H. Post-trial records
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.)
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)).
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).
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).
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. 11-1, 13-1; E.D. Wis. Local Crim. R. 32; W.D. Wis. Admin. Order No. 311 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).
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.
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."
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.
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.
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 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).