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H. Appellate records

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  • 2nd Circuit

    The Second Circuit has not addressed access to appellate records specifically. However, there exists the presumption that access is entitled to great weight if a party submits the document to the court for purposes of adjudication. Lugosch v. Pyramid Co., 435 F.3d 110, 114 (2d Cir. 2006). As the Second Circuit explained, once a document is submitted to the court, the public should be able to assess the correctness of the judge's decision, and "documents that the judge should have considered or relied upon, but did not, are just as deserving of disclosure as those that actually entered into the judge's decision." Id.; see also Bernsten v. O'Reilly, 2018 U.S. Dist. LEXIS 70313, at *3 (S.D.N.Y. Apr. 3, 2018). Therefore, according to the Court of Appeals, documents submitted to the Court for purposes of adjudication, should not remain under seal "absent the most compelling reasons." Id.; see also Cianci v. New Times Publishing Co., 88 F.R.D. 562, 565 (S.D.N.Y. 1980) (holding that in light of the parties' use of sealed documents in their arguments relating to defendants' motion to dismiss and reference to sealed deposition testimony by the trial court and the appellate court, the documents had become part of the public record and the press could not be denied access to them).

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  • 4th Circuit

    The public’s First Amendment right of access extends to appellate proceedings and records, although the presumption of access can be overcome by a compelling governmental interest. See United States v. Moussaoui, 65 F. App’x 881 (4th Cir. 2003).

    If the court concludes that sealing is warranted, the court may file its statement of the reasons for its decision under seal. In re Wash. 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).

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  • 5th Circuit

    Nothing found specific to the Fifth Circuit. Although, anecdotally, the Fifth Circuit has received and granted motions to seal briefs in extraordinary circumstances.

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  • 7th Circuit

    “Information transmitted to the court of appeals is presumptively public because the appellate record normally is vital to the case's outcome. Agreements that were appropriate at the discovery stage are no longer appropriate for the few documents that determine the resolution of an appeal, so any claim of secrecy must be reviewed independently in this court.”  Baxter International, Inc. v. Abbott Laboratories, 297 F.3d 544, 545-46 (7th Cir. 2002) (citing Seventh Circuit Operating Procedure 10). “We recognize only three classes of material subject to seal: trade secrets, information covered by a recognized privilege, and information required by statute to be maintained in confidence. . . . If the material in question falls into one of these three categories, then the two competing interests to be weighed by the court are the moving party's interest in privacy and the public's interest in transparency.” United States v. Sanford-Brown, Ltd., 788 F.3d 696, 712 (7th Cir. 2015), vacated on other grounds, 136 S. Ct. 2506 (2016), opinion reinstated in relevant part on remand, 840 F.3d 445 (7th Cir. 2016) (citing Baxter, at 546).  The public's interest in the judicial record is “especially acute” where “the government has subsidized the good or service underlying the litigation from the public fisc” and a party “subsidized by the public fisc and that seeks to seal portions of the record must satisfy a higher burden. . . .”  Id. at 712-13.

    The Seventh Circuit will “deny outright any motion under Operating Procedure 10 that does not analyze in detail, document by document, the propriety of secrecy, providing reasons and legal citations. Motions that represent serious efforts to apply the governing rules will be entertained favorably, and counsel will be offered the opportunity to repair shortcomings. Motions that simply assert a conclusion without the required reasoning, however, have no prospect of success.”  Baxter, 297 F.3d at 548; see also Union Oil Co. of California v. Leavell, 220 F.3d 562, 567 (7th Cir. 2000) (refusing request to seal all briefs on appeal and use only pseudonyms in any opinion); In re Krynicki, 983 F.2d 74 (7th Cir. 1992) (Easterbrook, J., in chambers) (denying request to seal briefs on appeal); Pepsico Inc. v. Redmond, 46 F.3d 29 (7th Cir. 1995) (denying request to seal briefs on appeal and portions of district court opinion).  Compare Sanford-Brown, Ltd., 788 F.3d at 713 (where motion concerning certain exhibits explained why each document “entail[ed] proprietary trade secrets, and provide[d] justification for why they should remain sealed,” party “satisfied its high burden”).

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  • Alabama

    Subject to the provisions of Holland v. Eads, 614 So. 2d 1012, 1016 (Ala. 1993), appellate records should be available to the public.

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  • Arizona

    No published decisions.

