H. Post-trial records

The Supreme Court has not addressed the right of access to post-trial records, though the U.S. Court of Appeals for the Ninth Circuit has extended the First Amendment presumption of access to post-trial proceedings and records because it found “no principled basis for affording greater confidentiality to post-trial documents and proceedings than is given to pretrial matters. The primary justifications for access to criminal proceedings . . . apply with as much force to post-conviction proceedings as to the trial itself.” CBS, Inc. v.  U.S. District Court, 765 F.2d 823, 825 (9th Cir. 1985).

Some courts have carved out exceptions, however. The Ninth Circuit wrote that “[o]ur opinion is not to be read to disapprove the practice of keeping presentence reports confidential. We do not reach that issue, for this case is distinguishable. The Federal Rules of Criminal Procedure expressly provide for limited access to information contained in presentence reports.” Id. at 826 (citations omitted).

A district court in the Eleventh Circuit has recognized a common law and First Amendment right of access to records of post-trial proceedings. See United States v. Miller, 579 F. Supp. 862, 865 (citing with approval United States v. Carpentier, 526 F. Supp. 292, 295 (E.D.N.Y. 1981)). In United States v. Ignasiak, the Eleventh Circuit recognized that this access to records extends to post-trial pleadings when it granted access to a post-trial notice of an in camera proceeding due to concerns about the rationale for keeping the document sealed. 667 F.3d 1217, 1237-239 (11th Cir. 2012); see also Jackson v. Deen, No. CV412–139., 2013 WL 2027398, *14 (S.D. Ga 2013).

In United States v. Kravetz, the First Circuit concluded that the public availability of sentencing memoranda and sentencing-related letters sent by third-parties directly to the district court are “judicial documents subject to the common law presumption of public access[,]” but reserved judgment as to whether a constitutional right of access attaches to those documents. 706 F.3d 47, 53, 57 (1st Cir. 2013).

The First Amendment right of access extends to post-trial records.  See United States v. Gerena, 869 F.2d 82, 85 (2d Cir. 1989) (extending right of access to "briefs and memoranda" filed in connection with pre-trial and post-trial motions).  The Southern District of New York has also approvingly noted that the Ninth Circuit has found "no principled basis for affording greater confidentiality to post-trial documents and proceedings than is given to pretrial matters."  United States v. Milken, 780 F. Supp. 123, 126 (S.D.N.Y. 1991) (quoting CBS, Inc. v. U.S. Dist. Ct., 765 F.2d 823, 825 (9th Cir. 1985)); see also United States v. Simone, 14 F.3d 833, 838 (3d Cir.1994) (finding a public right of access to a post-trial examination of juror misconduct even though no cited history predated 1980).  As with the general analysis governing access to courts and court records, this right may be counterbalanced.  See id. (finding closure appropriate in connection with memorandum in support of a motion to reduce a sentence where, inter alia¸ there was a showing that disclosure could impair an ongoing investigation.)

In United States v. Chang, the Third Circuit held that a sentencing memorandum, filed pursuant to U.S. Sentencing Guidelines Manual § 5k1.1, is available to the public under the common law right of access to judicial records.  47 F. App’x 119, 123 (3d Cir. 2002).  In Chang, the Court noted that the memorandum was filed with the court and used by the court in “adjudicatory proceedings.”  Id. at 122 (quoting In re Cendant Corp., 260 F.3d 183, 192 (3d Cir. 2001)).

The public has a First Amendment right of access to sentencing memoranda and the exhibits attached thereto. See United States v. Stier, No. 2:17-cr-00054, 2018 WL 1787888, *3 (S.D.W. Va. Apr. 13, 2018) (citing In re Washington Post Co., 807 F.2d 383, 390 (4th Cir. 1986)); United States v. Shaffer, No. 2:21-CR-00076, 2021 WL 4255617, *2 (S.D.W. Va. Sept. 17, 2021) (“Courts addressing this issue consistently hold that sentencing memoranda should not be kept under seal because the documents are judicial records and, absent unusual circumstances, do not contain the type of information that typically outweighs the public’s right of access.”) (collecting cases). But see United States v. Bas, No. CR JKB-16-0324, 2022 WL 1270841, *2 (D. Md. Apr. 28, 2022) (“[S]entencing memoranda are subject to the more limited presumption of access arising from the ‘common law right to inspect and copy judicial records and documents.’”) (quoting United States v. Harris, 890 F.3d 480, 492 (4th Cir. 2018)).

An interest in protecting the physical and psychological well-being of individuals related to the litigation, including family members and particularly minors, was sufficient to overcome the public’s right of access to a sentencing memorandum and justify redacting the names of the defendant’s wife and child and their photographs. See United States v. Harris, 890 F.3d 480, 492 (4th Cir. 2018) (reversing order denying defendant’s motion to seal sentencing memorandum and remanding with instructions to allow the defendant to file the full memorandum under seal and a redacted version available to the public).

Conclusory assertions about risks to privacy and safety and the mere presence of the media were insufficient to override the public’s right of access to letters of support submitted in connection with the defendant’s sentencing. United States v. George, No. 518-CR-00023-KDB-DCK, 2022 WL 469086, *1 (W.D.N.C. Feb. 15, 2022).

The public has a right of access to records filed in connection with a motion to vacate a plea agreement. See United States v. Anderson, No. 1:11-cr-231, 2015 WL 11111065, *1 (E.D. Va. Mar. 16, 2015), aff'd, 607 F. App'x 314 (4th Cir. 2015).

Without conclusively deciding the issue, the Fourth Circuit has said that the public likely has a First Amendment right of access to a court order denying a sentence reduction. See United States v. Doe, 962 F.3d 139, 146 (4th Cir. 2020).

Nothing found specific to the Fifth Circuit.

