1st Circuit
Author
Sigmund D. Schutz, Esq.
Preti Flaherty LLP
One City Center
P.O. Box 9546
Portland, ME 04112-9546
207.791.3000
sschutz@preti.com
www.preti.com
Last updated Nov. 6, 2019
CompareOpen Courts Compendium
CompareI. Introduction: Access rights in the jurisdiction
In the First Circuit it is well established that there are “two related but distinct presumptions of public access to judicial proceedings and records,” under both the common-law right and the First and Fourteenth Amendments. United States v. Kravetz, 706 F.3d 47, 52 (1st Cir. 2013). The First Circuit applies the logic and experience test in determining “if a constitutional right of access applies” – whether the materials were traditionally accessible to the public and whether public access would play a “significant positive role.” In re Boston Herald, Inc., 321 F.3d 174, 182 (1st Cir. 2003). The First Circuit has also recognized access rights grounded in applicable court rules of procedure, which in some instances provide for access even where the common law or the First Amendment do not.
CompareA. The roots of access rights
The roots of public access to court proceedings and records lie in “democratic values of accountability and openness.” In re Globe Newspaper, 920 F.2d 88, 98 (1st Cir. 1990) (“[T]he prospect of criminal justice being routinely meted out by unknown persons does not comport with democratic values of accountability and openness.”). The public has a right to a “full understanding” of criminal proceedings, thereby placing the populace in a position “to serve as an effective check on the system.” In re Providence Journal Co., 293 F.3d 1, 10 (1st Cir. 2002). The First Circuit has “long recognized ‘that public monitoring of the judicial system fosters the important values of quality, honesty and respect for our legal system.’” Id. at 9; see also Siedle v. Putnam Inv., Inc., 147 F.3d 7, 10 (1st Cir. 1998) (same).
In addition, “[t]he appropriateness of making court files accessible is accentuated in cases where the government is a party: in such circumstances, the public’s right to know what the executive branch is about coalesces with the concomitant right of the citizenry to appraise the judicial branch.” FTC v. Standard Fin. Mgmt. Corp., 830 F.2d 404, 410 (1st Cir. 1987). There is a particular “societal interest” in public access to judicial records in cases involving challenges to state law on constitutional grounds. Nat'l Org. for Marriage v. McKee, 2010 U.S. Dist. LEXIS 90749, *19 (D. Me. Aug. 24, 2010).
The public’s right of access to judicial records is “vibrant” (Siedle, 147 F.3d at 10) and “strong and sturdy” (FTC, 830 F.2d at 410), but it is not absolute. “Important countervailing interests can, in given instances, overwhelm the usual presumption and defeat access. It follows that when a party requests a seal order, or . . . objects to an unsealing order, a court must carefully balance the competing interests that are at stake in the particular case.” Siedle, 147 F.3d at 10. However, “The citizens’ right to know is not lightly to be deflected. We agree . . . that ‘only the most compelling reasons can justify non-disclosure of judicial records.’” FTC, 830 F.2d at 410.
CompareB. Overcoming a presumption of openness
“[T]he presumption in favor of access can only be overcome ‘by an overriding interest based on findings that closure is essential to preserve higher values and is narrowly tailored to serve that interest.’” In re Providence Journal Co., 293 F.3d 1, 11 (1st Cir. 2002) (quoting Press-Enterprise Co. v. Super. Ct., 464 U.S.501, 510 (1984)).
The First Circuit has referred to the “presumptively paramount right of the public to know” the content of judicial records and has said that it may be overcome for “only the most compelling reasons.” Fed. Trade Comm’n. v. Standard Fin. Mgmt. Corp., 830 F.2d 404, 408 n.4, 410 (1st Cir. 1987); see also United States v. Kravetz, 706 F.3d 47, 59 (1st Cir. 2013).
The balance must be struck “in light of the relevant facts and circumstances of the particular case. The objectors—those seeking to keep the datum hidden from view— “must carry the devoir of persuasion.” Standard Fin. Mgmt. Corp., 830 F.2d at 410–11.
A lesser “good cause” standard applies to the entry of protective orders in civil cases, but nonetheless, “[a] finding of good cause [for protective orders] must be based on a particular factual demonstration of potential harm, not on conclusory statements.” Anderson v. Cryovac Inc., 805 F.2d 1, 7 (1st Cir. 1986).
CompareC. Procedural prerequisites to closure
Where a presumption of access applies, courts must make specific, on the record findings that the closure is necessary. Press-Enterprise Co. v. Superior Court (Press-Enterprise II), 478 U.S. 1, 13-14 (1986). The “inquiry requires specific findings; the First Amendment right of public access is too precious to be foreclosed by conclusory assertion or unsupported speculation.” In re Providence Journal Co., 293 F.3d 1, 13 (1st Cir. 2002).
