J. Other criminal court records issues

This will vary by jurisdiction.

The common law right to access court records does not extend to sealed plea bargains and separate court files of co-conspirators. United States v. Hickey, 767 F.2d 705, 709 (10th Cir. 1985), cert. denied, 474 U.S. 1022 (1985) (concluding concerns for witness safety outweigh common law right of access).

The press has no common law, First Amendment, or statutory right of access to fees, costs, and expense applications and related information filed by court-appointed criminal defense attorneys or to any transcripts of hearings and court orders concerning those applications under the Criminal Justice Act. See United States v. Gonzales, 150 F.3d 1247 (10th Cir. 1998). Subject to certain conditions, the court may permit the inspection of fee application forms without supporting background documents upon completion of sentencing. Id.

The public does not have a right under the First Amendment or the common law to financial documents submitted by a criminal defendant to show financial eligibility for Criminal Justice Act (CJA) government funding of his attorney’s fees.  Boston Herald, Inc. v. Connolly, 321 F.3d 174, 176 (1st Cir. 2003).

The Third Circuit has recognized a First Amendment and common law right of access that extends to disclosure of bills of particulars, unless sealing is narrowly tailored to further a compelling governmental interest. See United States v. Smith, 776 F.2d 1104, 1112–14 (3d Cir. 1985).

One trial court within the Third Circuit has noted that the press and public do not have a right of access to transcripts at cost, but rather must pay the court reporter the going rate.  Chase v. Public Utility Comm’n of Pa., 2008 WL 906491 (M.D. Pa. 2008).

The public does not have a First Amendment right of access to “attorney inquiry hearings” designed to address a wide variety of problems that can arise between criminal defendants and their counsel, including, for example, potential conflicts of interests.  Openness can frustrate the purpose of such hearings by forcing the defendant to choose between openly explaining his problem with his attorney (in which case the Government may catch a glimpse of his defense strategy and takes steps to frustrate it) and explaining his problem in very general terms (leaving the presiding judge to guess at the nature of the problem and its solution). See United States v. Byrd, No. RDB-14-0186, 2015 WL 221769, *2 (D. Md. Jan. 13, 2015) (denying motion to unseal transcript of attorney inquiry hearing), report and recommendations adopted, 2015 WL 2374409 (D. Md. May 15, 2015).

Nothing found specific to the Fifth Circuit.

The Sixth Circuit has rejected a district court’s blanket sealing of all plea agreements under both the First Amendment and common law rights of access.  United States v. Dejournett, 817 F.3d 479, 485 (6th Cir. 2016).  In fact, the Sixth Circuit explained that “plea agreements are the quintessential judicial record, entitled to the protection of the First Amendment right to public access of judicial records.”  Id. (citations omitted).  As such, “[t]he public may be prevented from accessing plea agreements ‘only by an overriding interest based on findings that closure is essential to preserve higher values and is narrowly tailored to serve that interest.’”  Id. (quoting Press-Enterprise Co v. Superior Court, 464 U.S. 501, 510 (1984)).  It was patently insufficient to argue that “the court’s blanket policy is ‘rationally related’ to privacy interests of criminal defendants.”  Id.

In O'Keefe v. Chisholm, sealed documents gathered during “John Doe” criminal proceeding in state court were filed under seal in federal court; denying a motion for access, the Court held, as a matter of federalism, that 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.”  769 F.3d 936, 943 (7th Cir. 2014).

There appears to be no Eighth Circuit case law discussing other relevant criminal court records issues.

Remote electronic access to certain criminal court records may be obtained through the Alacourt system, as discussed above.

Federal Local Criminal Rule 56.1, applicable to the U.S. District Court for Alaska provides, “Unless otherwise provided by law, all criminal proceedings, including related documents and exhibits, and any record made thereof, not otherwise required to remain confidential, are accessible to the public.”

Alaska Administrative Rules 37.5 through 37.8 state that records are presumptively open to the public, subject to specified exceptions and restrictions.  They do not generally differentiate between the openness of civil and criminal records and are addressed in more detail in subsection VI.I below (Access to civil court records/Other civil court records issues).

There are eleven enumerated exceptions in Alaska Admin. R. 40(a), pursuant to which a case might be excluded from the public index, including 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.