There is no First Amendment right of access to presentence investigation reports. Common law right of access only to the portions of a presentence investigation report filed in court when need for disclosure outweighs the interests in confidentiality.  United States v. Corbitt, 879 F.2d 224 (7th Cir. 1989).

Seventh Circuit Rule 10(f) provides:

The presentence report is part of the record on appeal in every criminal case. The district court should transmit this report under seal, unless it has already been placed in the public record in the district court. If the report is transmitted under seal, the report may not be included in the appendix to the brief or the separate appendix under Fed. R. App. P. 30 and Circuit Rule 30. Counsel of record may review the presentence report at the clerk's office but may not review the probation officer's written comments and any other portion submitted in camera to the trial judge.

See also N.D. Ill. Local Crim. R. 32.1(j) (presentence report “shall not be disclosed to any person or agency without the written permission of the sentencing judge . . . Upon completion of all appellate matters, the report and the recommendation shall be returned to the probation department. Unauthorized copying, dissemination, or disclosure of the contents of the report in violation of these rules may be treated as contempt of court and punished accordingly”); C.D. Ill. Local Crim. R. 32.1(C), 57.2(B)(2), (3); S.D. Ill. Local Crim. R. 32.1(b); S.D. Ind. Local Crim. R. 32-1; E.D. Wis. Local Crim. R. 32; W.D. Wis. Admin. Order No. 337 Re: General Rules for Filing Documents Under Seal.

Noting that “the common law right of access has historically been interpreted as a right to judicial records, which is not the same as an in-court proceeding,” the court in United States v. Sonin, 167 F. Supp. 3d 971, 44 Media L. Rep. 1641 (E.D. Wis. 2016) “exercise[d] its discretion to keep the . . . portion of the sentencing hearings” relating to defendants’ cooperation with the authorities, “and the transcripts of that portion,” under seal.  Having found “valid reasons to . . . override [newspaper’s] First Amendment right of access” the court likewise held newspaper did not show a specific need for access to the entire sentencing hearings under the common law, but only “a generalized interest in the outcomes of criminal cases.” Id. at 981-82 (citing Corbitt, 879 F.2d at 226).

There appears to be no Eighth Circuit case law discussing the right of access to post-trial records in criminal court.

We know of no statutory or case law authority directly relating to the public’s right of access to post-trial records generally; however, since post-trial proceedings are presumptively open under Rule 9.3 of the Alabama Rules of Criminal Procedure, the same right of access that attaches to those proceedings very likely attaches to records of the same. Exceptions to this rule, however, are “presentence reports, diagnostic reports, and reports of any physical or mental examinations prepared pursuant to Rule 26.3 and Rule 26.4,” which are not matters of public record pursuant to Ala. R. Crim. P. 26.5. As such, these materials are not subject to a right of access by the public.

Alaska appellate courts have not addressed the issue of post-trial records specifically, but the case law applying a constitutional and/or common law right of access to judicial proceedings and records, and court rules like Alaska Administrative Rule 37.5, presumably apply to openness of all court records. One issue to watch out for is the possibility that certain records, particularly exhibits, may no longer be available after a trial.  Court rules or common practice, or orders entered by a court at the conclusion of a trial or—like many protective orders entered earlier in the case with provisions that take effect at the close of proceedings—may require the return of documents, particularly exhibits, to the party that submitted them. (These, in turn, may be presumptively subject to return to the party that initially produced them pursuant to the terms of a protective order.)  For this reason, it is highly desirable, and most often necessary, to seek access to any such documents while they are still in the actual or constructive possession of the court—or at the very least still in the possession of parties, though that may be insufficient.  Waiting too long may preclude access to documents if the court concludes that it no longer has the ability to address the issue and afford the relief sought in a motion for access to judicial records, because they are no longer judicial records.  It is better to obtain trial exhibits as they are admitted, or promptly at the conclusion of a trial, than to take a chance that they will be available later.

In Johnson v. State, 50 P.3d 404 (Alaska Ct. App. 2002), the Court of Appeals affirmed the trial court’s refusal to seal the records of 20-year-old criminal convictions for kidnapping and rape, based mainly on Alaska Admin. R. 37.5.  The appellate court aknowledged that “courts, commentators, and legislatures have recognized that a person with a criminal record is often burdened by social stigma, subjected to additional investigation, prejudiced in future criminal proceedings, and discriminated against by prospective employers.”  Johnson, 50 P.3d at 406. Nonetheless, it said this case was no different than any number of felons who are successfully rehabilitated yet who can point to negative events in their lives and blame the events on the disclosure of criminal records, id., and that the superior court could reasonably conclude that the public policy reasons for allowing criminal records to remain open to the public outweigh the reasons that Johnson proffered for sealing his records. This case is addressed further in connection with general considerations with respect to access to criminal court records in section IV.A.

Pre-sentence reports are presumptively open to public inspection, unless a court orders otherwise.  See Ariz. R. Crim. P. 26.6(f).

California courts have recognized a constitutional right of access to probation reports. People v. Connor, 115 Cal. App. 4th 669, 695, 9 Cal. Rptr. 3d 521 (2004). However, under Penal Code § 1203.05, unrestricted access to the complete probation report ends 60 days after judgment is entered or probation ordered (whichever is earlier). If a “subsequent accusatory pleading is filed,” the probation report from an earlier conviction is again available for a 60-day period. After that 60-day period, the report is available only by petition to the trial court, which must evaluate whether any private information should be redacted before it releases either the entire report or a redacted report. Connor, 115 Cal. App. 4th at 696. The trial court also may sua sponte order that a probation report be made available to the public.

The Colorado Criminal Justice Records Act (“CCJRA”) governs public access to criminal justice records, and generally provides that custodians of ordinary criminal justice records have discretion to permit or deny public access.  C.R.S. §§ 24-72-302 & 24-72-304. The Colorado Judicial Department’s Public Access to Court Records policy (pdf) generally permits public access to court records, subject to certain exceptions.  (Section 4.10; Section 4.60.)

