].” Typically, access is requested through informal channels. Where particular hearings are closed, parties may resort to intervention. However, mandamus is also available. E.g., State ex rel Oregonian Publ’g Co. v. Deiz, 289 Or. 277, 613 P.2d 23 (1980).
· Is formal intervention or mandamus necessary?
Formal intervention is required. Capital Cities Media, Inc. v. Toole, 483 A.2d 1339, 1344 (Pa. 1984). Mandamus is not required.
· In which court and how?
In civil matters, a person seeking access to records or proceedings should file a motion to intervene in the court in which the matter is being heard. Toole, 483 A.2d at 1344.
· Is there a press liaison that can help with access issues?
No. The court itself makes decisions on access issues. Each county employs different people and operates its own court system. Different courts have different practices. The county prothonotary or others in court administration might be able to provide assistance or guidance. The Office of Communications and Intergovernmental Relations of the Administrative Office of Pennsylvania Courts (“AOPC”) fields inquiries from reporters across the state as part of its duties as media liaison. See Office of Communications and Intergovernmental Relations, The Unified Judicial System of Pennsylvania, http://www.pacourts.us/judicial-administration/office-of-communications-and-intergovernmental-relations (last visited July 18, 2018). In high-profile criminal trials, the AOPC has worked with local courts on issues relating to media coverage.
· Is orally objecting or sending a letter to the judge acceptable?
Orally objecting at a proceeding is generally acceptable if the proceeding is in progress and the closure is happening at that time. In other circumstances, a written request for access should be made, normally through a motion. Some judges will accept a letter, depending on the nature of the relief sought. This is highly judge and court specific, however, so the best practice is to inquire with the court and chambers of the judge who is presiding over the matter.
There is no formal rule or practice, although members of the media have moved to intervene in order to assert their arguments against sealing or court closures. See, e.g., Rapid City Journal v. Delaney, 2011 S.D. 55, 804 N.W.2d 388 (noting that media entity intervened in lower court and then challenged court’s gag order and orders closing court proceedings and records).
As in criminal cases, Rule 4-202.03 of the Utah Rules of Judicial Administration provides that “any person may access a public record” and includes an extensive list of individuals that may access private, protected, juvenile, or other court records. Utah R. Judicial Admin Rule 4-202.03. Requests for access to records in a case are governed by Rule 4-202.04, which states in pertinent part:
(1) A request to access a public court record shall be presented in writing to the clerk of the court unless the clerk waives the requirement. A request to access a non-public court record to which a person is authorized access shall be presented in writing to the clerk of the court. A written request shall contain the requester’s name, mailing address, daytime telephone number and a description of the record requested. If the record is a non-public record, the person making the request shall present identification.
(2) (A) If a written request to access a court record is denied by the clerk of court, the person making the request may file a motion to access the record.
(B) A person not authorized to access a non-public court record may file a motion to access the record. If the court allows access, the court may impose any reasonable conditions to protect the interests favoring closure.
Utah R. Judicial Admin Rule 4-202.04(1)-(2).
The Vermont Rules for Public Access to Court Records provide that:
A case record to which the public has access may be inspected and copied at any time when the office of the clerk of the court is open for business. The record custodian shall act on a request promptly within the time limits set in 1 V.S.A. § 318. If a copy of the case record is requested, 1 V.S.A. § 316(g) and (h) shall apply, and the record custodian shall charge the fees for copying and, if applicable, staff time in accordance with 1 V.S.A. § 316(b)-(d) and (f).
Vt. Pub. Acc. Ct. Rec. Rule 6(f). The “record custodian” is typically the clerk of the court. See Vt. Pub. Acc. Ct. Rec. Rule 3(f).
Unlike access to court records, there is no comprehensive rule or statute governing public access to court proceedings in Vermont. However, the Vermont Supreme Court has repeatedly recognized the “generally accepted practice as well as the public’s constitutional and common law right of access to court records and proceedings.” State v. Tallman, 148 Vt. 465, 472, 537 A.2d 422, 427 (Vt. 1987); see also Herald Ass’n v. Ellison, 138 Vt. 529, 533-534, 419 A.2d 323, 326, (Vt. 1980) (noting that, in Vermont, public judicial proceedings are the rule and closed ones the exception). Thus, there is no need to request access to the majority of civil proceedings.
There are no hard and fast rules in Virginia for requesting access to judicial proceedings and records. When access is denied, it is often the result of a miscommunication or misinterpretation of the judge’s directions, and sometimes it is done without the judge’s knowledge. Judges appreciate the opportunity to correct a mistake, or to more thoroughly consider closure and sealing options, without enduring a full-blown adversarial contest. Therefore, whenever practical, one denied access should first bring the issue to the court’s attention informally, either by oral motion or by submitting a letter to the court. However the request is presented, it is critical that the request unambiguously identify the access sought, with as much specificity as the circumstances allow. Additionally, the request should be memorialized in a writing that is incorporated into the record of the underlying proceeding. Similarly, if the request is denied, a written record of the denial should be preserved and made part of the court’s record. Following these steps preserves the requesting party’s ability to challenge both the procedural and substantive aspects of an order restricting access.
In the event that intervention is warranted, the requesting party should consult the forum’s local rules, if any, governing intervention and motions practice generally. A written motion requesting leave to intervene for the limited purpose of asserting the public’s qualified right of access, accompanied by or consolidated with a supporting memorandum citing the applicable legal authorities, ordinarily will suffice. The motion and any supporting memorandum should be served on all counsel of record. In time-sensitive matters, a courtesy copy should be provided to the court.
As part of the Bone-Club/Ishikawa analysis, the judge must provide anyone present at the time of the closure motion the opportunity to object to closure. See Seattle Times Co. v. Ishikawa, 97 Wn.2d 30, 36–39 (1982); State v. Bone-Club, 128 Wn.2d 254, 258–59 (1995). Third parties are entitled to intervene in civil matters, though in practice, courts often hear media arguments on access issues without the need for formal intervention.
The United States Supreme Court has declined to specify the proper method for requesting access. Jurisdictions vary, though “courts have widely recognized that the correct procedure for a non-party to challenge a protective order is through intervention for that purpose.” United Nuclear Corp. v. Cranford Ins. Co., 905 F.2d 1424, 1427 (10th Cir. 1990) (citing Public Citizen v. Liggett Group, Inc., 858 F.2d 775, 783 (1st Cir. 1988)).
Many courts allow a less formal challenge in the form of an oral request for access or a letter to the judge overseeing the proceedings at issue. In some courts, the press liaison or public information officer may be able to assist the press in requesting access to closed proceedings or records.
See Wis. Stat. § 803.09 (Intervention):
(1) Upon timely motion anyone shall be permitted to intervene in an action when the movant claims an interest related to the property or transaction which is the subject of the action and the movant is so situated that the disposition of the action may as a practical matter impair or impede the movant’s ability to protect that interest, unless the movant’s interest is adequately represented by existing parties.
(3) A person desiring to intervene shall serve a motion to intervene upon the parties as provided in s. 801.14. The motion shall state the grounds therefor and shall be accompanied by a pleading setting forth the claim or defense for which intervention is sought. The same procedure shall be followed when a statute gives a right to intervene.
See, e.g., State ex rel. Bilder v. Delavan Township, 112 Wis. 2d 539, 334 N.W.2d 252 (Wis. 1983) (Members of news media generally have a right to intervene to challenge closure of courtroom and records).