Alaska Admin. R. 37.8 addresses “Electronic Case Information,” and cites specifically the information that will not be made available to the public in electronic form. This information includes contact information for parties and witnesses, names and information for victims in criminal cases, social security numbers, driver license numbers, banking account numbers, names of minor children in domestic relations cases, and juror information.

Although Arizona’s public records law generally creates a presumption in favor of disclosure, the burden shifts to the requestor seeking to obtain the information if the record “visually depicts the image of a witness under eighteen years of age or a victim” as defined by Ariz. Rev. Stat. § 13-4401.  See Ariz. Rev. Stat. § 39-121.04(A).  To meet this burden, the requestor must show that “the public’s interest in disclosure outweighs the witness’s or victim’s right to privacy.”  Id.

The common law right of access to judicial records is not absolute. Nixon, 435 U.S. at 598; In re Applications of Kansas City Star, 666 F.2d 1168, 1176 (8th Cir. 1981). The decision as to access is one best left to the sound discretion of the trial court, which will exercise discretion in light of the relevant facts and circumstances of the particular case.” Nixon, 435 U.S. at 599.

California’s right of access extends to records on payment to a defendant’s public attorney. See Copley Press Inc. v. Superior Court, No. D041072, 2003 WL 21055100, *4 (Cal. Ct. App. 2003) (unpublished).

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.

In 2014 and 2015, the District of Columbia legalized the possession of small amounts of marijuana for personal use.  Legalization of Possession of Minimal Amounts of Marijuana for Personal Use Initiative of 2014, 62 D.C. Reg. 880 (Jan. 23, 2015), codified at D.C. Code § 48-904.01(a)(1). That same year, the District enacted legislation allowing for the sealing of criminal records related to now-legalized offenses. Record Sealing for Decriminalized and Legalized Offenses Act of 2014, codified at D.C. Code § 16-803.02. This provision has not yet been challenged in federal court. However, the Court of Appeals for the District of Columbia remanded for reconsideration a denied request to seal court proceedings and arrest records for possession of PCP and marijuana in 1983. Washington v. United States, --- A.3d ---, 2019 WL 1811705 (D.C. Apr. 25, 2019). While the Court of Appeals agreed that the appellant had no right to seal the records related to his PCP charge, the trial court was asked to reconsider sealing records of the accompanying marijuana-possession arrest and charge.  Id.  This is a new area of law in the District of Columbia and could give rise to additional sealing of historic records in the future.

Federal courts in D.C. have addressed a range of other issues relating to access to records in criminal matters. See United States v. Brice, 649 F.3d 793 (D.C. Cir. 2011) (finding no public right of access under the First Amendment or the common law to material witness proceedings, at least where those records contained sensitive and private information concerning underage victims); United States v. El-Sayegh, 131 F.3d 158 (D.C. Cir. 1997) (finding no public right of access, under either the First Amendment or the common law, to an unconsummated plea agreement that was submitted to the court before the plea was offered); In re Pierce, 102 F.3d 1264 (D.C. Cir. 1996) (per curiam) (denying motion of unindicted subject of independent counsel’s investigation to file application for attorneys’ fees under seal); Washington Post v. Robinson, 935 F.2d 282, 289 (D.C. Cir. 1991) (holding that there is generally a public right of access under the First Amendment to plea agreements, and setting forth the procedures that must be followed if a court is to seal the plea agreement, including providing interested persons notice and an opportunity to be heard);  In re Application of Nat’l Broad. Co., 653 F.2d 609, 614-16, 620 (D.C. Cir. 1981) (reversing, on the basis of the common law right of access to judicial records, a trial court’s order denying broadcasters’ request to copy video and audiotapes introduced into evidence at a criminal trial, but permitting on remand innocent third parties mentioned on the tapes to file objections to the release of portions of the tapes); United States v. Slough, 677 F. Supp. 2d 296, 299 (D.D.C. 2010) (maintaining under seal records related to Kastigar hearing resulting in dismissal of indictment, at least until government’s time to appeal ruling had run, citing the risk of “prejudicial juror and witness taint” from the dissemination of tainted evidence); United States v. Duran, 884 F. Supp. 526 (D.D.C. 1995) (holding in abeyance media’s motion for access to a letter written by the defendant that was seized by the government, pending resolution of the defendant’s motion to suppress the evidence); Application of Wash. Post Co., 576 F. Supp. 76, 79-80 (D.D.C. 1983) (denying application to unseal portions of transcripts of three bench conferences held during an ongoing criminal trial, whose contents “would in all probability have a prejudicial effect on the jurors and witnesses,” but holding that the transcripts would be automatically unsealed upon the return of the jury’s verdict).

