I. Other civil court records issues
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)).
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)).
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); Courthouse News Service v. Brown, 908 F.3d 1063 (7th Cir. 2018) (abstaining, on federalism grounds, from adjudication of news service’s § 1983 action against county court clerk, alleging that clerk’s failure to immediately release newly filed complaints before administrative processing violated First Amendment right of access).
Access to both case-specific judicial documents and administrative records of the court system is primarily governed by Administrative Rules 37.5 through 37.8 of the Alaska Rules of Court, which state that they are “adopted pursuant to the inherent authority of the Alaska Supreme Court.” Any such court rules, like statutes, would of course be subject to review for possible unenforceability if they violate the federal or state constitution as written or applied. Administrative Rule 37.5, which previously governed access to judicial records, was substantially revised, effective October 2006. Although the new rules apply to all court records, court personnel were not required to redact or restrict information that otherwise was public in case records and administrative records created before October 15, 2006. Alaska Admin. R. 37.5(a)(2).
According to Rule 37.5, the purposes of these rules is to provide access to court records in a manner that maximizes accessibility to court records; supports the role of the judiciary; promotes government accountability; contributes to public safety; minimizes risk of injury to individuals; protects individual privacy rights and interests; protects proprietary business information; minimizes reluctance to use the courts to resolve disputes; makes most effective use of court personnel; provides excellent customer service; and does not unduly burden the ongoing business of the judiciary. Alaska Admin. R. 37.5(a)(1).
• General Access to Court Records. Court records are accessible to the public, except as provided in Alaska Admin. R. 37.5(e). The rules provide that all members of the public will have the same access to court records under the rules, with a couple not-generally-applicable exceptions. No distinction is made between the press and other “members of the public.” Admin. R. 37.5(b). Court records that are accessible to the public shall be open to inspection at all times during the regular office hours of the courts. The administrative director of the court system is responsible for establishing written guidelines to insure reasonable access and opportunity to inspect public court records and to insure their preservation and safekeeping. Admin. R. 37.5(d)(1), (f). The general right of access applies to all court records, regardless of the manner of creation, method of collection, form of storage, or the form in which the record is maintained. Admin. R. 37.5(d)(2). If a court record, or portion thereof, is excluded from public access, there must be a publicly accessible indication of the fact of exclusion but not the content of the exclusion except for records that are confidential (as opposed to sealed), according to Admin. R. 37.5(d)(3). However, Administrative Rule 40 requires the clerk of court to list a case on the public case index even though the case file has been sealed or made confidential under this rule—unless it comes within one of the specified exceptions noted below—and the public index must be made available to the public in electronic form except as limited by Administrative Rule 37.8. Only the presiding judge of the judicial district has the power to remove a party’s name from the public case index, and this action may be taken only in very limited circumstances, and as specified in the administrative rules. Admin. R. 40(b) and (c).
The presiding judge of a judicial district may direct the clerk of the court to substitute “Not Published” for a party's true name on the public index if the presiding judge finds that the issues in the case involve matters of a sensitive and highly personal nature, that publication of the name could expose a person to harassment, injury, ridicule, or personal embarrassment, and that protection of the party's name outweighs the public's interest in disclosure and any prejudice to the opposing party. If the presiding judge determines that the true name of more than one party in a case should be protected under this subsection, the parties shall be distinguished by number (“Not Published 1, Not Published 2”). Admin. R. 40(b). The presiding judge of a judicial district may direct the clerk of court to remove a party's name from the public index for a period of five years if the presiding judge finds that publication of the name is likely to result in substantial physical harm to the party or members of the party's household and protection of the party's name outweighs the public's interest in disclosure. After five years, the party's name will appear on the public index unless the presiding judge orders the name protected for an additional period of time, upon another showing that publication of the name is likely to result in substantial physical harm to the party or members of the party's household. Admin. R. 40(c). Unless otherwise ordered, while a request under subsection 40(b) or (c) is pending, (1) the party's name will not be added to the public index if the request is made with or in the filing that initiates the case; and (2) the party's name will remain on the public index if the request is made in an existing case. Admin. R. 40(d).
