D. Obtaining review of initial court decisions
· How are access decisions reviewed (appeal or mandamus)?
“It is well settled that an order that denies a request for public access to a criminal proceeding or judicial documents constitutes a collateral order from which an immediate appeal may be taken.” Commonwealth v. Selenski, 996 A.2d. 494, 495 n.2 (Pa. Super. 2010); accord, e.g., PA Childcare LLC v. Flood, 887 A.2d 309, 310 n.1 (Pa. Super. 2005) (same for civil proceeding); Kurtzman v. Hankin, 714 A.2d 450, 452 (Pa. Super. 1998) (citing R.W. v. Hampe, 626 A.2d 1218 (Pa. Super. 1993)). To satisfy the requirements of the collateral order rule, the closure order must be “ separable from and collateral to the main cause of action where  the right involved is too important to be denied review and  the question presented is such that if review is postponed until final judgment in the case, the claim will be irreparably lost.” E.g., Shearer v. Hafer, 177 A.3d 850, 857 (Pa. 2018) (quoting Pa. R. App. P. 313(b)). While courts will tolerate some interrelatedness “between merits issues and the question sought to be raised in the interlocutory appeal,” the collateral order doctrine will apply only where the issue raised on appeal is “conceptually distinct from the merits of plaintiff’s claim.” Pridgen v. Parker Hannifin Corp., 905 A.2d 422, 433 (Pa. 2006) (citation and quotation omitted).
Two decades ago, the Superior Court applied an admittedly “narrow” interpretation of the collateral order rule and held that an order denying access was not immediately appealable under the unique facts presented. See Commonwealth v. Sartin, 708 A.2d 121, 122 (Pa. Super. 1998). In that case, a newspaper sought to unseal a document that was partially sealed to hide the names of people “involved in matters before the grand jury and the Disciplinary Board” for attorneys. Id. at 124. A two-judge majority of the court held, over a dissent, that the press’s right to access that information would not “be irreparably lost if review is postponed until final disposition of the underlying case,” as the sealing was viewed as “temporary.” Id. at 123; but see id. at 124 (Ford Elliott, J., dissenting) (recognizing that “the press, which seeks to publish news, will be irreparably harmed if review of this order awaits disposition of the unrelated underlying criminal trial”). The holding in Sartin appears to be an outlier that no longer reflects the state of the law, as numerous cases have subsequently permitted the press to immediately appeal decisions denying access to records and proceedings.
· Procedure and timing of review?
The procedure and timing of review is the same as that for any other court decision. It is, however, suggested that the expedited procedure outlined below is followed when appealing an access decision. See Capital Cities Media, Inc. v. Toole, 483 A.2d 1339, 1344 (Pa. 1984).
· Is there a procedure for expedited review?
If a trial court enters an order closing a proceeding, the party seeking access, as an intervenor, should request the trial court to stay the proceeding. See Commonwealth v. Dorler, 588 A.2d 525, 527 (Pa. Super. 1991); Pa. R. App. P. 1732(a); see also Capital Cities Media, 483 A.2d at 1343 (“In Pennsylvania there is a procedure for obtaining expedited review which affords complete relief where an alleged abridgment of the rights of the media is at issue.”). If the trial court denies the request to stay the proceeding, the intervenor can seek an emergency appeal of the refusal to grant temporary relief in the Superior Court, see Pa. R. App. P. 1732(b), or appeal directly to the Pennsylvania Supreme Court to have the closure order reviewed, see 42 Pa. Cons. Stat. § 726 (providing plenary jurisdiction to Supreme Court for “an issue of immediate public importance”).
If the trial court does not delay the proceeding to allow the intervenor the opportunity to make an emergency appeal to the Superior Court, and the intervenor fails to properly seek expedited review of the trial court’s decision, the issue of closure could become moot. See Dorler, 588 A.2d at 526-28 (ruling that request for access to suppression hearing was moot because “[t]he precise relief appellants seek instantly, i.e., overturning the closure order, cannot be granted at this point” because “[t]he closed suppression hearing has been conducted, the trial is now complete, and the effect of the closure order cannot now be undone.”). But, the intervenor should continue to seek access to transcripts of the proceeding if they remain sealed.
· Standard of review?
“The threshold consideration of whether there exists a common law or constitutional right of public access to a judicial proceeding raises a pure question of law. Our standard of review, therefore, is de novo, and our scope of review is plenary.” Selenski, 996 A.2d. at 496; accord Commonwealth v. Upshur, 924 A.2d 642, 647 (Pa. 2007).
The trial court’s decision regarding access to a particular item, however, will be reviewed for “abuse of discretion.” Upshur, 924 A.2d at 647. A trial court commits an abuse of discretion where it errs as a matter of law or its decision is “the result of partiality, prejudice, bias, or ill-will.” Kurtzman v. Hankin, 714 A.2d 450, 453 (Pa. Super. 1998).