E-filing is authorized by the Florida Supreme Court on a circuit-by-circuit basis.

Digital recordings of court proceedings are accessible public court records in Florida.

At least one appellate court has supported a journalist’s ability to live blog during a high profile criminal trial in Duval County (Jacksonville, Florida). See Morris Publ’g Co. v. State, No. 1D10-226, 2010 WL 363318 (Fla. 1st DCA Jan. 20, 2010).

All criminal court records are presumptively open to the press and public. See Rule 21, Uniform Superior Court Rules (“all court records are public and are to be available for public inspection unless public access is limited by law or by the procedure set forth”).

In Oahu Publ’ns Inc. v. Takase State, 139 Hawai‘i 236, 386 P.3d 873 (2016), the Hawai‘i Supreme Court was confronted with the issue of what should be done when “personal information has been impermissibly included in a publicly accessible court filing.”  139 Hawai‘i at 245, 386 P.3d at 882.  In question was an application for judicial determination of probable cause that contained “the full name and residential address” of a minor, “as well as the full social security numbers of individuals depicted in a photographic lineup.”  Id. at 239, 386 P.3d at 876.  The Court emphasized the importance of “protecting the safety and security of personal identifying information and ensuring the privacy of complainants, minors, and others,” and thus, outlined that any party or person who discovers the error “must take immediate steps to effectuate the sealing of the document or of the offending content.” Id. at 246, 386 P.3d at 883.  Because of the sensitive nature, “such immediacy may require the court to give notice and conduct a hearing after sealing a document.”  Id. (emphasis in original).  The Court also noted that “the sealing should be narrowly tailored so that those portions of the filing containing non-personal information remain in the public record.”  Id.

None.

There appears to be no reported Illinois case law on this issue.

Indiana Code Section 11-8-8-7 requires sex offenders to register with the state. The Indiana Sheriffs’ Association maintains the searchable Indiana Sex and Violent Offender Registry at http://www.icrimewatch.net/indiana.php.

Indiana Administrative Rule 9(G)(2)(g) mandates that information identifying witnesses or victims in criminal, domestic violence, stalking, sexual assault, and juvenile proceedings shall be excluded from public record. However, names, addresses, phone numbers, and dates of birth are not excluded, except that juveniles who are the victims of sex crimes shall only be identifiable by initials.

Currently, Iowa does not have a general expungement statute. In Dep’t of Pub. Safety, Div. of Criminal Investigation v. Iowa Dist. Court, the Iowa Supreme Court held that district courts do not have authority to order state criminal justice agencies to expunge criminal history information relating to a dismissed criminal case from their computer systems. 801 N.W.2d 544, 548 (Iowa 2011). In Judicial Branch, State Court Adm'r v. Iowa Dist. Court, the Iowa Supreme Court held that criminal history data relating to a dismissed case or charges is not subject to removal from the statewide computerized docket system. 800 N.W.2d 569, 573-78 (Iowa 2011).

However, expungement of records may be granted for several reasons. In 2015, the Iowa Legislature passed Iowa Code § 901C.2, which provides in relevant part that:

[T]he court shall enter an order expunging the record of such criminal case if the court finds that the defendant has established . . . (1) The criminal case contains one or more criminal charges in which acquittal was entered for all criminal charges, or in which all criminal charges were otherwise dismissed.

Iowa Code § 901C.2(1)(a)(1) (2017); State v. Doe, 903 N.W.2d 347, 350 (Iowa 2017). The statute sets out four additional conditions which must be met before expungement can be granted. Iowa Code § 901C.2. In State v. Doe, the Iowa Supreme Court held that “case,” as it is used here, refers to a numbered legal proceeding. 903 N.W.2d at 351. The expungement process is triggered by an application filed by the defendant, the prosecutor, or the court. The following conditions must be met: a judgment of acquittal must be entered or the charges must be dismissed; all court costs and other fees must be paid; 180 days has expired since the acquittal or dismissal; the acquittal cannot be premised upon a finding of insanity; and the defendant cannot have been found incompetent. Iowa Code § 901C.2; see also State v. Doe, 927 N.W.2d 656, 666 (Iowa 2019) (holding that there is no constitutional right to expunge one’s criminal record and that the requirement that an individual pay all court costs and fees did not violate the Equal Protection Clauses of the Iowa or United States Constitutions).