The public should receive notice of sealed proceedings and records. “It is axiomatic that protection of the right of access suggests that the public be informed of attempted incursions on that right. Providing the public with notice ensures that the concerns of those affected by a closure decision are fully considered.” United States v. Kravetz, 706 F.3d 47, 59 (1st Cir. 2013).
The First Circuit has identified multiple necessary procedural safeguards protecting access in an opinion addressing whether “a trial court, in a particular case, can adopt a procedure that reverses the presumption of public access and automatically seals all subsequent filings until the judge determines that a specific document poses no undue risk to the defendant’s fair trial rights.” In re Providence Journal Co., 293 F.3d 1, 14 (1st Cir. 2002) (emphasis in original). The court found that doing so was not reversible error, so long as the procedure incorporates several safeguards to ensure that access is timely:
First, where, as here, a court undertakes to screen documents before they are placed in the case file, the procedure should incorporate a specific timetable obligating the court to perform its self-imposed screening responsibilities promptly and to render a timely decision as to whether a particular document is fit for public disclosure. Second, and relatedly, the court below decided to refrain from reviewing each individual memorandum to decide whether it could be made available to the public until after the time had expired for the submission of any possible reply memorandum. This unnecessarily prolongs the process. Each individual memorandum either contains restricted information (in which case it is subject to redaction or sealing) or it does not (in which case it does not pose a threat to the defendants’ Sixth Amendment rights). Third, the order contains no provision as to whether the court intends to unseal retained memoranda at some point after the trial has ended (and if so, when).
Id. at 15.
The First Circuit also required that the trial court’s sealing procedure incorporate a redact-and-release process. “Finally, we think that the district court’s refusal to consider redaction on a document-by-document basis is insupportable. Courts have an obligation to consider all reasonable alternatives to foreclosing the constitutional right of access. Redaction constitutes a time-tested means of minimizing any intrusion on that right.” Id. The First Circuit found fault in a generalized finding by the district court that references to confidential grand jury matters were “almost invariably dispersed throughout the memoranda and inextricably intertwined with the references to applicable legal authority.” Id. Instead, “the First Amendment requires consideration of the feasibility of redaction on a document-by-document basis, and the court’s blanket characterization falls well short of this benchmark.” Id.
CompareII. Procedure for asserting right of access to proceedings and records
CompareA. Media standing to challenge closure
The Supreme Court noted that the public and the press have a right to challenge closure of court records and proceedings, holding that “representatives of the press and general public ‘must be given an opportunity to be heard on the question of their exclusion.’” Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 609 n.25 (quoting Gannett Co. v. DePasquale, 443 U.S. 368, 401 (1979) (Powell, J., concurring)).
The First Circuit has routinely found that non-parties to a proceeding have a right to assert common law or constitutional access rights. In civil cases, non-parties have standing to intervene. Public Citizen v. Liggett Group, Inc., 858 F.2d 775, 783-84 (1st Cir. 1988) (intervention recognized as the procedurally correct course to challenge protective orders).
In high profile cases, the First Circuit has urged trial courts to take affirmative steps to afford interested parties an opportunity to be heard on the question of access. “Certainly, in a case in which public attention is quite high, a court deliberating about whether to restrict broadly public access to materials submitted in connection with criminal proceedings ordinarily ought to afford interested parties an opportunity to be heard on the question of impoundment.” In re Providence Journal, Inc., 293 F.3d 1, 13 (1st Cir. 2002).
CompareB. Procedure for requesting access in criminal cases
In criminal cases, the First Circuit has held that the proper mechanism to assert access rights is by filing a writ of mandamus under the All Writs Act “because the right of a non-party to intervene in a criminal proceeding is doubtful.” In re Globe Newspaper Co., 920 F.2d 88, 90 (1st Cir. 1990) (citation omitted); see also U.S. v. Chin, 913 F.3d 251, 255 (1st Cir. 2019).
CompareC. Procedure for requesting access in civil matters
The mechanism for third-party claims of access in civil cases is intervention under Federal Rule of Civil Procedure 24. See Pub. Citizen v. Liggett Grp., Inc., 858 F.2d 775, 783-84 (1st Cir. 1988) (“[I]ntervention is the procedurally correct course.”). “[W]here intervention is available (i.e. civil cases), it is an effective mechanism for third-party claims of access to information generated through judicial proceedings.” Id. In Public Citizen, the First Circuit held that the district court had erred by failing to grant a third-party Rule 24 intervenor status before acting on a motion for access to records subject to a protective order. Id.