The CCJRA expressly singles out records relating to posttrial release from custody, among others, as being subject to a strong right of access.  C.R.S. § 24-72-302(7) (defining such release as an “official action”); C.R.S. § 24-72-303 (providing a stronger right of access to records relating to an “official action” than to ordinary criminal justice records); Madrigal v. City of Aurora, 2014 COA 67, ¶ 9, 349 P.3d 297, 299 (Colo. App. 2014) (distinguishing the right of access to records related to official actions and ordinary criminal justice records; Freedom Colo. Info., Inc. v. El Paso Cnty. Sheriff’s Dept., 196 P.3d 892, 897 (Colo. 2008).

The Colorado Supreme Court has declined to recognize “a constitutional right of access to any and all [criminal] court records in cases involving public concern.”  People v. Owens, 2018 CO 55, ¶ 7, 420 P.3d 257, 258 (Colo. 2018).  “[W]e have never recognized any such constitutional right—whether under the First Amendment [to the U.S. Constitution] or Article II, section 10 of the Colorado Constitution.”  Id. ¶ 8.  The Colorado Supreme Court stated that there is “no ‘absolute right to examine’ court records” but “inspection may be permitted ‘at the discretion of the court’” and in accordance with “laws and administrative procedures currently in place—including, but not limited to, the Colorado Criminal Justice Records Act, §§ 24-72-301 to -309, C.R.S. (2017)—that are predicated upon the absence of a constitutionally guaranteed right of access to criminal justice records.” Id. ¶¶ 9–10.

In state court, as with all other types of filings, post-trial records enjoy the presumption of openness codified at Conn. R. Super. Ct. § 42-49A applying to all “judicial documents,” defined as “any document filed that a court reasonably may rely on in support of its adjudicatory function.” State v. Komisarjevsky, 302 Conn. 162, 176, 25 A.3d 613, 622 (2011). See also State v. Patel, 174 Conn. App. 298, 324, 166 A.3d 727, 744 (2017) (finding that copies of trial exhibits were (presumptively public) judicial documents, and accordingly striking order barring media from access as procedurally insufficient under § 42-49A).

In Connecticut federal trial court, post-trial filings in criminal cases may be sealed “only if [the district court] makes particularized findings on the record demonstrating that sealing is essential to preserve compelling interests, and that sealing in whole or in part is narrowly tailored to serve those interests.”  D. Conn. Local. Crim. R. 57(b)(3)(B).

State appellate records are presumed available to the public. Conn. R. App. Ct. § 77-3. Even before this codification, Connecticut had recognized the presumptive openness of appellate records. See State v. Ross, 543 A.2d 284 (Conn. 1988) (recognizing right of access to a criminal trial transcript filed with the appellate court, as part of appellate court record).  As with superior court records, appellate records may only be sealed “only if the court concludes that such order is necessary to preserve an interest which is determined to override the public’s interest in viewing such document.”  Conn. R. App. P. 77-3(c).  An order to seal records may be made only after hearing, with notice to the public. Conn. R. App. Ct. § 77-4.

In both state and federal court, the First Amendment provides a strong presumption of public access to documents filed in criminal cases “that directly affect an adjudication;” these are referred to as “judicial documents.”  United States v. Amodeo, 71 F.3d 1044, 1049 (2d Cir. 1995).  Records of that type may be sealed only if “specific, on the record findings are made demonstrating that [sealing] is essential to preserve higher values and is narrowly tailored to serve that interest,” provided that the “right of access cannot be overcome by the conclusory assertion that publicity might deprive the defendant of the right to a fair trial.”  In re New York Times Co., 828 F.2d 110, 116 (2d Cir. 1987) (internal quotations and alterations omitted).

A D.C. district court has held that sentencing memoranda are subject to the common-law presumption of access and the First Amendment's qualified right of public access.  United States v. Harris, 204 F. Supp. 3d 10, 15 (D.D.C. 2016) (but allowing the sealing of the government’s addendum to its sentencing memorandum because of the government’s compelling interest in maintaining confidentiality of those assisting law enforcement).

The D.C. Circuit has held that certain sentencing documents are not public records. Wash. Legal Found. v. U.S. Sentencing Comm’n, 89 F3d 897 (D.C. Cir. 1996) (documents compiled by the U.S. Sentencing Commission's Advisory Working Group on Environmental Sanctions not public records). It upheld the Federal Youth Corrections Act, which provided that a minor’s conviction records be “automatically set aside” in certain circumstances, and requires that such records be physically removed from central criminal files, that they be placed in separate storage facilities, and that they not be disseminated to anyone, public or private, except law enforcement authorities conducting bona fide criminal investigations. Doe v. Webster, 606 F.2d 1226 (D.C. Cir. 1979).

In appropriate cases, the Court can withhold the identities of jurors post-verdict.  State v. Pennell, 583 A.2d 1348 (1990).

A district court in D.C. has recognized that “[t]he right of access is not limited to the criminal trial itself, but extends to many pre- and post-trial documents and proceedings.”  In re Special Proceedings, 842 F. Supp. 2d 232, 239 (D.D.C. 2012).  In In re Special Proceedings, for example, the court held that a post-trial, court-commissioned report on prosecutorial misconduct during the trial of Ted Stevens would be released to the public.  Similarly, in In re: The Reporters Committee for Freedom of the Press, 2015 WL 5297600 (D.D.C. Sept. 10, 2015), the District Court for D.C. concluded that certain sentencing-phase materials would remain under seal because releasing them would put law-enforcement officers, defendants, and their families in danger. Id. at *3.  Although neither decision discussed the factors from United States v. Hubbard, 650 F.2d 293 (D.C. Cir. 1980), both relied on similar considerations.

