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I. Appellate records

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  • 2nd Circuit

    The U.S. Supreme Court has not squarely addressed the issue, and there is no Second Circuit case directly on point.

    However, the reasoning underlying the right to access in trial courts applies to appellate proceedings as well.  See, e.g. Huminski v. Corsones, 396 F.3d 53, 82 (2d Cir. 2005) (discussing the right of access); Westmoreland v. Columbia Broad. Sys., 752 F.2d 16, 23 (2d Cir. 1984) (reviewing the caselaw with the introductory comment, “There is, to be sure, an abundance of support in the cases for a constitutionally grounded public right of access to the courtroom.”).

    Outside the Second Circuit, the Nevada Supreme Court noted that “secret supreme court proceedings violate statutory and common law … [as well as] the Constitution of the United States.” Whitehead v. Comm’n on Jud. Discipline, 893 P.2d 866, 992 (Nev. 1995), superseded on other grounds. The court rejected the idea that “appellate proceedings, either civil or criminal, have been excluded from [the] tradition” of openness, finding that, “[i]t appears that, at least since 1267, all judicial proceedings have been presumptively open.” Id. at 993 (emphasis in original). Similarly, in In re Krynicki, 983 F.2d 74, 75 (7th Cir. 1992), the Seventh Circuit ruled that parties on appeal “must file public briefs” because “[j]udicial proceedings in the United States are open to the public—in criminal cases by constitutional command, and in civil cases by force of tradition.” And in United States v. Moussaoui, 65 Fed. App’x 881, 890 (4th Cir. 2003), the court noted that “the First Amendment guarantees a right of access by the public to oral arguments in the appellate proceedings of this court. Such hearings have historically been open to the public, and the very considerations that counsel in favor of openness of criminal trial support a similar degree of openness in appellate proceedings.”

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  • 4th Circuit

    The public’s First Amendment right of access extends to appellate proceedings, 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 Washington 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.

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  • 7th Circuit

    “Secrecy is fine at the discovery stage, before the material enters the judicial record,” but since documents that “influence or underpin the judicial decision are open to public inspection unless they meet the definition of trade secrets or other categories of bona fide long-term confidentiality,” any “[i]nformation transmitted to the court of appeals is presumptively public because the appellate record normally is vital to the case's outcome.”  United States v. Foster, 564 F.3d 852, 853 (7th Cir. 2009) (Easterbrook, J., in chambers) (quoting Baxter International, Inc. v. Abbott Laboratories, 297 F.3d 544, 545-46 (7th Cir. 2002)).  Any claim of secrecy on appeal is reviewed independently by the Seventh Circuit.  Id.  See Sections I.C. and VI.G. (discussing Seventh Cir. Operating Procedure 10).

    The constitutional right of access to criminal proceedings extends to appellate briefs; parties “must file public briefs but may add sealed supplements if necessary to discuss in detail materials that they are legally required to keep confidential” (i.e., material that must be kept secret under Fed. R. Crim. P. 6(e)).  In re Krynicki, 983 F.2d 74, 75 (7th Cir. 1992) (Easterbrook, J., in chambers).  Compare A Sealed Case, 890 F.2d 15 (7th Cir. 1989) (in collateral dispute over whether law firm would be allowed to withdraw, mandamus proceedings were “conducted under seal to prevent the disclosure of confidences”; however, opinion was published “to facilitate public scrutiny of our processes.”  Krynicki, 983 F.2d at 75).

    In affirming denial of defendant’s motion for access to classified documents submitted by government in support of its warrant applications pursuant to Foreign Intelligence Surveillance Act (FISA), the Seventh Circuit reviewed the materials in camera, determined that the investigation did not violate FISA, and issued “a classified opinion explaining (as we are forbidden to do in a public document) these conclusions, and why therefore a remand to the district court is neither necessary nor appropriate.”  United States v. Daoud, 755 F.3d 479, 485 (7th Cir. 2014).