Records of a disciplinary proceeding of an inmate must also be expunged under Disciplinary Policy and Procedures if an inmate allegedly violated a rule but the alleged rule violation was not adjudicated in accordance with the Disciplinary Policy and Procedures manual. Hrbek v. State, 478 N.W.2d 617 (Iowa 1991). When the disciplinary board fails to grant a hearing, an inmate, under the prison’s own rules, is entitled to “expungement of any record regarding his alleged typing offenses, not rehearing.” Id. at 620. This expungement rule “does not apply to insubstantial and nonprejudicial errors.” Poyner v. Iowa District Court, Nos. 0-460, 99-0787, 2000 WL 1724528, at *3 (Iowa Ct. App. Nov. 20, 2000) (citing Goodwin v. State, 585 N.W.2d 749, 751 (Iowa Ct. App. 1998)).

Some child abuse reports may also be expunged. The Iowa Supreme Court has held that a juvenile court has discretion under Iowa Code 235A.18(2) to grant parents a hearing concerning expungement of information from the central registry. In re A.J., 821 N.W.2d 280, 284–85 (Iowa Ct. App. 2012). Under Iowa Code 235A.18, data sealed in accordance with the section shall be expunged after eight years, unless the data involves child abuse as defined in Iowa Code § 232.68(2)(a)(3) or (2)(a)(5), in which case it shall not be expunged for 30 years. Iowa Code 235A.18 discusses data “relating to a particular case of alleged abuse which has been determined to be founded child abuse and placed in the central registry . . . .” Data can only be sealed ten years after the initial report was created, and only if the individual had no subsequent convictions of child abuse. Id. Iowa Code § 232.68(2)(a)(3) discusses a person who is responsible for the care of the child or resides is the same home as the child. Iowa Code § 232.68(2)(a)(5) discusses “[t]he acts or omissions of a person responsible for the care of the child which allow, permit, or encourage the child to engage in [prohibited] acts . . . .”

Similarly, unfounded dependent adult abuse reports that were “rejected for evaluation, assessment, or disposition for failure to meet the definition of dependent adult abuse shall be expunged” after three years. Iowa Code § 235B.9(2). “Dependent adult abuse information which [was] determined by a preponderance of the evidence to be unfounded shall be expunged” after five years. Id.

Lastly, Iowa Code § 123.46(6) allows a public intoxication record to be expunged if, after two years following conviction, the individual received no further convictions. The Iowa Court of Appeals has held that expungement will not be granted if the individual received a public intoxication, third offense conviction where that conviction was expunged. State v. Shepherd, No. 15-1341, 2016 WL 4051865, at *1 (Iowa Ct. App. July 27, 2016).

Until a record has been expunged, it can be used for impeachment purposes. State v. Birth, 604 N.W.2d 664, 665 (Iowa 2000). Expungement is not possible for a deferred judgment until probation has been completed. Iowa Code § 907.9 (2018). After probation is completed, if a judgment was deferred,

the court’s criminal record with reference to the deferred judgment, any counts dismissed by the court, which were contained in the indictment, information, or complaint that resulted in the deferred judgment, and any other related charges that were not contained in the indictment, information, or complaint but were dismissed, shall be expunged.

Id. To have a record expunged, the person must pay all financial obligations from the case that included the deferred judgment. Id. Where financial liability arose from the proceeding (e.g., fines, costs, or restitution), the related charge shall not be expunged until the amount payable is discharged. Id.

Procedures for gaining access to court records are based on the Kansas Open Records Act (KORA), K.S.A. 45-215–223.  Procedures set forth in K.S.A. 45-220 provide that a public agency may require that records requests be submitted in writing.  A form for requesting records is available online from the Kanas Judicial Branch.  See Request Form for Court Records, http://www.kscourts.org/appellate-clerk/general/open-records-act/KORARequestForm.pdf.