In a more recent case, a District Court in D.C. applied the Hubbard factors to determine whether video exhibits should be released in advance of sentencing in a criminal case tied to the January 6 attack on the Capitol. United States v. Puma, No. 21-0454, 2023 WL 2727755 (D.D.C. Mar. 31, 2023). The court ultimately granted the sixteen media organizations’ request for the videos because they depicted “matters of ‘deep national importance and public interest.’” Id. at *7 (quoting United States v. Jackson, No. 21-mj-115, 2021 WL 1026127 (D.D.C. Mar. 17, 2021)). In addition, given the fact that some videos were streamed on social media, there was already “some degree of public access” to the records. Id.

The public has a presumptive right of access to all court records. Barron v. Florida Freedom Newspapers, Inc., 531 So. 2d 113 (Fla. 1988). Florida courts have also found a presumptive public right of access to many post-trial records, including juror interviews, jury misconduct hearings, records of sentencing proceedings, and civil settlement agreements.

To justify closure of a criminal court record, including post-trial records, the Lewis test again governs.

Florida Criminal Procedure and Corrections Code Section 948.015 specifically addresses presentence investigation reports (PSI). Any circuit court of the state, when the defendant in a criminal case has been found guilty or has entered a plea of nolo contendere or guilty, may refer the case to the Department of Corrections for investigation and a sentencing recommendation. The Florida Department of Corrections prepares these reports for the purpose of aiding the judge in making a determination of a defendant’s sentence. A PSI typically includes a defendant’s prior criminal history, personal background, etc. The report includes a section for input from the victim of the crime, which provides the court with information regarding restitution for losses, damages and injuries to the victim, as well as a section on the victim’s recommendations as to the sentence. The victim has the right to request that the Assistant State Attorney permit the victim to review a copy of the PSI report prior to the sentencing hearing.

According to Rule 3.712 of the Florida Rules of Criminal Procedure, the presentence investigation report shall not be a public record and shall be available only to the following persons under the following stated conditions: (a) to the sentencing court to assist it in determining an appropriate sentence; (b) to persons or agencies having a legitimate professional interest in the information that it would contain; (c) to reviewing courts if relevant to an issue on which an appeal has been taken. (d) to the parties as rule 3.713 provides. Fla. R. Crim. P. 3.713 provides that the trial judge may disclose to both parties the contents of the presentence investigation prior to sentencing.

Rule 21 of the Uniform Superior Court Rules provides that: “all court records are public and are to be available for public inspection unless public access is limited by law or by the procedure set forth below.” This includes post-trial records.

Pre-sentence investigation reports are exempt from public disclosure.  I.C.A.R. 32(g)(2).  Idaho Courts Administrative Rule 32 does not expressly mention any other post-trial motions or records.

In 1995, an Illinois appellate court echoed a Seventh Circuit decision that there is no public right of access to presentence reports and expanded on that rule holding that there is no public right of access to pre-trial service agency reports. Copley Press, Inc. v. Admin. Office of Courts, 271 Ill. App. 3d 548, 555, 648 N.E.2d 324, 329 207 Ill. Dec. 868, 873 (Ill. App. Ct. 2nd Dist. 1995) (citing United States v. Corbitt, 879 F.2d 224 (7th Cir. 1989)).An Illinois circuit court held that there is a right of public access to post-conviction petitions, motions, and amendments thereto that are pleadings in connection with and filed as part of the public record. Caffey, 33 Media L. Rep. (BNA) at 1149. Neither the Illinois appellate nor Supreme Court have addressed this issue.

Post-trial records are open to public access unless Administrative Rule 9(G) excludes them. Ind. Admin. Rule 9(D)(1).

Presentence reports or memoranda submitted to the court for sentencing are generally confidential. Ind. Code § 35-38-1-13(a). However, persons or entities connected with the case may have access. Ind. Code § 35-38-1-13(b).

Expungement records are governed by Indiana Code sections 35-38-9-1-et seq. All documents in expungement cases become confidential when the court grants the petition to expunge. Ind. Code § 35-38-9-10(i). However, until the court grants the petition, documents filed in the case are not confidential. Id.  Even after an expungement order is granted, however, public records relating to the arrest, conviction, or sentence remain public, although the records must be “clearly and visibly marked or identified as being expunged.” Ind. Code § 35-38-9-7(b).

There are special provisions relating to a person who has been arrested, charged, or alleged to be a delinquent child if the allegation either did not result in a conviction or juvenile adjudication or the adjudication was vacated, and the person is not participating in a pretrial diversion program. Ind. Code § 35-38-9-1(a). If an order granting expungement is granted in these circumstances, the information and records regarding the allegations are sealed or redacted. Ind. Code § 35-38-9-9(f).

Court records related to violations of post-conviction supervision are excluded from public access when the request to exclude is filed contemporaneously with the notice of violation and the request for an arrest warrant. Ind. Admin. Rule 9(G)(2)(m). Additionally, “[w]hen probable cause to justify issuance of an arrest warrant has been established, the Case Records shall be publicly accessible unless the judge determines that the facts presented in the request for exclusion for Public Access support a reasonable belief that public disclosure will increase the risk of flight by the defendant, create an undue risk of harm to the community or a law enforcement officer, or jeopardize an on-going criminal investigation.” Id. 9(G)(2)(m)(i). An order excluding public access under Administrative Rule 9(G)(2)(m) expires when the defendant is arrested.

The Indiana Department of Correction maintains a searchable offender registry at http://www.in.gov/apps/indcorrection/ofs/ofs. Prison, parole, and probation reports fall under the open access rule. See Smith v. State, 873 N.E.2d 197, 200–01 (Ind. Ct. App. 2007) (citing Indiana Code Section 5-14-3-3 as governing an inmate’s right to receive a copy of prison records showing budget allocation towards prisoner meals, subject to a statutory fee).