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  • 8th Circuit

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

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  • Alabama

    We know of no statutory or case law authority relating specifically to public access to appellate records in general. Rule 52 of the Alabama Rules of Appellate Procedure, however, states that in any case involving (1) a juvenile who has been the subject of a proceeding in the juvenile court system, (2) a person granted youthful offender status, (3) a victim of child abuse, or (4) a victim of a sex offense, “the records and papers in the appellate court in any such proceeding shall be open for inspection only to counsel of record, and, upon order of the appellate court, to others having a proper interest therein.” Ala. R. App. P. 52.

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  • Arizona

    No published decisions.

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  • California

    California Rules of Court, Rules 8.45 through 8.47, apply to attempts to seal records in the appellate courts. The standard is the same as for trial court records.

    If the record was sealed in the trial court, it remains sealed unless the appellate court orders otherwise. If the record was not submitted to the trial court, the party offering it must file a motion to seal. In McNair v. Nat’l Collegiate Athletic Ass’n, 234 Cal. App. 4th 25, 29, 183 Cal. Rptr. 3d 490 (2015), the Court of Appeal applied the NBC Subsidiary four-factor test to pre-trial papers lodged as part of the appellate record, and denied a request to seal. Id. at 39.

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  • Colorado

    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 (pdf) generally permits public access to court records, subject to certain exceptions.  (Section 4.10; Section 4.60.)

    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.

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  • District of Columbia

    We are not aware of any published decisions concerning access to appellate records.  That issue, however, is likely governed by the D.C. Circuit Court of Appeals decision in United States v. Hubbard, 650 F.2d 293 (D.C. Cir. 1980) (discussing pre-trial records).  The D.C. Circuit established six factors in determining public and press access to sealed documents: (1) the need for public access to the documents at issue; (2) the extent to which the public had access to the documents prior to the sealing order; (3) the fact that a party has objected to disclosure and the identity of that party; (4) the strength of the property and privacy interests asserted; (5) the possibility of prejudice to those opposing disclosure; and (6) the purposes for which the documents were introduced.  Id. at 317-22.

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  • Florida

    As with other court records, appellate court records are also presumptively open. Barron v. Florida Freedom Newspapers, Inc., 531 So. 2d 113, 118 (Fla. 1988). Florida Rule of Judicial Administration 2.420(f) and (g) address requests to determine the confidentiality of appellate court records in criminal cases. The Rule does not require a hearing, but does require an expeditious ruling on a motion. A request to unseal appellate court records must be made in a written motion filed in the appellate court.

    In the case of appellate criminal court records, the test in Miami Herald Publishing Co. v. Lewis, 426 So. 2d 1, 6 (Fla. 1983), should apply. To justify closure, the proponent of closure must overcome the presumption of openness and show that (1) closure is necessary to prevent a serious and imminent threat to the administration of justice; (2) no alternatives are available, other than change of venue, which would protect a defendant’s right to a fair trial; and (3) closure would be effective in protecting the rights of the accused, without being broader than necessary to accomplish this purpose. Requests for closure of appellate court records are rare.

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  • Georgia

    Appellate records, like all other court records in Georgia, are presumptively open to the public. The Georgia Supreme Court and Court of Appeals make their dockets freely available online but typically limit to parties and their counsel the online availability of briefs and the record.

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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 such cases, the rule provides that “in any criminal or post-conviction case where a documentary exhibit, including a pre-sentence report, is transmitted to the Supreme Court for use in an appellate proceeding, the district court shall serve a copy of the documentary exhibit on the attorney general and on appellate counsel for the defendant, subject to the confidentiality provisions of I.C.A.R. 32.”  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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  • Indiana

    Appellate records are open to public access unless Administrative Rule 9(G) excludes them. Ind. Admin. Rule 9(D)(1). Indiana uses the Odyssey case management system, which allows the public to search cases by case numbers, party names, or attorneys: https://public.courts.in.gov/mycase/#/vw/Search.