Under KORA, records that need not be disclosed include those that: are privileged under the rules of evidence; would reveal the identity of any undercover agent or any informant reporting a specific violation of law; are about criminal investigations, although a court may order disclosure if it would serve the public interest and meet certain other conditions; are software programs for electronic data processing, although a registry must be available about the nature of computerized information; are the work product of an attorney; identify an inmate of a correctional inmate, with certain exceptions and that may be an invasion of personal privacy if disclosed.  See generally K.S.A. 45-221.  KORA also includes an exemption for records that are protected from disclosure by other state statutes, federal law, or rule of the Kansas Supreme Court.  K.S.A. 45-221(a)(1).

If records are in audio/visual form, a person may claim a right to inspect them under KORA.  K.S.A. 218(a).  However, KORA does not require officials to make copies of “radio or recording tapes or discs, video tapes or films, pictures, slides, graphics, illustrations or similar audio or visual items or devices,” unless the materials were shown publicly and are not subject to copyright protection.  K.S.A. 45-219(a).

In 2019, the Kansas Supreme Court adopted Rules Relating to Kansas eCourt, contained in eCourt rules 20, 21, 22, 23, and 24.  See http://www.kscourts.org/rules/eCourt.asp.  The rules apply to all cases in district court, civil and criminal.  “The Kansas Supreme Court has developed a centralized case management system that maintains case records of the Kansas judicial branch.”  Rule 20.  “Unless otherwise indicated, these rules apply to courts as the Kansas eCourt case management system is implemented.”  Id.  “A request for documents is subject to the Kansas Open Records Act, K.S.A. 45-215 et seq., and other statutes, caselaw, Supreme Court rules, and court orders.”  Rule 22.

Kentucky’s state trial courts are transitioning to electronic filing and electronic access to court records.  Electronic filing is not yet mandatory.  Attorneys in Kentucky who are registered to file electronically have access to the electronically-filed court records in Kentucky’s trial courts.  The general public does not (yet) have such access.  However, criminal dockets are available online at http://kcoj.kycourts.net/dockets.  Kentucky’s state court proceedings have all been recorded audio-visually (in lieu of court reporters making written transcripts) since the 1990s, and those video recordings are publicly available in the same manner as other court records.

Electronic access to records varies from judicial district to judicial district. This page on the Louisiana Supreme Court’s website provides addresses and telephone numbers for all clerks of court as well as links to those clerk’s offices that have websites:   https://www.laclerksofcourt.org/clerks-of-court.

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, sometimes including images of documents, is available only with a paid subscription.

For New Orleans, the “Inmate Query” page of the Criminal Sheriff’s website provides access to booking information, including mugshots, for persons arrested and in custody in Orleans Parish:

http://www.opcso.org/index.php?option=com_wrapper&view=wrapper&Itemid=785

The “Docket Master” page of the Criminal Sheriff’s website provides access to criminal court dockets in Orleans Parish:

http://www.opcso.org/index.php?option=com_wrapper&view=wrapper&Itemid=738

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.

Medical information is “universally presumed to be private, not public.” Kravetz, 706 F.3d at 63.

Maine has contracted to implement an electronic filing system.  New rules will address remote public electronic access to criminal (and civil) court records.

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).

The Criminal Offender Record Information Act (“CORI Act”) governs the centralized collection of, and access to, criminal record information in Massachusetts. See generally Mass. Gen. Laws ch. 6, §§ 167–178L (significantly amended in 2010 and 2014); Chris Skall, Journey Out of Neverland: CORI Reform, Commonwealth v. Peter Pon, and Massachusetts’s Emergence As A National Exemplar for Criminal Record Sealing, 57 B.C. L. Rev. 337 (2016).

Records from closed criminal proceedings that result in dismissal or an entry of nolle prosequi are subject to a common law—but not First Amendment—right of access and may be sealed where good cause justifies overriding the general principle of publicity. Commonwealth v. Pon, 14 N.E.3d 182, 196–97 (Mass. 2014). In these circumstances, the court will conduct a “good cause” balancing test to determine whether sealing the records is appropriate, and because only a common law presumption of access applies to such records, “the weight of the scales is more balanced [than when the First Amendment is implicated], and the burden on the defendant somewhat lessened.” Id. at 197–98.