CompareD. Obtaining review of initial court decisions
In criminal cases the proper mechanism to seek appellate review is by mandamus. United States v. Chin, 913 F.3d 251, 255 (1st Cir. 2019). The court reasoned that a mandamus petition posing “important questions bearing upon the constitutional and common-law rights of public access to judicial records in criminal proceedings” is “consonant with the historic use of mandamus as a means to check ostensible judicial usurpations of power.” Id.; see also In re Providence Journal Co., 293 F.3d 1, 9 (1st Cir. 2002). The court has also endorsed advisory mandamus review of a trial court’s “blanket nonfiling policy” whereby memoranda filed with the court in a criminal case were automatically sealed. Id. at 11.
The standard of review of a trial court order denying a claimed right of access under the common law is a “more rigorous than garden-variety abuse of discretion review” because the standard for denying access to such records is so high— “‘only the most compelling reasons can justify non-disclosure of judicial records’ that come within the scope of the common-law right of access.” In re Providence Journal Co., 293 F.3d 1, 10 (1st Cir. 2002). The common law presumption is “more easily overcome than the constitutional right of access; when the first amendment is not implicated, ‘the decision as to access is one best left to the sound discretion of the trial court, a discretion to be exercised in light of the relevant facts and circumstances of the particular case.’” Anderson v. Cryovac Inc., 805 F.2d 1, 13 (1st Cir. 1986) (quoting Nixon v. Warner Commc’ns, Inc., 435 U.S. 549, 599(1978)).
“On the other hand, constitutional access claims engender de novo review.” In re Providence Journal Co., 293 F.3d 1, 10. “The presumption in favor of access can only be overcome ‘by an overriding interest based on findings that closure is essential to preserve higher values and is narrowly tailored to serve that interest.’ This last requirement adds a new dimension and makes the First Amendment standard even more stringent than the common-law standard. Thus, courts have tended to employ the First Amendment standard in situations in which both rights of access are implicated.” Id.
CompareIII. Access to criminal proceedings
CompareA. In general
With few exceptions, criminal proceedings brought against adults are open to the public.
The Supreme Court consistently has recognized that the public and press have a presumptive First Amendment right of access to judicial proceedings in criminal cases. See Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 573 (1980) (plurality opinion) (“[A] presumption of openness inheres in the very nature of a criminal trial under our system of justice.”); Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 602‑03 (1982) (recognizing First Amendment access right and striking down statute that required “the exclusion of the press and general public during the testimony of a minor victim in a sex-offense trial”); Press-Enterprise Co. v. Superior Court (Press-Enterprise I), 464 U.S. 501, 505 (1984) (constitutional presumption of openness to voir dire proceedings); Press-Enterprise Co. v. Superior Court (Press-Enterprise II), 478 U.S. 1, 13 (1986) (recognizing right of access to preliminary hearings); El Vocero de Puerto Rico v. Puerto Rico, 508 U.S. 147, 149 (1993) (same); Waller v. Georgia, 467 U.S. 39, 47 (1984) (“[A]ny closure of a suppression hearing over the objections of the accused must meet the tests set out in Press-Enterprise and its predecessors.”).
Likewise, the First Circuit has held that under the First and Fourteenth Amendments, “the public and the press enjoy a constitutional right of access” to criminal proceedings, “most pretrial proceedings[,]” and “to documents and kindred materials submitted in connection with the prosecution and defense of criminal proceedings.” In re Providence Journal Co., 293 F.3d 1, 9 (1st Cir. 2002).
CompareB. Pretrial proceedings
The First Amendment right of access to criminal trials encompasses “most pretrial proceedings.” In re Providence Journal Co., Inc., 293 F.3d 1, 10 (1st Cir. 2002). “The courts of appeals have recognized a right of access to various pre-trial proceedings and the documents filed in regard to them, including, for example, suppression, due process, entrapment, and plea hearings.” United States v. Kravetz, 706 F.3d 47, 55, n.6 (1st Cir. 2013).
The First Circuit applied Press-Enterprise Co. v. Superior Court (Press-Enterprise II), 478 U.S. 1, 13 (1986) to hold unconstitutional a Puerto Rico rule closing preliminary hearings in criminal cases. Rivera Puig v. Garcia Rosario, 785 F. Supp. 278, 324–25 (1st Cir. 1992). Likewise, the First Amendment protects the public’s right to attend bail hearings because “the bail decision is one of major importance to the administration of justice, and openness will help to assure the public that the decision is properly reached.” In re Globe Newspaper, 729 F.2d at 52 (finding, however, that the accused’s right to a fair trial and privacy outweighed the public’s right of access).
