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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 Discipline, 893 P.2d 866, 992 (Nev. 1995), superseded on other grounds.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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  • 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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  • 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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  • 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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  • 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 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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  • 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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