Generally, criminal case files relating to juvenile criminal records are public unless the file is considered a confidential file. M.C.R. 3.925(D)(2). Confidential files include diversion records of a minor, testimony taken during a closed proceeding, biometric data, reports of sexually motivated crimes, among other things. M.C.R. 3.903(3). However, confidential records can be obtained if a party shows a legitimate interest. People v. Wells, No. 254766, 2005 WL 2675177 (Mich. Ct. App. Oct. 20, 2005). A legitimate interest may be shown if a party wants to review his or her own file to determine if rights were violated during waiver proceedings if the party cannot remember the details of the proceedings due to illness. In re F.G., 264 Mich. App. 413, 420 (2004).

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.

However, in In re Application of KSTP, 504 F. Supp. 360 (D. Minn. 1980), a federal court held that a television station did not have a right to access or copy portions of videotapes that were taken by a kidnapper/rapist of his victim, even though the videotapes were introduced as evidence at trial. The court based its decision on the availability to the press of tape transcripts and its finding that any public interest that access to the tapes would serve was outweighed by the victim’s right to privacy.

The Missouri Supreme Court has held that the First Amendment does not “guarantee[] the public and the news media access to an investigative proceeding whose purpose is to determine whether there is probable cause that a non-criminal violation of the campaign finance disclosure law occurred.”  Geier v. Mo. Ethics Comm’n, 474 S.W.3d 560, 571 (Mo. 2015).

Youth court records are open until the youth turns 21, and then the file is sealed.

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

In contemplating requests to inspect public records pursuant to the Inspection of Public Records Act, New Mexico courts have found that “[n]othing in the plain language of IPRA authorizes a blanket denial of public access to records, express or implied, solely because those records are the subject of an ongoing criminal investigation.” Noll v. N.M. Dep't of Pub. Safety, No. A-1-CA-35981, 2019 WL 1615040, at *6 (N.M. Ct. App. Mar. 19, 2019). Rather, “the Legislature explicitly mandated that custodians separate exempt information from nonexempt information so that any and all nonexempt information can be made available for inspection.” Id.

While “[t]here is no statute, rule, or constitutional provision that provides for the expungement of an adult's felony record in New Mexico, Stump v. Albuquerque Police Dep't, No. S-1-SC-35912, 2017 WL 1090982, at *2 (N.M. Mar. 23, 2017), New Mexico courts have acknowledged the “inherent power” of the district courts to expunge criminal records. See, e.g., Stump, at *3; State v. Ring, No. 31,852, 2013 WL 5309899, at *4 (N.M. Ct. App. Aug. 27, 2013).

In 2016, North Dakota approved a constitutional victims’ rights amendment known as “Marsy’s Law.”  Marsy’s Law is included in the North Dakota Constitution at Section 25, and includes a sweeping list of rights for victims of crimes. These rights include a right to privacy, and a right “to prevent the disclosure of information or records that could be used to locate or harass the victim or the victim’s family, or which could disclose confidential or privileged information about the victim, and to be notified of any request for such information or records.” The contours and effects of Marsy’s Law on the rights to criminal information are unknown, and speculation by scholars on the issue is divided as to how exactly Marsy’s Law will affect public access rights.

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).  Many trial courts and appellate courts allow online access to court dockets in criminal and civil cases.

In Nichols v. Jackson, 2002 OK 65, 55 P.3d 1044, the defendant in the state prosecution arising from the Oklahoma City bombing in 1995 asked the court to seal all records regarding the fees and expenses paid to his court-appointed counsel.  The court allowed selective sealing of those pretrial records that would tend to reveal defense strategy (such as specific travel destinations, fees paid to prospective expert witnesses, etc.) but required all other records of expenditures to be open to the public.

The Oregon Supreme Court has held that the First Amendment does not provide for public access to jury pool records, though the question was not analyzed under the Oregon Constitution. See Jury Serv. Res. Ctr. v. De Muniz, 340 Or. 423, 435, 134 P.2d 948, 954 (2006) (analyzing the protection provided by the First Amendment).

In general, records in criminal cases are accessible to the public. The Pennsylvania Supreme Court has adopted a policy governing access to case records, including criminal 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; and
• information to which access is otherwise restricted by federal law, state law, or state court rule.

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, witnesses, or victims in criminal cases.

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.

There is not a public right of access to most proceedings involving minors, including when a child is charged with a summary offense.  See 42 Pa. Cons. Stat. § 6336(d), (e) & (g); § 6303(c).

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.

Magistrate courts will likely have a harder time locating files because of sheer volume of records and expungement.