Generally, court records filed in the office of the clerk of court are public records open to inspection under Iowa Code Chapter 22. In Iowa, “[e]very person shall have the right to examine and copy a public record and to publish or otherwise disseminate a public record or the information contained in a public record.” Iowa Code § 22.2 (2018).

Post-trial records are subject to a presumption of openness that the Kansas Supreme Court established in Kansas City Star Co. v. Fossey, 630 P.2d 1176 (1981).  The state supreme court said the presumption extends “‘to every phase of judicial proceedings in a criminal case.’” Fossey, 630 P.2d at 1182 (quoting The American Bar Association Standards Relating to the Administration of Criminal Justice: Fair Trial and Free Press § 8-3.2 (2d ed. 1978)).

However, the presumption may be overcome by specific statutory exemptions, such as K.S.A. 22-3711, which exempts various kinds of correctional documents from disclosure, including records of “supervision history” of inmates.  The exemption provides that the presentence report, the preparole report, the pre-postrelease supervision report and the supervision history, obtained in the discharge of official duty by any member or employee of the prisoner review board or any other employee of the department of corrections, shall be privileged and shall not be disclosed directly or indirectly to anyone other than the prisoner review board, the judge, the attorney general or others entitled to receive the information, except that the board, secretary of corrections or court may permit the inspection of the report or parts of it by the defendant, inmate, defendant’s or inmate’s attorney or other person having a proper interest in it, whenever the best interest or welfare of a particular defendant or inmate makes the action desirable or helpful.

In Wichita Eagle and Beacon Publ’g Co., Inc. v. Simmons, 50 P.3d 66 (Kan. 2002), the scope of K.S.A. 22-3711 was at issue.  In Simmons, the newspaper requested records that included:

"(1) documents which identify by name all inmates, parolees and/or others supervised by the Department of Corrections who have been charged with murder or manslaughter during 1996, 1997, 1998, and 1999;

(2) documents containing details regarding the crimes of which these individuals have been accused;

(3) minutes of the meetings of any serious incident review board in which the crimes or alleged crimes of these individuals are discussed; and,

(4) notes, decisions, reports, and/or documents reflecting decisions or actions taken by any of the serious incident review boards which have considered the above-referenced crimes and parolees."

Simmons, 50 P.3d at 79.

The Department of Corrections claimed that some of the requested records were exempt from disclosure, and the newspaper filed a mandamus action to compel the Secretary of Corrections to provide access to them.  The Kansas Supreme Court considered the extent to which the exemption, in K.S.A. 22-3711, for records of “supervision history” was in conflict with a disclosure provision in the Kansas Open Records Act (KORA), K.S.A. 45-221(a)(29), which "mandates that a releasee’s 'name; photograph and other identifying information; sentence data; parole eligibility date; custody or supervision level; disciplinary record; supervision violations; conditions of supervision ...; location of facility where incarcerated or location of parole office maintaining supervision and address ... shall be subject to disclosure.'"  Simmons, 50 P.3d at 83.

The Kanas Supreme Court found that the KORA disclosure provision, K.S.A. 45-221(1)(29), was not in conflict with the exemption for correctional records in K.S.A. 22-3711.  The state supreme court said the exemption “restricts disclosure of the supervising parole officer’s personal observations, sensitive personal information about the offender and third parties, contacts, conversations, observations, investigations, and interventions concerning a particular offender.”  Simmons, 50 P.3d at 83.  Also exempt is “information concerning parole requirements for mental health or substance abuse counseling is not subject to disclosure.  Simmons, 50 P.3d at 83.  However, a record of “pending criminal charges filed against a supervised individual is subject to disclosure.” Simmons, 50 P.3d at 83.

The Kansas Supreme Court also considered the scope of a KORA provision that exempts public agencies from disclosing:

"Notes, preliminary drafts, research data in the process of analysis, unfunded grant proposals, memoranda, recommendations or other records in which opinions are expressed or policies or actions are proposed, except that this exemption shall not apply when such records are publicly cited or identified in an open meeting or in an agenda of an open meeting."

K.S.A. 45-221(a)(20).

The Kansas Supreme Court said that the exemption did not apply to the newspaper’s request for “access to minutes of the meetings of serious incident review boards discussing the crimes or alleged crimes of supervised individuals and records reflecting decisions or actions taken by any of the serious incident review boards in regard to murders and manslaughters committed by parolees from 1996 through 1999.”  Simmons, 50 P.3d at 83.  The supreme court explained that the newspaper specifically had not sought records of proposed policies or actions, which were exempt under K.S.A. 45-221(a)(20), but rather had requested “records reflecting decisions or actions already taken by the serious incident review boards.”  The supreme court stressed that the exemption “does not extend to records on policies currently in place or actions already taken.”  Simmons, 50 P.3d at 83.

All criminal court records are presumptively open to the public.  Courier-Journal & Louisville Times Co. v. Peers, 747 S.W.2d 125 (Ky. 1988); see also Fiorella v. Paxton Media Grp., LLC, 424 S.W.3d 433, 439 (Ky. Ct. App. 2014) (“presumption of openness” applies to “everything filed with the courts”).

There should be no different standards for access to post-trial records trial than for access to trial and pre-trial records. See “Pretrial motions and records” section above. Typically, such records are obtained simply by going to the clerk’s office (or the judge’s chambers) and asking for the record.

The Supreme Judicial Court established a high standard for disclosure of a pre-sentence report (“PSI”) in Halacy v. Steen, 670 A.2d 1371, 1375 (Me. 1996), a civil case for assault, battery, and other torts in which the plaintiff sought in discovery access to the defendant’s PSI on the grounds that it might “lead to the discovery of admissible evidence with respect to [defendant’s] general mental processes and impressions of the incident.” Id. at 1373.

The decision to release a PSI is committed to the sound discretion of the court. On motion of the party seeking discovery, the court should balance the desirability of publication against the need for confidentiality and should review the presentence report carefully in camera to determine whether the report contains crucial information the party seeking PSI cannot obtain elsewhere. Neither the fact that the report contains relevant information nor the fact that the report provides the most accessible means of obtaining the information is sufficient to warrant its disclosure.