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  • Iowa

    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).

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  • Kansas

    Kansas appellate cases and opinions are available through the Kansas Judicial Branch website.  See Cases and Opinions, Kansas Judicial Branch http://www.kscourts.org/Cases-and-Opinions/default.asp. Records associated with cases are available from the Clerk of Appellate Courts, http://www.kscourts.org/appellate-clerk.

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  • Kentucky

    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”).  Criminal and civil appellate dockets are publicly available at https://courts.ky.gov/Pages/legal.aspx.

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  • Louisiana

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

    Supreme Court Rule V, § 5, addresses sealed documents: “When a Motion to Seal is filed, the motion and the documents, subject of motion, will be filed under seal and will remain under seal until the court takes action on the motion. If the motion is granted, the order will become public and the motion and documents will remain under seal. If the motion is denied, the motion and documents will be available to the public unless the court order allows the filing party to retrieve the motion and documents. Motions and documents filed under seal will only be viewable by authorized court personnel unless otherwise indicated in the order to seal.”

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  • Maine

    By amendments effective July 1, 2010, the Maine Supreme Judicial Court enacted a new Rule 12B of the Maine Rules of Appellate Procedure, entitled “Public Access to Proceedings and Records.” The Rule governs access to the record on appeal, the file maintained by the clerk, briefs, appendices to the briefs, oral argument and decisions, as follows:

    Record on Appeal. The record on appeal in each case, or any portion of the record on appeal, shall be available for inspection and copying by any person to the same extent as that record was available for inspection and copying in the trial court.

    Law Court File. The file maintained by the Clerk of the Law Court for each appeal, other than files for appeals from child protection proceedings and other files made confidential by statute, shall be available for public inspection and copying, except that any documents or images that were transmitted to the Law Court by the trial court under seal and any documents providing identifying information regarding parties, witnesses, or jurors shall be available for inspection and copying only to the same extent as in the trial court.

    Briefs. The briefs filed with the Law Court, other than briefs in appeals from child protection proceedings, shall be available for inspection and copying by any person.

    Appendices. The appendix shall be available for public inspection and copying, except that the appendix shall not be available for public inspection and copying in the following matters: (1) an appeal from a child protection proceeding; (2) proceedings involving an adoption or guardianship or a petition for adoption or guardianship; (3) juvenile proceedings in which the record is sealed in the trial court; (4) any proceeding in which the care, custody, and support of a minor child is an issue; and (5) any proceeding in which a document that is confidential by statute or was filed under seal in the trial court is contained in the appendix.

    No appendix shall be filed as “under seal” or “confidential” except on order of the Chief Justice or other Justice designated to act for the Chief Justice pursuant to Rule 10(a)(4).

    Oral Arguments. Oral arguments on the merits of appeals are public proceedings.

    Decisions. Opinions of the Law Court on appeals and decisions of single justices of the Law Court are public documents.

    See M.R.App.P. 12B.  The Rules were restyled in 2017, but the Court made only minor changes to Rule 12B for clarification; no substantive changes were made.

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  • Maryland

    There are no judicial decisions, rules, or statutes related specifically to access to criminal appellate records. But see Md. Rule 8-123 (records relating to grand jury proceedings subject to appeals “shall be open to inspection only by the Court, authorized court personnel, and attorneys for the State”).

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  • Minnesota

    The Minnesota Court of Appeals has recognized that the public “generally is entitled to access judicial records,” including appellate records. See State v. C.P.H., 707 N.W.2d 699, 704–05 (Minn. Ct. App. 2006). Under the Rules of Public Access to Records of the Judicial Branch, however, the records of appellate proceedings in juvenile courts generally are not open to the public “unless otherwise provided by rule or order of the appellate court.” Minn. R. Pub. Access Rec’ds. Jud. Br. 4, subd. 1(d).