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  • Arkansas

    The record and accompanying briefs, motions, or other filings in all adoption appeals shall be sealed. Ark. Sup. Ct. R. 6-3(a). The Clerk shall ensure that the public docket use initials to identify juveniles in those appeals. Counsel and the Court shall preserve the juvenile’s anonymity by using initials in all subsequent captions, opinions, motions, and briefs, as well as in oral argument, if any. The record and papers on appeal shall be open for inspection only to counsel and parties of record, or, only upon order of the Court after review of a written motion. In any other appeal in which counsel for either side believes that a person’s identity should be protected by the Court, counsel may move the Court to do so. Ark. Sup. Ct. R. 6-3(a).

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  • Georgia

    Appellate records are presumptively open. See Atlanta Journal-Constitution v. Long, 259 Ga. 23, 24 (1989).

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  • Idaho

    Idaho Appellate Rule 31(b) recognizes that some confidential documents used at the trial court level must be transmitted with the record on appeal.  In appeals from proceedings exempt from disclosure, the Idaho Supreme Court or the Court of Appeals may in their rulings use substitute designations such as “John Doe” or “Jane Doe” or further deletions to preserve the anonymity of participants in the proceeding.  I.C.A.R. 32(h).

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  • Kansas

    A presumption of openness applies to appellate records in civil cases under the Kansas Open Records Act, 45-215 et seq., as implemented by the Kansas Judicial Branch.  See Kansas Judicial Branch, Administrative Order No. 156, Administration of the Kansas Open Records Acthttp://www.kscourts.org/kansas-courts/supreme-court/administrative-orders/Admin-order-156.pdf.  Rules in appellate cases are accessible on the Kansas Judicial Branch’s website.  See  Cases and Opinions, Kansas Judicial Branch, http://www.kscourts.org/Cases-and-Opinions/default.asp.  Records associated with appellate cases may be requested from the Clerk of the Appellate Courts, http://www.kscourts.org/appellate-clerk.

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  • Nevada

    A civil court record or any portion of it that was sealed in the trial court shall be made available to the Nevada Supreme Court in the event of an appeal. Court records sealed in the trial court shall be sealed from public access in the Nevada Supreme Court subject to further order of that court. SRCR 7.

    All events and actions taken in administrative matters or in the preparation and circulation of draft opinions or orders, bench memoranda, and memoranda and correspondence between chambers or staff concerning pending cases shall be confidential, as shall the events, actions, and votes that are taken at any draft or post-argument conference. The contents of orders or opinions shall remain confidential until filed by the clerk of the court and released to the public.

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  • New Mexico

    Rule 12-314 NMRA dictates that “court records are subject to public access unless sealed by order of the court or otherwise protected from disclosure under the provisions of this rule.” Because “court record” is defined as “all or any portion of a document, paper, exhibit, transcript, or other material filed or lodged with the court, and the register of actions and docket entries used by the court to document the activity in a case,” it follows that appellate records are allowed the same presumption to public access. As such, appellate records shall be open to the public absent statutory exclusion, see NMSA 1978, § 32A-58(C); NMSA 1978, § 24-1-15(J); NMSA 1978, § 24-2B-5.1(B); and NMSA 1978, § 40-11A-625, or a court order to the contrary. The order must set forth the court’s findings that:

    “(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 12-314.

    The order shall require the sealing of the record only to the extent necessary. Id. 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. Id.

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  • Pennsylvania

    No Pennsylvania decisions have addressed this issue, but it is well-established that the public and press have a constitutional right to appellate court proceedings. See, e.g., United States v. Moussaoui, 65 F. App’x 881, 890 (4th Cir. 2003) (“[t]here can be no question that the First Amendment guarantees a right of access by the public to oral arguments in the appellate proceedings . . . . Such hearings have historically been open to the public, and the very considerations that counsel in favor of openness of . . . trial support a similar degree of openness in appellate proceedings.”).

    Effective January 6, 2018, the Pennsylvania Supreme Court approved a new policy that governs public access to case records, 204 Pa. Code § 213.81. The policy applies to case records filed in Pennsylvania’s appellate courts.

    Remote access to the electronic case record information residing in the Pennsylvania Appellate Court Case Management System (PACMS) is available on https://ujsportal.pacourts.us/.

    Electronic case record information held on PACMS is also governed by Electronic Case Record Access Policy of the Unified Judicial System of Pennsylvania, available at http://www.pacourts.us/assets/files/page-1090/file-837.pdf.

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