The Unified Judicial System court records rule, S.D. Codified Laws § 15-15A, generally permits copying and remote electronic access to available records. See S.D. Codified Laws § 15-15A-5. However, limitations may be imposed. See S.D. Codified Laws § 15-15A-6.

In Knoxville News-Sentinel v. Huskey, 982 S.W.2d 359 (Tenn. Crim. App. 1998), a newspaper sought to access to sealed records of applications for “attorneys fees and expenses, including money for the payment of expert witnesses assisting” in the defense of an indigent criminal defendant.  Id. at 360-61.  The Court of Criminal Appeals affirmed the trial court’s decision, which permitted access to “’barebones’ information,” Id. at 363, including “the summary cover sheets setting forth the total amount paid to defense counsel,” “the total amount paid to experts or for expert services,” and “[i]f a particular expert has offered evidence in the case and is known to the public through on the record proceedings then the total amount paid to those individual experts will be disclosed,” Id. at 361.  But the “detailed time sheets and detailed expense sheets,” the “motions requesting expert services and the orders authorizing those services,” and “the detailed time sheets of the authorized experts” were to be sealed until the conclusion of the underlying cases.  Id.  The court held that this balance between protecting “[d]ocuments that might reveal defense strategies or the identities of previously undisclosed expert” and making public “total amounts authorized and expended in the defense of this case” struck the proper balance between the competing rights of public access and the criminal defendant.  Id. at 363.

Nothing further to report.

The Utah Supreme Court has held that a letter containing inculpatory evidence sent by an inmate housed in a cell adjoining the defendant’s cell to the trial court during the pendency of the defendant’s murder case was a “court record” to which there was a presumptive right of public access under Rule 4-202.02 of the Utah Code of Judicial Administration.  State v. Allgier, 2011 UT 47, ¶¶ 4, 9-13, 258 P.3d 589.  Under Rule 4-202.02, the court reasoned, “‘[c]ourt records are public unless otherwise classified by this rule,’” id. ¶ 10 (quoting Utah Code Jud. Admin. 4-202.02(1)), and the defined term “‘court records’ includes ‘case files,’ ‘books,’ ‘letters, documents, [or] papers’ that are ‘prepared, owned, received, or retained by a court of the administrative office of the courts.’”  Id. ¶ 10 (quoting Utah Code Jud. Admin. 4–202.02(2)) (alteration in original).  Accordingly, because the trial court “both received the . . . Letter and retained it in [the defendant’s] case file,” that was the end of the analysis—it was a public record.  Id. ¶12.  It did not have to be “filed by a party or recognized intervener,” because there is no such requirement, either express or implied, in the rule, and the court “refuse[d] to infer substantive terms into the text.’” Id. (internal quotations omitted).

Vermont Rule of Criminal Procedure 53.1 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.Cr.P. Rule 53.1(f).

The Vermont Rules for Public Access to Court Records contain an exception to the general right of public access for “[r]ecords of criminal proceedings involving participants in an adult diversion program sealed pursuant to 3 V.S.A. § 164(e).”  Vt. Pub. Acc. Ct. Rec. Rule 6(b)(27).  The adult diversion program was created “[t]o assist adults who have been charged with a first or a second misdemeanor or a first nonviolent felony” and to “assist adults with substance abuse or mental health treatment needs regardless of the person’s prior criminal history record.” 3 V.S.A. § 164(b).

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).

Records in the West Virginia domestic violence database are not open to public inspection. W. Va. Code § 51-1-21, http://www.wvlegislature.gov/WVCODE/ChapterEntire.cfm?chap=51&art=1&section=21#1. The West Virginia domestic violence database contains information and records the West Virginia Supreme Court deems necessary for the service and enforcement of domestic violence protective orders. Domestic Violence Registry, W. Va. Judiciary, http://www.courtswv.gov/public-resources/domestic/domestic-violence-registry.html.

All court records and information in child abuse and neglect proceedings are confidential except as otherwise provided in W. Va. Code § 49-5-101, http://www.wvlegislature.gov/WVCODE/code.cfm?chap=49&art=5#01, and W. Va. R. Child Abuse & Neglect Proc. 6a, http://www.courtswv.gov/legal-community/court-rules/child-abuse/abuse-1-25.html#rule6a.

Wyoming has no specific case law regarding the copying of audiovisual records.