When a court “considers whether to close a pretrial proceeding that would ordinarily be open to the public, it must meet three procedural requirements”: (1) allow members of the press and the public present at the time the closure motion is made the opportunity to be heard; (2) weigh the competing interests involved and consider reasonable alternatives to closure, stating on the record its reasons for rejecting these alternatives; (3) if it determines closure is necessary, it must draw the closure order as narrowly as possible in order to minimize the intrusion on the public’s First Amendment right to access. In re Globe Newspaper Co., 729 F.2d 47, 56 (1st Cir. 1984).
CompareC. Criminal trials
The Supreme Court has recognized that the constitutional presumption of access extends to trials themselves. In Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 573 (1980) (plurality opinion), the Court found that “a presumption of openness inheres in the very nature of a criminal trial under our system of justice.” In Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 602‑03 (1982), the Supreme Court recognized a First Amendment access right and struck down a statute that required “the exclusion of the press and general public during the testimony of a minor victim in a sex-offense trial.” It added that the presumption of public access “does not mean, however, that for purposes of this inquiry the court cannot protect the minor victim by denying these representatives the opportunity to confront or cross-examine the victim, or by denying them access to sensitive details concerning the victim and the victim’s future testimony. Such discretion is consistent with the traditional authority of trial judges to conduct in camera conferences.” Id. at 609 n.25.
Consistent with Supreme Court precedent, the First Circuit acknowledges “the public has a First Amendment right of access to criminal trials.” In re Globe Newspaper, 729 F.2d at 51.
CompareD. Post-trial proceedings
No reported First Circuit cases identified.
CompareE. Appellate proceedings
Appellate proceedings are public. In the First Circuit, the procedure for moving to seal court of appeals materials not already sealed in the district court is specified in Local Rule 11.0(c)(2). That rule provides, among other things, “A motion to seal, which should not itself be filed under seal, must explain the basis for sealing and specify the desired duration of the sealing order. If discussion of confidential material is necessary to support the motion to seal, that discussion shall be confined to an affidavit or declaration, which may be filed provisionally under seal.”
CompareIV. Access to criminal court records
CompareA. In general
With few exceptions, records related to the criminal prosecution of adults are open to the public.
The First Circuit has held that the public has both common-law rights of access to judicial records in criminal cases and a constitutional right of access “to documents and kindred materials submitted in connection with the prosecution and defense of criminal proceedings.” In re Providence Journal Co., 293 F.3d 1, 10 (1st Cir. 2002); see also Globe Newspaper Co. v. Pokaski, 86 F.2d 497, 502 (1st Cir. 1989). “Although the two rights of access are not coterminous, courts have employed much the same type of screen in evaluating their applicability to particular claims.” In re Providence Journal Co., 293 F.3d 1, 10 (1st Cir. 2002). Without access to such records a full understanding of judicial proceedings would be impossible, and the public would not be able to serve as a check the system. In re Globe Newspaper, 729 F.2d at 52.
CompareB. Arrest records
No reported First Circuit cases identified.
CompareC. Dockets
The First Circuit has suggested that docket entries, including a docket entry that a motion to seal has been filed, should generally be public. United States v. Kravetz, 706 F.3d 47, 59 (1st Cir. 2013). Access to docket information is important to afford the public with notice of sealed filings and therefore afford an opportunity to be heard. Id.
In addition, “a blanket restriction on access to the records of cases ending in an acquittal, a dismissal, a nolle prosequi, or a finding of no probable cause is unconstitutional.” Globe Newspaper Co. v. Pokaski, 868 F.2d 497, 510 (1st Cir. 1989).
CompareD. Warrants, wiretaps and related materials
No reported First Circuit cases identified.
CompareE. Discovery materials
In United States v. Kravetz, 706 F.3d 47, 53 (1st Cir. 2013) the First Circuit concluded that pre-trial subpoenas duces tecum and related motions (Federal Rule of Criminal Procedure 17(c) materials) “are not entitled to a presumption of access under either the First Amendment or the common law.” “[N]o presumptive right of public access, based either in the common law or the First Amendment, attaches to the Rule 17(c) subpoenas or the related documents filed in connection with the underlying criminal prosecution in this case. Consequently, access may be obtained only upon a showing of special need.” Id. at 56.