There are eleven enumerated exceptions in Admin. R. 40(a), pursuant to which a case might be excluded from the public index, including party names protected under Rule 40(b) and (c) rulings as discussed in the preceding paragraph, and criminal and minor offense cases dismissed because the prosecuting authority declined to file a charging document or for lack of probable cause, or due to identity errors, or because the named defendant was a minor wrongly charged in adult court with an offense within the jurisdiction for delinquency proceedings. They also include cases designated as confidential or sealed by statute or court rule, unless the index to those cases is public under court rules, and domestic violence, stalking or sexual assault protective order cases dismissed at or before a hearing on an ex parte petition because there is not sufficient evidence the petitioner is a victim or otherwise meets the requirements as defined by the relevant statute, and certain foreign domestic violence protective orders.
The court system must keep an Estate Index comprising all estate cases indexed alphabetically under the name of the person to whose estate the case relates, a Will Index comprising a list of all wills on deposit indexed alphabetically under the name of the person to whose will is deposited, a Protective Proceeding Index, an alphabetical index of all protective order proceedings kept under the names of the respondents, and a Registered Trust Index, an alphabetical list of all registered trusts will be kept under the name of the trust. All of these indices are public records even though the files may be confidential. Alaska Probate Rule 3(a), (b), (c), (e), (g). In addition, the court system must keep a Mental Commitment Index and a Judicial Bypass Proceeding Index, which are each confidential. Probate R. 3(d), (f), (g).
• Definitions. Alaska Admin. R. 37.5(c) sets out definitions for purposes of the rules governing access to court documents:
(1) “Court record” means both case records and administrative records, but does not include records that may be in the court’s possession that do not relate to the conduct of the court’s business.
(2) “Case record” means any document, information, data, or other item created, collected, received, or maintained by the court system in connection with a particular case.
(3) “Administrative record” means any document, information, data, or other item created, collected, received, or maintained by the court system pertaining to the administration of the judicial branch of government and not associated with any particular case.
The rules distinguish between “sealed” records, meaning “access to the record is restricted to the judge and persons authorized by written order of the court,” Admin. R. 37.5(c)(5), and “confidential” records, meaning access to the record is restricted to the parties to the case, counsel of record, individuals with a written order from the court authorizing access, and court personnel for case processing purposes only. Admin. R. 37.5(c)(4).
“In electronic form” means any information in a court record in a form that is readable through an electronic device, Admin. R. 37.5(c)(7), and “remote access” means the ability of a person to inspect and copy information in a court record in electronic form through an electronic means. Admin. R. 37.5(c)(6).
• Court Records Excluded from Public Access. As provided in Alaska Admin. R.37.5(e):
(1) Case Records. The following case records and case-related documents are not accessible to the public:
(A) memoranda, notes, or preliminary drafts prepared by or under the direction of any judicial officer of the Alaska Court System that relate to the adjudication, resolution, or disposition of any past, present, or future case, controversy, or legal issue;
(B) legal research and analysis prepared or circulated by judges or law clerks regardless of whether it relates to a particular case and written discussions relating to procedural, administrative, or legal issues that are or may be before the court; and
(C) documents, information, data, or other items sealed or confidential pursuant to statute, court rule, case law, or court order.
