J. Other criminal court records issues
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 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).
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).
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.
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.
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.