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  • Montana

    All appellate records are open to the public.

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  • Nebraska

    Information required by statute to be confidential remains confidential when included in an appellate record. Neb. Ct. R. App. Prac. § 2-109(D) provides:

    (D) Contents of Briefs. BRIEFS FILED WITH THE CLERK OF THE SUPREME COURT AND COURT OF APPEALS SHALL NOT BE CONFIDENTIAL. A brief shall not contain a reproduction, quotation, or extensive paraphrase of material which is declared by any statute or other rule of the Supreme Court to be confidential. Instead, parties or counsel may include a citation in the brief, as set forth in § 2-109(C)(1) to (3), to the portion of the record which is confidential.

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  • Nevada

    Appellate records are constitutionally open to the public unless sealed. Pursuant to NRS Chapter 179, a person may petition the court to seal criminal appellate records.

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  • New Hampshire

    Appellate records are subject to the right of access discussed in “Overcoming a presumption of openness” above.

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  • New Mexico

    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 pretrial records, indicates that they are likewise subject to public access.

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  • North Dakota

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

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  • Pennsylvania

    No Pennsylvania court has 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 criminal 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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  • Utah

    The general presumption in favor of the right of public access presumably applies equally to appellate 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)).

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  • Vermont

    Not only are the proceedings of the Vermont Supreme Court presumed to be public, the Vermont Rules of Appellate Procedure provide that “[t]he news media may record proceedings of the Supreme Court, unless the Chief Justice directs otherwise.”  V.R.A.P. Rule 35.  Note, however, that if records are deemed to not be publicly accessible under Vt. Pub. Acc. Ct. Rec. Rule 6, they “remain inaccessible if the case is appealed to another court.”  Vt. Pub. Acc. Ct. Rec. Rule 6(i).

    Audio recordings of oral arguments from the past two years are available at: https://www.vermontjudiciary.org/supreme-court/audio-recordings-oral-arguments.

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  • Virginia

    There are no reported cases in Virginia addressing the public’s right of access to appellate records.  The Fourth Circuit has held that the public’s qualified right of access extends to appellate proceedings. See United States v. Moussaoui, 65 F. App'x 881, 890 (4th Cir. 2003) (“There can be no question that the First Amendment guarantees a right of access by the public to oral arguments in the appellate proceedings of this court.”).

    Audio recordings of oral arguments since January 7, 2014 are available on the Virginia Supreme Court’s website.

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  • Washington

    Appellate hearings are open to the public.  The Washington Court of Appeals makes available audio recordings of oral arguments, which can be accessed at http://www.courts.wa.gov/appellate_trial_courts/appellateDockets/index.cfm?fa=appellateDockets.showDateList&courtId=a01&archive=y.  Video recordings of hearings before the Washington State Supreme Court are available at www.tvw.org.

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  • West Virginia

    Rule 40 of the West Virginia Rules of Appellate Procedure governs public access to appellate records, whether from an appeal of criminal case or any other case.  Id., http://www.courtswv.gov/legal-community/court-rules/appellate-procedure/Part-IX.html#rule40 .  The “general rule” is that, “[i]n all cases in which relief is sought in the Supreme Court, all pleadings, docket entries, and filings related thereto . . .  shall be available for public access unless otherwise provided by law or by a rule of this Court, or unless otherwise ordered by the Court in accordance with [Rule 40].”

    If the case record from the lower court includes records the lower court determined to be confidential, such records will remain confidential upon the appeal.  However, “[a]ny party or other person with standing may file a motion to unseal the case record or portion of a case record in this Court, setting forth good cause why the case record should no longer be confidential [and] the Court may, in its discretion, issue an order unsealing all or part of the case record, or issue an order denying the motion.”  Likewise, a party or other person with standing may move to seal a portion of the case record on appeal.

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  • Wyoming

    Appellate records are open the public under the constitutional right of access.

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