Id. at 1375. Even upon a showing of a “compelling and particularized need” for a PSI, the trial court must “insure that disclosure is not otherwise precluded by statute or judicial rule.” Id. If the PSI contains information made confidential or privileged by operation of law or court rule, that portion of the PSI must remain confidential. Id.

Even when the court determines that disclosure of a PSI is warranted and that the materials sought are not otherwise protected, “the court in its order authorizing disclosure should specify appropriate procedures and conditions.” Id. “The terms of release should limit access to the PSI to insure that the disclosed material is no more widely broadcast than is absolutely necessary.” Id.

The First Circuit—to which Maine courts generally adhere absent local cases, Littlefield v. Dep’t of Human Servs., 480 A.2d 731, 737 (Me. 1984) (stating that Maine courts will generally follow First Circuit decisions on federal law “so far as reasonably possible” in the interests of “harmonious federal-state relationships”)—has held that memoranda prepared by third parties to inform a judge’s sentencing decisions should be public. Kravetz, 706 F.3d at 56–57. Public access in this context may serve to “check any temptation that might be felt by either the prosecutor or the court . . . to seek or impose an arbitrary or disproportionate sentence,” promote accurate fact-finding, and in general stimulate public confidence in the criminal justice system by permitting members of the public to observe that the defendant is justly sentenced. Id. Whether the court actually relied on such memoranda in coming to its sentencing decision is of no import. Id. at 59.

There is a First Amendment right of access to presentence reports entered into evidence. Baltimore Sun v. Thanos, 607 A.2d 565 (Md. Ct. Spec. App. 1992). Yet, presentence reports not entered into evidence are presumptively confidential under the Maryland Rules. Md. Rule 16-907(g)(5); see Md. Code Ann., Corr. Servs., § 6-112(a)(2); see also Thanos, 607 A.2d at 568 n.4 (“It is, we believe, extremely doubtful that there is any First Amendment right of access to Maryland presentence reports absent their entry into evidence.”). Thus, in order to gain access to such reports, the press must show a “special and compelling” reason that overcomes the state interests in the confidentiality of such records.

Because there is a general presumption of openness to postverdict proceedings, see Globe Newspaper Co. v. Commonwealth, 556 N.E.2d 356, 360 (Mass. 1990) (citing CBS, Inc. v. U.S. Dist. Ct., 765 F.2d 823, 825 (9th Cir.1985)), Massachusetts would likely recognize a similar right of access to corresponding records. Where the Supreme Court and Massachusetts courts have not yet determined whether a right of access to a certain type of record exists, Massachusetts courts make this determination by considering the type of proceeding associated with the records; if there is a right of access to the proceeding, then the court will likely afford the same access to the records. See, e.g., Newspapers of New England, Inc. v. Clerk-Magistrate, 531 N.E.2d 1261, 1265 (Mass. 1988) (citing Press–Enterprise II, 478 U.S. 1, 8 (1986); Press–Enterprise I, 464 U.S. 501, 513 (1984)).

At the conclusion of proceedings, courthouse records become public records, and they are not withheld from the public unless good cause is shown. Booth Newspapers, Inc. v. Midland Circuit Judge, 145 Mich. App. 396, 403 (1985). Michigan Court Rules have codified this court’s ruling in M.C.R. 8.119(I)(2). Courts balance the interests of the public with the interests of the parties when determining what constitutes good cause. Id.

Though Minnesota courts have not specifically addressed whether the public has a constitutional right of access to post-trial records, the Minnesota Supreme Court has adopted the Rules of Public Access to Records of the Judicial Branch, which provide that as a general policy, the “[r]ecords of all courts and court administrators … are presumed to be open to any member of the public for inspection or copying at all times during the regular office hours.” Minn. R. Pub. Access Rec’ds. Jud. Br. 2; see also State v. C.P.H., 707 N.W.2d 699, 704 (Minn. Ct. App. 2006) (holding that “the public generally is entitled to access judicial records.”). “Records” are defined as “any recorded information that is collected, created, received, maintained or disseminated by a court or court administrator.” Id. 3, subd. 5. Rules 7 and 8 dictate the procedure for requesting access, which is straightforward and does not require the payment of a fee unless otherwise established by statute; however, when copies are requested, the custodian may charge a copy fee. Id. 8; subd. 6.

Unless the court seals the record, all post-trial records are open to the public.

Presentence investigation reports, which may include psychiatric examinations and victim statements, are privileged and shall not be disclosed to anyone except a judge, probation officials, and others entitled by law to receive such information. Neb. Rev. Stat. § 29-2261 (Reissue 2016). However, in State v. Cribbs, 237 Neb. 947, 469 N.W.2d 108 (1991), the court held that a murder victim’s relatives had a common law right of access to psychiatric treatment reports received in evidence at an annual review hearing for a defendant found not guilty by reason of insanity.

Criminal post-trial records are constitutionally open to the public unless sealed. Pursuant to NRS Chapter 179, a person may petition the court to seal post-criminal trial records.

Post-trial records are subject to the right of access discussed in “Overcoming a presumption of openness” above. See also State v. Kibby, 170 N.H. 255 (2017) (after defendant pled guilty to seven indictments, presumption of openness applied to the record, all pleadings filed, and all orders issued involving the defendant’s correspondence with the court and his counsel motion to withdraw, including the correspondence itself).

The New Mexico courts have not specifically ruled on this issue. However, Rule 5-123 NMRA states that “court records are subject to public access unless sealed by order of the court,” and defines “court record” 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.”  Rule 5-123(B) NMRA. This definition, comprising post-trial records, indicates that they are likewise subject to public access.