(2) Administrative Records. The following administrative records are not accessible to the public:
(A) personal information, performance evaluations, and disciplinary matters relating to any past or present employee of the Alaska Court System or any other person who has applied for employment with the Alaska Court System, and personnel records that are confidential under Alaska Court System Personnel Rules C1.07 and PX1.08;
(B) the work product of any attorney or law clerk employed by or representing the Alaska Court System if the work product is produced in the regular course of business or representation of the Alaska Court System;
(C) individual direct work access telephone numbers and email addresses of judges and law clerks;
(D) documents or information that could compromise the safety of judges, court staff, jurors, or the public, or jeopardize the integrity of the court’s facilities or the court’s information technology or recordkeeping systems;
(E) records or information collected and notes, drafts, and work product generated during the process of developing policy relating to the court’s administration of justice and its operations;
(F) email messages that are created primarily for the informal communication of information and that do not set policy, establish guidelines or procedures, memorialize transactions, or establish receipts; and
(G) records that are confidential, privileged, or otherwise protected by law, rule, or order from disclosure.
• Prohibiting Access to Public Case Records. Alaska Admin. R. 37.6 provides for limiting access to otherwise public records in case files as follows.
Limiting Access. Notwithstanding any other rule to the contrary, the court may, by order, limit access to public information in an individual case record by sealing or making confidential the case file, individual documents in the case file, log notes, the audio recording of proceedings in the case, the transcript of proceedings, or portions thereof. A request to limit access may be made by any person affected by the release of the information or on the court’s own motion. Admin. R. 37.6(a).
Standard. The court may limit public access as described above if the court finds that the public interest in disclosure is outweighed by a legitimate interest in confidentiality, including but not limited to (1) risk of injury to individuals, (2) individual privacy rights and interests, (3) proprietary business information, (4) the deliberative process, or (5) public safety. Admin. R. 37.6(b).
Least Restrictive Alternative. In limiting public access the court must use the least restrictive means that will achieve the purposes of these public access rules and the reasonable needs as set out as the basis for the request, without unduly burdening the court. Admin. R. 37.6(c).
Procedure. Any request to limit access must be made in writing to the court and served on all parties to the case unless otherwise ordered. A request to limit access, the response to such a request, and the order ruling on such a request must be written in a manner that does not disclose non-public information, are public records, and shall not themselves be sealed or made confidential. Admin. R. 37.6(d).
• Obtaining Access to Non-Public Court Records. Alaska Admin. R. 37.7 provides for obtaining access to otherwise non-public information in court records as follows:
Allowing Access to Non-Public Records. The court may, by order, allow access to non-public information in a case or administrative record if the court finds that the requester’s interest in disclosure outweighs the potential harm to the person or interests being protected, including but not limited to: (1) risk of injury to individuals, (2) individual privacy rights and interests, (3) proprietary business information, (4) the deliberative process, or (5) public safety. Non-public information includes information designated as confidential or sealed by statute or court rule and public information to which access has been limited by court order in a particular case. Admin. R. 37.7(a).
Procedure. Any request by any person to allow access must be made in writing to the court and served on all parties to the case unless otherwise ordered. The court shall also require service on other individuals or entities that could be affected by disclosure of the information. A request to allow access, the response to such a request, and the order ruling on such a request must be written in a manner that does not disclose non-public information, are public records, and shall not themselves be sealed or made confidential. Admin. R. 37.7(b).
• Electronic Case Information. The following case-related information maintained in the court system’s electronic case management systems will not be published on the court system’s website or otherwise made available to the public in electronic form: (1) addresses, phone numbers, and other contact information for parties and witnesses; (2) names, addresses, phone numbers, and other contact information for victims in criminal cases; (3) social security numbers; (4) driver and vehicle license numbers; (5) account numbers of specific assets, liabilities, accounts, credit cards, and PINs (Personal Identification Numbers); (6) names of minor children in domestic relations cases, including paternity actions, domestic violence cases, emancipation cases, and minor settlements under Civil Rule 90.3; (7) juror information; (8) party names protected under Administrative Rule 40(b) and (c); and (9) information that is confidential or sealed in its written form, and (10) attorney and other e-mail addresses used by the court to distribute court orders, notices, judgments, and other documents.