The appeal of an order closing records is not mooted by the completion of the underlying action. See Kurtzman, 714 A.2d at 452 (citing Commonwealth v. Buehl, 462 A.2d 1316 (Pa. Super. 1983)). Similarly, a third party’s disclosure of a document to the press will not necessarily moot a motion made by a news organization to obtain the document from an official source. See In re 2014 Allegheny Cty. Investigating Grand Jury, 173 A.3d 653, 656 (Pa. 2017). In such cases, because the need to verify information is paramount in accurate reporting, the mootness question will turn on the reliability, verifiability, or completeness of the document that has already been disclosed. See id.; see also Lyft, Inc. v. Pennsylvania Pub. Util. Comm’n, 145 A.3d 1235, 1247-48 (Pa. Commw. 2016) (Pittsburgh-Gazette’s motion to intervene for purposes of obtaining records in agency proceeding mooted where Commonwealth Court already affirmed agency’s holding that the records must be made publicly available).
In cases in which a court closes a proceeding, if the trial court does not delay the proceeding to allow the intervenor the opportunity to make an emergency appeal to the Superior Court, the intervenor’s failure to properly seek expedited review of the trial court’s decision might render the access challenge moot. See Dorler, 588 A.2d at 526-28. But, the intervenor should continue to seek access to transcripts of the proceeding if they remain sealed.
In 1997, the Virginia Court of Appeals, citing its own precedent and decisions from the Fourth Circuit, held that “[m]andamus rather than appeal is the proper means to challenge the closure order in a pending criminal trial.” In re Times-World Corp., 25 Va. App. 405, 412, 488 S.E.2d 677, 680 (Va. Ct. App. 1997) (internal quotations and citations omitted). Three years later, however, the Supreme Court of Virginia found that the Court of Appeals’ decisions were “wrongly decided” and “inconsistent with principles firmly entrenched in [Virginia] jurisprudence” concerning the availability of mandamus. Hertz v. Times-World Corp., 259 Va. 599, 610, 528 S.E.2d 458, 464 (2000). In a 4-3 decision that included a vigorous dissent, the Supreme Court held that closure and sealing orders may only be reviewed by appeal, not mandamus. Id. See also id. at 610–15, 528 S.E.2d at 464–67 (2000) (Koontz, J., dissenting). Yet, one year after Hertz, the Virginia Supreme Court unanimously held that mandamus was the appropriate remedy to direct a circuit court clerk to permit inspection of audio tape recordings filed in connection with a felony criminal trial. See Smith v. Richmond Newspapers, Inc., 261 Va. 113, 118-119, 540 S.E.2d 878, 881-882 (2001). Interestingly, the justice who authored the dissent in Hertz also authored the majority, unanimous decision in Smith.
Requiring an appeal rather than allowing mandamus undermines the public’s contemporaneous right of access, a concern highlighted by the dissenting justices in Hertz. See Hertz, 259 Va. at 614, 528 S.E.2d at 466 (Koontz, J., dissenting). Since Hertz, the Virginia Supreme Court has acknowledged that “to work effectively, public access must be contemporaneous—the public must be able to scrutinize the judicial process as it takes place... To delay or postpone disclosure undermines the benefits of public scrutiny and may have the same result as complete suppression.” Daily Press, Inc. v. Commonwealth, 285 Va. 447, 453, 739 S.E.2d 636, 640 (2013). See also Daily Press, Inc. v. Commonwealth, 60 Va. App. 213, 228, 725 S.E.2d 737, 744 (Va. Ct. App. 2012) (“Even if a closure order causes ‘minimal delay in access to the materials upon which a judicial decision was made,’ that delay ‘threaten[s]’ ‘the value of openness.’”) (quoting In re Charlotte Observer, 882 F.2d 850, 856 (4th Cir. 1989)). The Daily Press court also noted that the newspaper’s inability to obtain “expedited review of the [sealing] order through a writ of mandamus underscores the evasive nature of the present dispute.” Id.at 453 n.3, 739 S.E.2d at 639 n.3. These observations in Daily Press, decided thirteen years after the close decision in Hertz, may indicate a willingness by the Virginia Supreme Court to revisit its decision in Hertz and recognize mandamus as the preferred method for appellate review of orders restricting public access to judicial proceedings and records.
Termination of the underlying action does not moot an appeal of an order restricting public access. See Richmond Newspapers, Inc. v. Commonwealth, 222 Va. 574, 592, 281 S.E.2d 915, 925 (1981) (citations omitted); see also Stone v. Univ. of Maryland Med. Sys. Corp., 855 F.2d 178, 180 n.* (4th Cir. 1988) (holding that the final disposition of the underlying dispute did not moot an appeal of a sealing order “because the right of access to judicial records and documents is independent of the disposition of the merits of the case.”).
Agreement that a sealing order was entered in error does not moot an appeal challenging the merits of the sealing order. See Daily Press, Inc. v. Com., 285 Va. 447, 454 n.6, 739 S.E.2d 636, 640 n.6 (2013).