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I. Other civil court records issues

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  • 2nd Circuit

    Applying the experience and logic test where the courts look at whether there is a tradition of openness and whether openness serves a meaningful purpose, the Second Circuit has recognized a First Amendment right of access to contempt proceedings and records. See Newsday, LLC v. Cnty. of Nassau, 730 F.3d 156 (2d Cir. 2013). Similarly, the Second Circuit also recognizes the public's common law right to inspect and copy judicial records and creates a presumption that all documents filed in a bankruptcy case are accessible to the public and subject to examination by the public at reasonable times without charge as codified by 11 U.S.C. § 107(a). Togut v. Deutsche Bank AG (In re Anthracite Capital, Inc.), 492 B.R. 162, 168 (Bankr. S.D.N.Y. 2013) (citing Video Software Dealers Assoc. v. Orion Pictures Corp. (In re Orion Pictures Corp.), 21 F.3d 24, 26 (2d Cir. 1994)).

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  • 4th Circuit

    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)).

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  • 5th Circuit

    Nothing found specific to the Fifth Circuit.

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  • 7th Circuit

    See, e.g., O'Keefe v. Chisholm, 769 F.3d 936, 943 (7th Cir. 2014) (sealed documents gathered during “John Doe” criminal proceeding in state court were filed under seal in federal court; denying motion for access, Court held, as a matter of federalism, the state, not the federal judiciary, should determine whether, and to what extent, documents should be disclosed, so federal record would remain sealed “as long as documents containing the same information remain sealed in the state-court record”); GEA Group AG v. Flex-N-Gate Corp., 740 F.3d 411, 420 (7th Cir. 2014) (rule that parties to a German arbitration may not disclose evidence presented in the arbitration “may be a good rule or a bad rule, but it is a rule that United States courts should respect as a matter of comity”; granting motion to seal).

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  • 8th Circuit

    There appears to be no Eighth Circuit case law discussing the right of access to other relevant civil court records issues.

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  • California

    Access to all types of civil court records should be presumed in California, provided they are “submitted at trial or as a basis for adjudication in ordinary civil cases.” McNair v. Nat’l Collegiate Athletic Ass’n, 234 Cal. App. 4th 25, 39, 183 Cal. Rptr. 3d 490 (2015).

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  • Colorado

    The Colorado Judicial Department’s Public Access to Court Records policy (“Public Access Policy”) (pdf) expressly applies to “all electronically filed (e-filed) or served (e-service) documents in accordance with the rules of the Supreme Court . . . .” (Section 4.00.)  In general, all “[i]nformation in the court record is accessible to the public,” and “court record” is broadly defined.  (Section 3.03(a); Section 4.10.)  The Public Access Policy restricts access to records in certain types of cases or to certain documents, absent a contrary court order.  (Section 4.60.)

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  • Georgia

    Georgia’s non-unified court system currently has no single statewide system for electronically accessing court dockets and records but many courts—including the Supreme Court, the Court of Appeals and many trial courts—do provide such access online via their own website or that of an authorized private vendor.

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  • Idaho

    All court records exempt from disclosure are enumerated within Idaho Court Administrative Rule 32(g).

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  • Indiana

    Indiana Administrative Rule 9(G)(2)(g) mandates that information identifying witnesses or victims in civil protection order proceedings shall be excluded from the public record.

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  • Kansas

    Court rules on access to Kansas court records are based on the Kansas Open Records Act (KORA), K.S.A. 45-215 et seq.  If records are in audio/visual form, a person may claim a right to inspect them under KORA.  K.S.A. 45-218(a).  However, KORA does not require officials to make copies of such materials, unless the materials were shown publicly and are not subject to copyright protection.  K.S.A. 45-219(a).

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  • Kentucky

    Kentucky state court proceedings are recorded by audio-visual means.  The audio-visual recordings can be copied and are subject to public access in the same manner as other court records.  Kentucky does not have electronic access to court records, but court dockets are generally open to the public and are available at the court clerk’s office in hard copy and on computer terminals.  Court dockets, in limited format, may also be accessed online at http://kcoj.kycourts.net/dockets.  Dockets of the Kentucky Court of Appeals and Kentucky Supreme Court are available on the Court of Justice website, http://courts.ky.gov/Pages/legal.aspx.

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  • Louisiana

    The Public Records Act applies to records “regardless of physical form or characteristics, including information contained in electronic data processing equipment.” La. R.S. 44:1(A)(2)(a).

