I. Other civil court records issues
Pseudonymous litigation undermines the public’s right of access to judicial proceedings. The public has an interest in knowing the names of the litigants, and disclosing the parties’ identities furthers openness of judicial proceedings. However, in exceptional circumstances, compelling concerns relating to personal privacy or confidentiality may warrant some degree of anonymity in judicial proceedings, including use of a pseudonym. See Co. Doe v. Pub. Citizen, 749 F.3d 246, 273 (4th Cir. 2014) (citing James v. Jacobson, 6 F.3d 233 (4th Cir. 1993)).
In general, records in civil cases are accessible to the public. The Pennsylvania Supreme Court has adopted a policy governing access to case records, including civil case records. See 204 Pa. Code § 213.81. The policy provides that “[a]ll case records shall be open to the public” with some significant exceptions for documents and information deemed confidential and thus not available to the public. Those categories include the following:
- social security numbers;
- driver license numbers;
- state identification numbers;
- minors’ names and dates of birth, except when a minor is charged as a defendant in a criminal matter;
- financial institution account numbers, credit card numbers, PINS or passwords used to secure accounts;
- minors’ educational records;
- medical/psychological records;
- children and youth services’ records;
- information sealed or protected pursuant to court order;
- information to which access is otherwise restricted by federal law, state law, or state court rule; and
- case records in family court actions, except for dockets, court orders and opinions.
Additionally, the policy provides that certain categories of information and documents can be accessed in-person at a court facility, but cannot be accessed remotely, including information that identifies the identity of jurors or witnesses.
Of course, the policy’s restrictions on access cannot override the First Amendment right of access. It is therefore possible that in certain cases the withholding of documents or information pursuant to the policy may be subject to a successful First Amendment challenge.
Generally, the policy allows a request for records to be made orally, although it further provides that the records custodian is permitted to require a written request. A request “shall identify or describe the records sought with specificity to enable the custodian to ascertain which records are being requested.” Any denial of a request must be made in writing.
Anyone seeking documents should be aware of the 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, which governs access to electronic case information residing in three statewide case management systems: Pennsylvania Appellate Courts Case Management System, Common Pleas Case Management System, and Magisterial District Judge System.
Section 1251 of the Pennsylvania Coroner’s Act provides that “every coroner, within (30) days after the end of each year, shall deposit all of his official records and papers for the preceding year in the office of the prothonotary for the inspection of persons interested therein.” Those records are public documents. The Pennsylvania Supreme Court has held that Section 1251 does not, however, prevent a court from sealing an autopsy report beyond the statutory term. In re Buchanan, 880 A.2d 568, 577 (Pa. 2005). The autopsy report may remain sealed if the party seeking closure shows that “the release of the report . . . poses a threat of substantially hindering or jeopardizing the ongoing investigation.” Id. at 577-78.
Divorce hearings are presumptively open but “are the type of proceedings which courts may close to protect the rights of the parties.” Katz v. Katz, 514 A.2d 1374, 1380 (Pa. Super. 1986); see also R.W. v. Hampe, 626 A.2d 1218, 1222 (Pa. Super. 1993) (“Divorce cases present one exception to the general rule of openness. The subject matter of divorce litigation serves, in many cases, ‘only to embarrass and humiliate’ the litigants.” (citation omitted)). In 2017, the Court of Common Pleas in Allegheny County granted a newspaper’s motion to unseal a divorce action involving an extra-marital affair carried out by a sitting U.S. Congressman. See Sally v. Edwards, No. FD 16-008377-004 (Allegheny Cty. C.C.P. Dec. 3, 2017).
The Virginia Code grants trial courts authority to seal records from divorce proceedings, including any agreement between the parties. See Va. Code § 20-124. However, the authority under § 20-124 does not negate the presumption of public access to court records. See Shiembob v. Shiembob, 55 Va. App. 234, 244, 685 S.E.2d 192, 198 (Va. Ct. App. 2009) (holding that trial court did not err in vacating its prior order sealing divorce records and finding that “Husband’s undefined concern for his professional reputation does not rebut the presumption of openness of judicial records.”); Hawkins v. Hawkins, 82 Va. Cir. 351, 2011 WL 12663403, *1 (Madison Cir. Ct. Mar. 16, 2011) (“With regard to the sequestration order, the court acknowledges its authority pursuant to § 20–124 of the Code of Virginia . . . However, in our democracy, all aspects of the judicial branch of government are open for citizens to observe and inspect.”). Once the trial court loses jurisdiction over a divorce case, it lacks authority to retroactively seal divorce records. See Martinez v. Martinez, 79 Va. Cir. 185, 2009 WL 7416011 (Fairfax Cir Ct. Aug. 4, 2009.
The Office of Attorney General has opined that under Virginia Code § 17.1-208, circuit court clerks have a duty to furnish records even if the record is maintained exclusively in a digital format, provided the records are not sealed by court order or otherwise exempt from disclosure by law. See Va. Att’y Gen. Op., 2002 WL 31957978 (Dec. 19, 2002).
The Office of the Attorney General has opined that the original marriage license and certificate maintained by the clerk of the circuit court are open to inspection by the public pursuant to Virginia Code § 17.1-208, and that the public may have access to microfilmed copies of such records. See Va. Att’y Gen. Op., 2000 WL 1545002 (Sept. 27, 2000).