CompareF. Pretrial motions and records
“The courts of appeals have recognized a right of access to various pre-trial proceedings and the documents filed in regard to them, including, for example, suppression, due process, entrapment, and plea hearings.” United States v. Kravetz, 706 F.3d 47, 55, n.6 (1st Cir. 2013).
In criminal cases, “legal memoranda that parties are required to file in conjunction with motions” submitted to the trial court “constitute materials on which a court is meant to rely in determining the parties’ substantive rights” and therefore “are subject to both common-law and First Amendment rights of access.” In re Providence Journal Co., 293 F.3d 1, 11 (1st Cir. 2002).
CompareG. Trial records
The First Circuit has held that Nixon v. Warner Communications, Inc., 435 U.S. 589, 608–10 (1978) establishes that the constitutional right to attend criminal trials does not “confer the right to replicate evidentiary materials in the custody of the court.” In re Providence Journal Co., 293 F.3d 1, 16 (1st Cir. 2002). The common law does, however, afford such rights, i.e., to inspect judicial documents which encompass “materials on which a court relies in determining the litigants’ substantive rights.” Id. Access to trial exhibits, such as “videotapes and audiotapes” played at trial, are protected by this common law right. Id. However, in the unusual if not unique situation where only “selected excerpts” of tapes are played for the jury and no compilation of such excerpts is available without creating an entirely new record, the trial court had no obligation to create a new record containing such excerpts or to permit it to be copied. Id. at 17 (“We are reluctant to hold that the common-law right of access necessarily compels the creation (and, thus, the copying) of such materials. We prefer instead to leave this decision, like many other decisions as to how best to effectuate the common-law right of access, to the informed discretion of the trial court, so that it may be exercised with due regard for the idiosyncratic facts and circumstances of a specific case.”).
The First Circuit held that “a blanket restriction on access to the records of cases ending in an acquittal, a dismissal, a nolle prosequi, or a finding of no probable cause is unconstitutional.” Globe Newspaper Co. v. Pokaski, 868 F.2d 497, 510 (1st Cir. 1989).
CompareH. Post-trial records
In United States v. Kravetz, the First Circuit concluded that the public availability of sentencing memoranda and sentencing-related letters sent by third-parties directly to the district court are “judicial documents subject to the common law presumption of public access[,]” but reserved judgment as to whether a constitutional right of access attaches to those documents. 706 F.3d 47, 53, 57 (1st Cir. 2013).
CompareI. Appellate records
Appellate records are public. In the First Circuit, the procedure for moving to seal court of appeals materials not already sealed in the district court is specified in Local Rule 11.0(c)(2). That Rule provides, among other things, “A motion to seal, which should not itself be filed under seal, must explain the basis for sealing and specify the desired duration of the sealing order. If discussion of confidential material is necessary to support the motion to seal, that discussion shall be confined to an affidavit or declaration, which may be filed provisionally under seal.”
CompareJ. Other criminal court records issues
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).
CompareV. Access to civil proceedings
CompareA. In general
With few exceptions, federal civil proceedings are open to the public.
The Supreme Court has not directly addressed whether the public and the press have a constitutional right of access to civil proceedings, though a plurality found that “historically both civil and criminal trials have been presumptively open.” Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 580 n.17 (1980) (plurality opinion).
Federal court rules mandate openness. Fed. R. Civ. Proc. 77(b) provides that “[e]very trial on the merits must be conducted in open court and, so far as convenient, in a regular courtroom,” and Fed. R. Civ. Proc. 43(a) provides that in trials “the witnesses’ testimony must be taken in open court unless a federal statute, the Federal Rules of Evidence, these rules, or other rules adopted by the Supreme Court provide otherwise.”
CompareB. Pre-trial proceedings
No reported First Circuit cases identified.
CompareC. Trials
It is well established that the public has a right to attend civil trials and to access information presented at trial. See Poliquin v. Garden Way, 989 F.2d 527, 533 (1st Cir. 1993) (“[O]nly the most compelling showing can justify post-trial restriction on disclosure of testimony or documents actually introduced at trial.”). The public has a “presumptively paramount right . . . to know” the content of judicial records in civil cases, which may be overcome for “only the most compelling reasons.” Federal Trade Comm’n. v. Standard Fin. Mgmt. Corp., 830 F.2d 404, 408 n.4, 410 (1st Cir. 1987); In re Providence Journal Co., Inc., 293 F.3d 1, 13, n.5 (1st Cir. 2002) (“[T]he common-law right of access extends to judicial records in civil proceedings.”); cf Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 580 n.17 (1980) (plurality opinion) (“[H]istorically both civil and criminal trials have been presumptively open.”).