    Electronic access to records varies from judicial district to judicial district. Some courts, typically in rural areas, do not even have websites. Clerk’s offices in urban areas, such as those in Shreveport, Baton Rouge, Covington and Gretna, do have websites with access to court records. Typically, minimal or no information is available for free, and full access, including images of documents, is available only with a paid subscription. The clerk’s website for the Civil District Court for New Orleans does not provide access to documents.

    Administrative records of courts are subject to the Public Records Act. See Henderson v. Bigelow, 982 So.2d 941, 947 (La. App. 2008) (records “relative to the expenditure and disbursement of public monies from the” judicial expense funds of courts are public records).

    Persons inspecting public records are allowed to use hand-held scanners to make copies. First Commerce Title Co., Inc. v. Martin, 887 So.2d 716 (La. App. 2004). Because of the loss of revenue from providing copies of records, there is considerable resistance to the use of hand-held scanners.

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  • Maine

    Maine has contracted to implement an electronic filing system, and the Court will be issuing new rules addressing remote access to civil and criminal case records.

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  • Maryland

    Copying of Judicial Records: Under the Maryland Rules, the right to inspect a judicial record entered into evidence includes the right to copy that record. Md. Rule 16-904; see also State v. WBAL-TV, 975 A.2d 909 (Md. Ct. Spec. App. 2009) (affirming lower court’s grant of right to copy videotape and audiotape confession entered into evidence in criminal case under Maryland Rules). But see Group W Television, Inc. v. State, 626 A.2d 1032 (Md. Ct. Spec. App. 1993) (no First Amendment right to copy trial exhibits).

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  • Minnesota

    Minnesota Rules of Public Access to Records of the Judicial Branch provide that any person may inspect and copy court records “upon request to a custodian.” Minn. R. Pub. Access Rec’ds. Jud. Br. 8, subd. 1. The rules also allow remote access to certain types of court records, including court calendars, indexes, judgment dockets, orders, appellate opinions, etc. Id. at subd. 2.

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  • Nebraska

    Court records are available via remote electronic access on Nebraska’s official website, www.Nebraska.gov. The system, known as “JUSTICE,” provides access to court case records in the county and district courts. Prior to the launch of this system in 2005, requestors had to either call, email or visit the courthouse to access the information they needed. Any citizen with a credit card and the first and last name of the person to be searched can access all public information about a court case, including:

    • Case detail, such as the date and outcome of the trial, what the case was about, and the name of the presiding judge
    • Party listing, including the names of plaintiffs, defendants, and associated attorneys
    • Court cost information, including all fees associated with the case
    • Payments made by and to the court
    • Register of actions, including all actions prior to, during, and after the case.
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  • Nevada

    A gag order which prevents the parties from disclosing any documents related to their case may violate the First Amendment of the U.S. Constitution.  Johanson v. Eighth Judicial Dist. Court of State of Nev. ex rel. Cty. of Clark, 124 Nev. 245, 251 (2008).  “A district court may enter a gag order only when: (1) the activity restrained poses either a clear and present danger or a serious and imminent threat to a protected competing interest, (2) the order is narrowly drawn, and (3) less restrictive alternatives are not available.”  Id. (internal citations and quotations omitted).

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  • New Hampshire

    The right of access discussed in “Overcoming a presumption of openness” above, applies to other civil court records issues.

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  • New Mexico

    If a private entity acts on behalf of a government entity, the records of that private entity will be subject to the same disclosure requirements under the Inspection of Public Records Act (“IPRA”) as the government entity. Factors to be considered in the inquiry include: (1) the level of public funding; (2) whether funds were commingled; (3) whether the activity was conducted on publicly owned property; (4) whether the services contracted for are an integral part of the public agency's chosen decision-making process; (5) whether the private entity is performing a governmental function or a function which the public agency otherwise would perform; (6) the extent of the public agency's involvement with, regulation of, or control over the private entity; (7) whether the private entity was created by the public agency; (8) whether the public agency has a substantial financial interest in the private entity; and (9) for whose benefit the private entity is functioning. State ex rel. Toomey v. City of Truth or Consequences, 2012-NMCA-104, ¶ 22, 287 P.3d 364, 370 (holding private company’s meeting recordings to be subject to disclosure requirements of IPRA pursuant to these factors).