• Bulk Distribution of Electronic Case Information and Distribution of Compiled Information. Bulk distribution—defined as the distribution of all or a significant subset of the case information in the court system’s electronic case management systems, as is, and without modification or compilation—of case information is permitted, unless the information is not publicly available in electronic form under Admin. R. 37.8(a), and of imaged case records is not allowed, unless the records are already remotely accessible to the public on the court system’s website. Admin. R. 37.8(b). The administrative director of the court system may allow bulk distribution of case information that not publicly available and of publicly available imaged case records for scholarly or governmental purposes, pursuant to procedures to protect the security of information and records so released. Admin. R. 37.7(b)(4).
Compiled information, defined as information that is derived from the selection, aggregation, or reformulation of case information in the court system’s electronic case management systems, may be made available unless the compiled information is privileged or reveals information that is confidential, sealed, or not available to the public under Admin. R. 37.8(a). Access to other compiled information may be approved by the administrative director if resources are available to compile the information and if it is an appropriate use of public resources, such as for scholarly, governmental, or any other purpose in the public interest. Admin. R. 37.8(c).
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.)
The D.C. Circuit has held that civil litigants “enjoy no right of access to classified information.” Dhiab v. Trump, 852 F.3d 1087, 1092–93 (D.C. Cir. 2017). While the court distinguished civil from criminal cases (reasoning that the government brings a criminal case and can better control the disclosure of classified information, as opposed to being a defendant in a civil case), the court cast doubt on the public’s ability to obtain national security information in a civil or criminal proceeding. Id. at 1094 (“[T]here is no tradition of publicizing secret national security information involved in civil cases, or for that matter, in criminal cases.”). In Dhiab, the court denied intervening media organizations’ motion to unseal classified video recordings of a Guantanamo detainee that were used in the detainee’s civil habeas corpus proceeding.
Common Law Right of Access not Superseded by Statutes with Confidentiality Provisions
In Metlife, Inc., the D.C. Circuit rejected the notion that “when a statute requires an agency to preserve the confidentiality of administrative materials, the statute supersedes the Hubbard test and requires that agency materials be sealed during litigation.” Metlife, Inc. v. Fin. Stability Oversight Council, 865 F.3d 661, 673–74 (D.C. Cir. 2017) (finding that “Dodd-Frank does not displace the common-law right of public access to judicial records, or the Hubbard test that courts in this Circuit apply when asked to seal or unseal such records”). The court held that statutes containing confidentiality provisions might supersede the common law right of access where “a statutory purpose to the contrary [of disclosure] is evident” but found that no such statutory purpose was evident in the Dodd Frank Act. Id. at 674.
Access to records online is currently governed by Florida Supreme Court Administrative Order 14-19, as amended. At least 59 counties in Florida have implemented free, online access to court records. Access levels are governed by the Access Security Matrix Standards adopted by the Florida Supreme Court in AOSC 14-19 and later administrative orders. Under Florida Supreme Court Administrative Order 14-18, the general public has access to all records except those that have been expunged or sealed, are automatically confidential under Fla. R. Jud. Admin. 2.420(d)(1), or are made confidential by court order. In Courthouse News Serv. v. Forman, No. 4:22cv106-MW/MAF (N.D. Fla. Mar. 9, 2022), a news media organization challenged a pattern of delay in access to newly filed civil complaints in Broward County. The case was ultimately resolved by settlement, which resulted in the creation of a statewide portal that provides immediate access to newly filed non-confidential complaints in a public review queue. Individuals can gain access to this review queue by signing up for an account at https://www.myflcourtaccess.com/authority.
Digital recordings of court proceedings are accessible public court records in Florida.
At least one appellate court has supported a journalist’s ability to use a laptop computer in the courtroom to live blog during a high-profile criminal trial in Duval County (Jacksonville, Florida). See Morris Publishing Co. v. State, No. 1D10-226, 2010 WL 363318 (Fla. 1st DCA Jan. 20, 2010).
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.
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).
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.