Court rules also mandate openness. For example, Fed. R. Civ. Proc. 77(b) provides that “[e]very trial on the merits must be conducted in open court and, so far as convenient, in a regular courtroom,” and Fed. R. Civ. Proc. 43(a) provides that “the witnesses’ testimony must be taken in open court unless a federal statute, the Federal Rules of Evidence, these rules, or other rules adopted by the Supreme Court provide otherwise.” Many states have similar rules codifying the presumption of access to civil trials.
CompareD. Post-trial proceedings
No reported First Circuit cases identified.
CompareE. Appellate proceedings
Appellate proceedings are public. In the First Circuit, the procedure for moving to seal court of appeals materials not already sealed in the district court is specified in Local Rule 11.0(c)(2). That Rule provides, among other things, “A motion to seal, which should not itself be filed under seal, must explain the basis for sealing and specify the desired duration of the sealing order. If discussion of confidential material is necessary to support the motion to seal, that discussion shall be confined to an affidavit or declaration, which may be filed provisionally under seal.”
CompareVI. Access to civil records
CompareA. In general
“The courts of this country recognize a general right to inspect and copy public records and documents, including judicial records and documents.” Nixon v. Warner Communications, Inc., 435 U.S. 589, 597 (1978) (footnote omitted).
The First Circuit has held that the “presumptively paramount right of the public to know” the content of judicial records in civil cases may be overcome for “only the most compelling reasons.” Federal Trade Comm’n. v. Standard Fin. Mgmt. Corp., 830 F.2d 404, 408 n.4, 410 (1st Cir. 1987); In re Providence Journal Co., Inc.,293 F.3d 1, 13, n.5 (1st Cir. 2002) (“[T]he common-law right of access extends to judicial records in civil proceedings.”).
“Decisions on the sealing of judicial documents require a balancing of interests, although the scales tilt decidedly toward transparency. The starting point must always be the common-law presumption in favor of public access to judicial records.” Nat’l Organization for Marriage v. McKee, 649 F.3d 34, 70 (1st Cir. 2011). “The presumption . . . favors openness, and a court need make no finding, let alone one of ‘true necessity,’ in order to make the proceedings and documents in a civil trial public. Instead, it is the party seeking to keep documents sealed who must make a showing sufficient to overcome the presumption of public access.” Id. at 71.
The First Circuit has ruled that “relevant documents, which are submitted to, and accepted by, a court of competent jurisdiction in the course of adjudicatory proceedings, become documents to which the presumption of public access applies.” Standard Fin. Mgmt. Corp., 830 F.2d at 409. “Once . . . submissions come to the attention of the district judge, they can fairly be assumed to play a role in the court’s deliberations.” Id. Whether the court actually relies on specific information submitted to it when making a decision does not matter for purposes of the presumption. See United States v. Kravetz, 706 F.3d 47, 58-59 (1st Cir. 2013). The First Circuit has “explicitly rejected an approach to public access that would turn on whether the documents at issue actually played a role in the court’s deliberations.” Id.
CompareB. Dockets
No reported First Circuit cases identified.
CompareC. Discovery materials
The First Circuit distinguishes between access rights to discovery under federal rules (public access is permitted absent a showing of good cause) and access rights to discovery (or, more accurately, the lack thereof) under the common law or First Amendment. Public Citizen, 858 F.2d at 788; United States v. Kravetz, 706 F.3d 47, 55 (1st Cir. 2013) (“[T]he public has no common law or constitutional right of access to materials that are gained through civil discovery but neither introduced as evidence at trial nor submitted to the court as documentation in support of motions or trial papers”).
Under Rule 26(c) the public has a presumptive right of access to discovery materials unless good cause for confidentiality is shown. Pub. Citizen v. Liggett Grp., Inc., 858 F.2d 775, 789 (1st Cir. 1988). The First Circuit quoted with approval the following language from a Second Circuit decision:
A plain reading of the language of Rule 26(c) demonstrates that the party seeking a protective order has the burden of showing that good cause exists for issuance of that order. It is equally apparent that the obverse also is true, i.e., if good cause is not shown, the discovery materials in question should not receive judicial protection and therefore would be open to the public for inspection. . . . Any other conclusion effectively would negate the good cause requirement of rule 26(c): Unless the public has a presumptive right of access to discovery materials, the party seeking to protect the materials would have no need for a judicial order since the public would not be allowed to examine the materials in any event.