Though, generally speaking, post-trial records are subject to the same presumptions of public access as post-trial proceedings themselves, there are key exceptions.  For example, though sentencing proceedings are generally open to the public, pre-sentence reports and memoranda are initially subject to a presumption of confidentiality by statute.  See N.Y. Crim. Proc. Law § 390.50 (confidentiality of pre-sentence reports and memoranda).  However, once those documents become part of the trial record, they are subject to the First Amendment presumptive right of access.  See, e.g., People v. Private Sanitation Indus. Ass'n of Nassau/Suffolk, Inc., 136 Misc. 2d 612, 617, 519 N.Y.S.2d 106, 110 (Suffolk Cty, Co. Ct. 1987) (“Once the information [in pre-sentence reports and memoranda] is used at trial or pre-sentence proceedings, it becomes subject to First Amendment rights.”).

Certain criminal records, as set forth above, may not be accessed by the media or the public, pursuant to Rule 41.

The Rules of Superintendence for the Courts of Ohio define “case document” as “a document and information in a document submitted to a court or filed with a clerk of court in a judicial action or proceeding, including exhibits, pleadings, motions, orders, and judgments . . .,” subject to certain exclusions.  Sup. R. 44(C)(1)–(C)(2).  These documents are presumptively open to the public.  Sup.R. 45(A).  The court shall restrict public access to these documents only if it finds by clear and convincing evidence that “the presumption of allowing public access is outweighed by a higher interest.”  Sup.R. 45(E)(2). 

Pre-sentence reports are not public records.  See State ex rel. MADD v. Gosser, 485 N.E.2d 706, 709 n.2 (Ohio 1985); In re Special Grand Jury Investigation Concerning Organic Tech., 656 N.E.2d 329, 331 (Ohio 1995).  Records related to probation and parole proceedings are not public records.  State ex rel. Hadlock v. Polito, 600 N.E.2d 709, 710 (Ohio Ct. App. 1991).  Victim’s statements are public records subject to disclosure.  Sheely v. Norris, No. 92-P-0027, 1993 WL 512849, at *3 (Ohio Ct. App. Oct. 7, 1993); Pinkava v. Corrigan, 581 N.E.2d 1181, 1182 (Ohio 1990).

The Superior Court of Pennsylvania has recognized that the federal courts hold “that the public, and consequently the press, have a qualified First Amendment right of access to sentencing proceedings,” and Pennsylvania follows this holding. Commonwealth v. Martinez, 917 A.2d 856, 861 n.9 (Pa. Super. 2007). Thus, the court held that “[g]iven the open nature of criminal trials, and sentencing proceedings in particular, we find that letters submitted to a sentencing court by defense counsel at the time of sentencing, which the sentencing court explicitly reviews in preparation for sentencing, are public judicial documents regardless of whether the sentencing court formally dockets the letters.” Id. at 861-62; see also Commonwealth v. Dominick, 40 Pa. D. & C. 5th 347, 350-52 (Lackawanna Cty. C.C.P. Sept. 3, 2014) (citing Martinez for the proposition that letters to a sentencing court are public judicial documents even if not docketed).

The Rhode Island Supreme Court has not directly addressed the question of access to court records post-trial.  In the absence of local case law, Rhode Island courts typically look to federal case law on the same topics, particularly emphasizing cases from the U.S. District Court of the District of Rhode Island and the First Circuit Court of Appeals.  In Globe Newspaper Co. v. Pokaski, the First Circuit held that the media had a qualified First Amendment right of access to records in closed criminal cases where the defendant had been adjudicated not guilty, but not to records in cases where the grand jury had failed to indict.  See 868 F.2d 497, 509 (1st Cir. 1989).  The First Circuit reasoned that, “in contrast to criminal trials, ‘grand jury proceedings have traditionally been closed to the public,’” and the “public has no right to attend grand jury proceedings.”  See Globe Newspaper, 868 F.2d at 509 (quoting Press-Enterprise Co. v. Superior Court, 478 U.S. 1, 10 (1986)).

In United States v. Kravetz, the First Circuit concluded that the public availability of sentencing memoranda and sentencing-related letters sent by third-parties directly to the district court are “judicial documents subject to the common law presumption of public access[,]” but reserved judgment as to whether a constitutional right of access attaches to those documents. 706 F.3d 47, 53, 57 (1st Cir. 2013).

As set forth above, both the South Carolina Constitution and statutes provide a presumptive right of public access to court records. This rule applies to post-trial records in the criminal context. Ex parte Greenville News, 462 S.E.2d 165 (S.C. 1997).

Founded in common law and the First Amendment to the United States Constitution, the “The Tennessee Supreme Court has recognized a qualified right of the public, founded in the common law and the First Amendment to the United States Constitution to attend judicial proceedings and to examine the documents generated in those proceedings.”  Knoxville News-Sentinel v. Huskey, 982 S.W.2d 359, 362 (Tenn. Crim. App. 1998) (citing Ballard v. Herzke, 924 S.W.2d 652, 661 (Tenn. 1996);

The Tennessee Supreme Court has explained that that the legal principles outlined in Waller v. Georgia, 467 U.S. 39 (1984) and Press-Enterprise Co. v. Superior Court, 464 U.S. 501 (1984), apply “in Tennessee when a closure or other restrictive order is sought” in a criminal case.  State v. Drake, 701 S.W.2d 604, 607-08 (Tenn. 1985).  The Court quoted Waller and explained that:

The presumption of openness may be overcome only by an overriding interest based on findings that closure is essential to preserve higher values and is narrowly tailored to serve that interest.  The interest is to be articulated with findings specific enough that a reviewing court can determine whether the closure order was properly entered.