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, 720 (La. App. 2004) (finding that the legislative history and plain language of the law support a holding that hand-held or portable scanners are permitted). However, because of the loss of revenue from providing copies of records, there is considerable resistance to the use of hand-held scanners. Persons inspecting public records are also permitted to have records reproduced on CD, DVD, or flash drives. Johnson v. City of Pineville, 9 So. 3d 313, 320 (La. App. 2000).
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).
Adoption proceedings and records are generally closed to the public, subject to very limited exceptions. M.C.L. 710.67. A court may open adoption records only upon good cause shown expressly permitting inspection. M.C.L. 710.67(1). Names of biological or adoptive parents of an adopted person are sealed unless ordered to be opened by a court. M.C.L. 710.67(2).
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.
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.
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).
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).
In New York, matrimonial proceedings are given greater protection under New York’s Domestic Relations Law § 235 (emphasis added):
(1) An officer of the court with whom the proceedings in a matrimonial action or a written agreement of separation or an action or proceeding for custody, visitation or maintenance of a child are filed . . . shall not permit a copy of any of the pleadings, affidavits, findings of fact, conclusions of law, judgment of dissolution, written agreement of separation or memorandum thereof, or testimony, or any examination or perusal thereof, to be taken by any other person than a party, or the attorney or counsel of a party, except by order of the court.
(2) If the evidence on the trial of such an action or proceeding be such that public interest requires that the examination of the witnesses should not be public, the court or referee may exclude all persons from the room except the parties to the action and their counsel, and in such case may order the evidence, when filed with the clerk, sealed up, to be exhibited only to the parties to the action or proceeding or someone interested, on order of the court.
. . . .
(5) The limitations of subdivisions one, two and three of this section in relation to confidentiality shall cease to apply one hundred years after date of filing, and such records shall thereupon be public records available to public inspection.
See also Shiles v. News Syndicate Co., 27 N.Y.2d 9, 14, 261 N.E.2d 251, 253 (1970) (“Section 235 of the Domestic Relations Law, which prohibits the taking of copies, or even the inspection, of the records of matrimonial proceedings by any one other than the parties or their counsel, manifests a clear legislative design that those proceedings be kept secret and confidential.”).
The Ohio Supreme Court defines “public records” to include “any record required by law to be kept, or necessary to be kept, in the discharge of a duty imposed by law.” State ex rel. Harmon v. Bender, 494 N.E.2d 1135, 1136 (Ohio 1986). This broad definition includes videotapes and other recordings of trial proceedings. Id. at 1137. The Rules of Superintendence for the Courts of Ohio require courts to provide direct access to records, meaning “during regular business hours at the place where the record is made available.” Sup.R. 44(J), 45(B). The Rules provide that courts may offer remote (electronic) access as well. Sup.R. 45(C). The remote access record must be identical to the record available by direct access though it can exclude an exhibit or attachment if noted on the document. Sup.R. 45(C)(1).
“Administrative documents” of the courts are also presumptively open under Rules 44 and 45 of the Rules of Superintendence for the Courts of Ohio. An “administrative document” is “a document and information in a document created, received, or maintained by a court that serves to record the administrative, fiscal, personnel, or management functions, policies, decisions, procedures, operations, organization, or other activities of the court,” subject to certain exclusions. Sup.R. 44(G).
Many trial courts and appellate courts allow online access to court dockets in criminal and civil cases.
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.
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, 410-11, 711 P.2d 966, 977 (1985).
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 (except if the account is the subject of the case, active, and cannot otherwise be identified except by the last four digits of the financial account), credit card numbers (same exception), 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 Public Access Policy of the Unified Judicial System of Pennsylvania, available at https://www.pacourts.us/public-records/public-records-policies (last visited Aug. 27, 2021), 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 1236-B 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. Interpreting the same language of the former Coroner’s Act, which was repealed and replaced by the current Act in 2018, the Pennsylvania Supreme Court held that the Act 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).
In South Carolina, a record does not become a public record until it is in the hands of a public body, like a court. Consequently, any record that is not entered into evidence, filed with a court, or signed by a judge, is likely not yet considered public information. Those seeking these records may request them from attorneys for the parties.