Pub. Citizen, 858 F.2d at 789 (quoting In re "Agent Orange" Product Liability Litig., 821 F.2d 139, 145-46 (2d Cir. 1987)). “Rule 26(c)’s good cause requirement means that, ‘as a general proposition, pretrial discovery must take place in the public unless compelling reasons exist for denying the public access to the proceedings.’” Pub. Citizen, 858 F.2d at 789.
The First Circuit has concluded that “no right of access attaches to civil discovery motions themselves or materials filed with them.” United States v. Kravetz, 706 F.3d 47, 55 (1st Cir. 2013); see also Anderson v. Cryovac, Inc., 805 F.2d 1, 11-13 (1st Cir. 1986) (“There is no tradition of public access to discovery, and requiring a trial court to scrutinize carefully public claims of access would be incongruous with the goals of the discovery process. In view of these conclusions, we decline to extend to materials used only in discovery the common law presumption that the public may inspect judicial records.”).
CompareD. Pre-trial motions and records
The First Circuit has held that the common law protects public access to legal memoranda. In re Providence Journal Co., Inc., 293 F.3d 1, 13 n.5 (1st Cir. 2002). Motions filed in civil cases are generally public; “[l]itigation necessarily takes place in a public forum.” Sinclair v. Brill, 815 F. Supp. 44, 52 (D.N.H. 1993) (denying motion to seal motion for judgment on the pleadings).
CompareE. Trial records
It is well established that the public has a right to access information presented at civil trials. See Poliquin v. Garden Way, 989 F.2d 527, 533 (1st Cir. 1993) (“[O]nly the most compelling showing can justify post-trial restriction on disclosure of testimony or documents actually introduced at trial”). The public has a “presumptively paramount right of the public to know” the content of judicial records in civil cases, which may be overcome for “only the most compelling reasons.” Federal Trade Comm’n. v. Standard Fin. Mgmt. Corp., 830 F.2d 404, 408 n.4, 410 (1st Cir. 1987); In re Providence Journal Co., Inc., 293 F.3d 1, 13, n.5 (1st Cir. 2002) (“[T]he common-law right of access extends to judicial records in civil proceedings.”); cf Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 580 n.17 (1980) (plurality opinion) (“[H]istorically both civil and criminal trials have been presumptively open”).
CompareF. Settlement records
No reported First Circuit cases identified.
CompareG. Post-trial records
No reported First Circuit cases identified.
CompareH. Appellate records
Appellate records are public. In the First Circuit, the procedure for moving to seal court of appeals materials not already sealed in the district court is specified in Local Rule 11.0(c)(2). That Rule provides, among other things, “A motion to seal, which should not itself be filed under seal, must explain the basis for sealing and specify the desired duration of the sealing order. If discussion of confidential material is necessary to support the motion to seal, that discussion shall be confined to an affidavit or declaration, which may be filed provisionally under seal.”
CompareI. Other civil court records issues
No reported First Circuit cases identified.
CompareVII. Jury and grand jury access
CompareA. Access to voir dire
The Supreme Court recognized a First Amendment presumption of access to voir dire in Press-Enterprise Co. v. Superior Court (“Press-Enterprise I”), 464 U.S. 501 (1984). Despite the agreement of the parties, the Court found the closure of voir dire to the public was unconstitutional, noting that the “process of selection of jurors has presumptively been a public process” throughout Anglo-American history. Id. at 505; see also In re Globe Newspaper Co., 729 F.2d 47, 51 (1st Cir. 1984).
CompareB. Juror identities, questionnaires and other records
The Supreme Court addressed the right of access to voir dire transcripts, noting that in the unusual circumstance where voir dire must be held behind closed doors, “the constitutional values sought to be protected by holding open proceedings may be satisfied later by making a transcript of the closed proceedings available within a reasonable time, if the judge determines that disclosure can be accomplished while safeguarding the juror’s valid privacy interests.” Press-Enterprise Co. v. Superior Court (“Press-Enterprise I”), 464 U.S. 501, 512 (1984).
The First Circuit held that judges in the District of Massachusetts must release the names and home addresses of jurors after trial, absent exceptional circumstances justifying impoundment. In re Globe Newspaper Co., 920 F.2d 88 (1st Cir. 1990). The opinion was ostensibly based on the text of the Jury Plan for the District of Massachusetts, but it also drew heavily from the Supreme Court’s First Amendment access cases. Applying the “logic” test of Press-Enterprise II, 478 U.S. 1, 9 (1986), the court observed that post-trial interviews of jurors can reveal bias, root out misconduct, expose misconceptions, and otherwise improve the quality of the justice system. “In a democracy,” the court concluded, “criminal trials should not, as a rule, be decided by anonymous persons.” Id.