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  • Oklahoma

    In general, records filed in court proceedings are subject to the Oklahoma Open Records Act, Okla. Stat. tit. 51, §§ 24A.1 et seq., see Nichols v. Jackson, 2002 OK 65, 55 P.3d 1044, and can be obtained simply by asking for them.  Dockets in all state civil, criminal, and appellate cases are readily available to the public through the Oklahoma State Courts Network, www.oscn.net. In many civil cases, documents filed with the court clerk are scanned and can be downloaded for free.

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  • Oregon

    The Oregon Supreme Court has held that, while Oregon courts embrace the “principle of open justice,” the public may not necessarily access evidence introduced in a proceeding. Jack Doe 1 v. Corp. of Presiding Bishop of Church of Jesus Christ of Latter-Day Saints, 352 Or. 77, 100, 280 P.3d 377, 390 (2012) (holding that “the constitutional right to an open court does not create . . . a right in every observer, at the end of a court proceeding, to obtain the release of the evidence admitted or not admitted during the proceeding”). Along those lines, the Oregon Supreme Court has ruled that the Oregon Constitution does not provide a right for a television station to copy a videotaped deposition that was played in court in a civil trial and submitted as evidence. State ex rel KOIN-TV Inc., v. Olsen, 300 Or. 392, 410, 711 P.2d 966 (1985).

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  • Pennsylvania

    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).

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  • South Dakota

    “[P]ublic access” includes a right to “obtain a copy.” S.D. Codified Laws § 15-15A-3(3). This rule is applicable to all court records, “regardless of the physical form of the court record.” S.D. Codified Laws § 15-15A-4.

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  • Utah

    Except for the information required to be shown on the marriage license application form, any information given by a marriage license applicant to comply with the statute “shall be confidential information and shall not be released by any person, board, commission or other entity.”  Utah Code § 30-1-37.  However, statistical data based on the information provided by a marriage license applicant may be used, without identifying specific individuals, by the premarital counseling boards appointed by the county boards of commissioners.  Id.

    The court file in a divorce proceeding may be sealed by the court upon the motion of either party.  The sealed file is available to the public only by court order, but the divorce decree itself is open to public inspection.  See § 30-3-4(2).  In 1995, United States Congresswoman Enid Greene Waldholtz successfully moved to seal the court file in her divorce action against Joseph Waldholtz.  See Waldholtz v. Waldholtz, No. 954904704 (Utah 3d Dist. Jan. 16, 1996). The Congresswoman filed for divorce after she and her husband became embroiled in a controversy involving financial misconduct.  Id.  After several news organizations intervened, the court vacated its order sealing the records and held that the Waldholtzs’ divorce records were public.  Id.

    If spouses file a petition with the family court division seeking conciliation, the parties’ names and the contents of the conciliation petitions shall not be open to public inquiry, except that an attorney representing one of the spouses may determine from the clerk of the court if the other spouse has filed a conciliation petition.  See § 30-3-16.6.  The conciliation petition and all communications pertaining to the conciliation “shall be deemed to be made in official confidence within the meaning of Section 78B-1-137 and shall not be admissible or usable for any purpose in any divorce hearing or any other proceeding.”  § 30-3-17.1.

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  • Vermont

    Vermont Rule of Civil Procedure 79.3 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.C.P. Rule 79.3(f).

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  • Virginia

    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).

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  • West Virginia

    Family court proceedings are not open to the public. W.Va. Rules of Practice and Procedure for Family Court, 6(b). Although family court orders are public record, all pleadings, recordings, exhibits, transcripts, or other documents contained in a court file are confidential and are not available for public inspection. W.Va. Rules of Practice and Procedure for Family Court, 6 (a). Unless the person who is the subject of confidential records waives confidentiality in writing, family court records may not be obtained by subpoena, but only by court order and upon full compliance with statutory and case law requirements. W.Va. Rules of Family Court Practice and Procedure, 6(d), http://www.courtswv.gov/legal-community/court-rules/Family-Court/administrative-provisions.html#rule6.

    Except for court orders and case indexes, all records of minor guardianship proceedings are confidential and shall not be disclosed to anyone who is not a party to the proceeding, counsel of record, or the court presiding over the proceeding, unless the court by written order permits examination of such records. W.Va. Rules of Minor Guardianship Proceedings, 7 (b), http://www.courtswv.gov/legal-community/court-rules/MinorGuardian/contents.html#rule7.

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