Id. at 607 (quoting Waller, 467 U.S. at 45).  The Tennessee Criminal Court of Appeal has held that Drake applies “[w]hen a trial court issues a restrictive order denying the public access to judicial proceedings or documents.”   State v. Cobbins, No. E2013-02726-CCA-WR-CO, at *14 (Tenn. Crim. App. Feb. 4, 2015); see also State v. Koulis, No. I-CD111479, at 1-2 (Tenn. Crim. Ct. June 5, 2006) (slip opinion) (Rule 9 appeal denied July 28, 2006) (applying Drake to decide sealed court record issue in criminal case).

In the criminal context, the public’s right of access to court records “must be balanced against other interests such as a criminal defendant’s right to a fair trial.”  Huskey, 982 S.W.2d at 362-63 (citing Drake, 701 S.W. 2d at 607).  In this balancing process, “any restriction on public access must be narrowly tailored to accommodate the competing interest without unduly impeding the flow of information.”  Id. (citing Drake, 701 S.W.2d at 607).

In a 2015 unpublished opinion, the Tennessee Court of Criminal Appeals took a more narrow view of the right of access to court records related to a post-trial request for a new trial.  In State v. Cobbins, the parents of the victim sought access to sealed court records that were part of the defendant’s request for a new trial.  No. E2013-02726-CCA-WR-CO, at *5 (Tenn. Crim. App. Feb. 4, 2015). Specifically, the parents sought access to an unredacted Tennessee Bureau of Investigation file “on its investigation into the misconduct of the original trial judge” in the case.  Id. at *2-3.  The entire file was provided to the court “so that [it] could determine whether it contained potentially exculpatory information to which the defendants would be entitled under Brady v. Maryland, 373 U.S. 83 (1963).”  Id. at *2.  The trial court entered both a redacted and unredacted version of the TBI file as exhibits in each of the defendants’ cases.  Id. at *3.  The trial court explained that the redacted version was the one that it relied upon in deciding the motions for new trial and that the redactions it made were “because the information contained in there has no business being in the public domain and is not relevant at all to any of the issues that are pertinent to this case.”  Id. at *3-4.

The Court of Criminal Appeals held that there was no First Amendment right of access “to irrelevant and extraneous documents or materials that may be unearthed by the parties in a criminal proceeding and upon which the trial court or the trier of fact do not rely in determining a party’s rights.”  Id. at *15.  The court in Cobbins similarly held that filed materials that were not considered by the judge in making a ruling were not subject to the common law right of access to judicial records.  Id. at *16-17.

Nothing limits the application of the general presumption of access to criminal post-trial motions or other similar records filed with the court.

The general presumption in favor of the right of public access presumably applies equally to post-trial records in criminal proceedings.  See Tillotson v. Van Nederveen Meerkerk, 2015 UT App 142, ¶ 6, 353 P.3d 165 (“‘[C]ourt records are public unless otherwise classified by [] rule.’” (quoting Utah Code Jud. Admin. 4-202.02(1)).

The Vermont Supreme Court has held that “a presumption of openness prevails and that documents submitted by the parties in sentencing hearings are subject to a qualified right of inspection by the public.”  State v. Densmore, 160 Vt. 131, 136, 624 A.2d 1138, 1141 (Vt. 1993) (noting that “[p]ublic access to sentencing hearings, and to documents filed in connection therewith, plays an important role in the sentencing process”). This right is not absolute, however, and access may be denied if a three-part test is satisfied: “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.”  Id. at 138, 624 A.2d at 1142.

Moreover, the Vermont Rules for Public Access to Court Records contain an exception to the general right of public access for “[a] presentence investigation report as provided in Chapter 5 of Title 28 and Rule 32(c) of the Vermont Rules of Criminal Procedure.”  Vt. Pub. Acc. Ct. Rec. Rule 6(b)(6); see also 28 V.S.A. § 204(d)-(f); State v. LaBounty, 702 A.2d 82, 86, 167 Vt. 25, 31-32 (Vt. 1997) (holding no First Amendment right of access attaches to pre-sentence investigation reports prepared for use in state sentencing hearings).  There are no other exceptions in the Vermont Rules for Public Access to Court Records regarding post-trial records, thus other post-trial records are presumptively open to the public.

Vermont Rule of Criminal Procedure 53.1 also provides that “[v]ideo recordings of public proceedings are public records, unless otherwise protected from disclosure by law or by order of the court. Duplicated copies may be ordered at the conclusion of a trial, or at any time by a party.”  V.R.Cr.P. Rule 53.1(f).

Pre-sentencing reports are confidential. See Va. Code § 19.2-299; Doe v. Paradigm Mgmt. Co., 69 Va. Cir. 446, 2006 WL 147592 (Arlington Cir. Ct. Jan. 20, 2006).

The Virginia Supreme Court has recognized the public’s presumptive right of access to judicial proceedings and judicial records generally. See generally, Shenandoah Pub. House, Inc. v. Fanning, 235 Va. 253, 368 S.E.2d 253 (1988); Richmond Newspapers, Inc. v. Commonwealth, 222 Va. 574, 281 S.E.2d 915 (1981).  It follows that the right of access extends to post-trial proceedings and records, and the Virginia Supreme Court has suggested as much. See Globe Newspaper Co. v. Commonwealth, 264 Va. 622, 628–29, 570 S.E.2d 809, 812 (2002) (observing in dicta that the public had not been denied access to post-trial proceedings).

The public’s right of access to court proceedings includes the right of access to case records, and any limitations are subject to the five-factor Bone-Club/Ishikawa test.  Dreiling v. Jain, 151 Wn.2d 900, 915, 93 P.3d 861, 870 (2004).

As set forth above, both the West Virginia Constitution and statutes provide a presumptive right of public access to court records.  See “Access to criminal court records/In general” above.  This rule applies to post-trial records in the criminal context. State ex rel. Garden State Newspapers v. Hoke, 205 W. Va. 611, 616, 621, 520 S.E.2d 186, 191, 196 (1999).

Post-trial records, except for presentence reports, are open to the public under the constitutional right of access.