Obtaining Medical Information: “[M]edical information obtained from a confidential medical record retains its confidentiality unless and until the patient puts his or her medical history at issue in a civil action or waives the confidentiality.” Doe v. Brentwood Academy Inc., 578 S.W.3d 50, 55 (Tenn. Ct. App. 2018). The court further explained that “[b]ecause Jane Doe’s medical records and her medical history derived therefrom constitutes confidential information, and because that confidential information is not relevant to Jane Doe’s claim and was not relied upon by the trial court to make a decision in this case, Jane Doe has established a compelling reason for sealing her medical records and confidential information derived therefrom. Further, the redaction of only those few lines which reveal the confidential information is narrowly tailored to serve that compelling reason.” Id. at 56.
Sealing Discovery Responses: Where discovery responses must be filed pursuant to Tennessee Rule of Civil Procedure 5.05, a protective order which seeks to seal all or some of the discovery responses is evaluated under Rule 26.03’s good cause standard. Ballard v. Herzke, 924 S.W.2d 652, 658-59 (Tenn. 1996). The factors that weigh against entry of a protective order under the good cause standard are:
(1) The party benefiting from the protective order is a public entity or official; (2) the information sought to be sealed related to a matter of public concern; and (3) the information sought to be sealed is relevant to other litigation and sharing it would promote fairness and efficiency.
Id. (citing Pansy v. Borough of Stroudsburg, 23 F.3d 772, 787 (3d Cir. 1994)). Conversely, the factors that weigh in favor of good cause include:
(1) the litigation involves private litigants; (2) the litigation concerns matters of private concern or [are] of little legitimate public interest; and (3) disclosure would result in serious embarrassment or other specific harm.
Id. at 658-59 (citations omitted). None of the listed factors are weighted more than another, but instead “the balancing test allows trial courts to evaluate the competing considerations in light of the facts of each individual case.” Id. at 659 (citation omitted).
A protective order that induces discovery may be modified or lifted, but an additional factor will be used in the balancing. Id. at 659-60. The additional factor is “the reliance by the original parties on the protective order,” but even this additional factor “is not outcome determinative.” Id. at 659. Instead, “the extent to which a party can rely on a protective order should depend on the extent to which the order induced the party to allow discovery….” Id. at 660 (citing Beckman Indus., Inc. v. Int’l Ins. Co., 966 F.2d 470, 472 (9th Cir. 1992)). In other words, “trial courts must consider whether reliance is real and reasonable or is only an effort by litigants to avoid later modification.” Id.
The reliance factor may also be limited in two factual scenarios. First, “reliance upon a protective order that is improvidently granted in the first instance will not insulate that order from subsequent modification. Where it is apparent the trial court did not engage in proper balancing to initially determine that good cause supported issuance of the protective order, modification is proper.” Id. at 659 n.4 (citing Pansy, 23 F.3d at 790). Second, “reliance on a blanket protective order ordinarily weighs little in the balance against modification.” Id. That is because while blanket protective orders “are particularly useful in effecting cooperation and expediting the flow of pretrial discovery, … they are also, by nature, over inclusive, less likely to induce reasonable reliance, and therefore peculiarly subject to later modification.” Id. (citing Beckman Indus., Inc., 966 F.2d at 475-76).
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 may 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.
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).
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).
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.
The Supreme Court of Wisconsin has differentiated between requests for records and information. There is no obligation for a governmental entity to release information in response to a records request. The requesting entity must make it clear that they are requesting a record as opposed to notes or comments. “While a records request need not be made with exacting precision to be deemed a valid public records request, . . . [h]ere, the requests could reasonably be perceived as seeking information, rather than a record.” Journal Times v. Police & Fire Comm'rs Bd., 2015 WI 56, ¶ 8, 362 Wis. 2d 577, 866 N.W.2d 563.