In United States v. Chin, 913 F.3d 251 (1st Cir. 2019), the First Circuit reaffirmed the public and media’s right of access to juror identities in the District of Massachusetts, established by In re Globe, notwithstanding the worries of some district judges about potential threats to juror privacy in the era of social media. The court held that in the District of Massachusetts trial courts must disclose juror names and home addresses post-trial absent “particularized findings” of “exceptional circumstances that were peculiar to the case” such as “a credible threat of jury tampering, a risk of personal harm to individual jurors, and other evils affecting the administration of justice.” Id. at 257.
With regard to timing, the court also held that any delay in releasing the jurors’ identities must be supported by findings of a threat to the judicial system, and that courts must promptly release jurors’ home addresses, in addition to names and hometowns, so that the press can identify and interview them. The court also held that In re Globe “requires that any delay in post-verdict disclosure be justified by the requisite ‘particularized findings.’” The First Circuit faulted the district court’s three-month delay (between the verdict and sentencing) because it “far outstrips” any “brief time period that could constitute an acceptable delay.” Id. at 261.
In response to the arguments that changes in technology justify a departure from In re Globe, which required public access to juror identities, the First Circuit acknowledged that In re Globe “was decided decades ago and thus well before the first tweet was tweeted.” Id. at 261. The court also accepted that “there is now a greater potential for the public release of a juror’s name, and, especially, a juror’s address, to be more intrusive and concerning than would have been the case in an era in which social media was unknown.” But the court concluded, “these technological changes have by no means diminished the need for accountability and transparency in our system of justice that In re Globe treats as relevant in construing the critical provision of the Jury Plan.” Id. The First Circuit described the competing interests this way:
The obligation of jury service is one of the most important that our government imposes on its citizens. It is, therefore, important to ensure that the fulfillment of this obligation is not made so burdensome that it becomes more than a citizen should have to bear. It is important to ensure as well, though, that our system of justice remains accountable to the broader public that it serves.
Id. at 262.
CompareC. Grand jury proceedings and records
“The public has no right to attend grand jury proceedings. . . . In contrast to criminal trials, grand jury proceedings have traditionally been closed to the public and the accused.” Globe Newspaper Co. v. Pokaski, 86 F.2d 497, 509 (1st Cir. 1989); see also In re Special Proceedings, 373 F.3d 37, 46-47 (1st Cir. 2004) (“There is no general right of public access to the proceedings of a grand jury or to documents generated by those proceedings.”). The First Circuit has recognized that documents “sealed as part of the investigation by a special prosecutor” engaged in efforts “sufficiently like what a grand jury” does are also presumptively closed to the public. 373 F.3d at 47.
Because there is no right to attend grand jury proceedings, the public “therefore has no right to grand jury records.” Globe Newspaper Co. v. Pokaski, 86 F.2d 497, 509 (1st Cir. 1989).
CompareD. Interviewing jurors
After trial has concluded, district courts in the First Circuit may allow the public access to information sufficient to identify and interview petit jurors. See United States v. Chin, 913 F.3d 251 (1st Cir. 2019). The identity of grand jurors is not public.
CompareVIII. Proceedings involving minors
CompareA. Delinquency
The First Circuit held that proceedings conducted pursuant to the federal Juvenile Delinquency Act may be closed only on a case-by-case basis, when necessary to preserve legitimate confidentiality interests and only after reasonable alternatives to closure have been considered. United States v. Three Juveniles, 61 F.3d 86, 86-87 (1st Cir. 1995) (“We hold that the Act authorizes, but does not mandate, closure of juvenile proceedings.”). The court held:
For these reasons, we hold that the Act does not mandate across-the-board closure for all juvenile proceedings, but merely authorizes closure, or any other measures designed to ensure confidentiality, to be determined on a case-by-case basis at the discretion of the district court. We think that this interpretation fully comports with the purpose and language of the statute as a whole, and is far preferable to a strained construction of the Act that mandates complete closure and thus triggers First Amendment concerns.
Id. at 92. The court declined to rule on whether a “common law right of access applies to juvenile court records.” Id. at 94 n.9.
CompareB. Dependency
No reported First Circuit cases identified.
CompareC. Other proceedings involving minors
No reported First Circuit cases identified.
CompareD. Prohibitions on photographing or identifying juveniles
Even where juvenile proceedings are closed, the Supreme Court has made clear that a court may not “punish the truthful publication of an alleged juvenile delinquent’s name lawfully obtained by a newspaper.” Smith v. Daily Mail Publ’g Co., 443 U.S. 97, 105-06 (1979). In Oklahoma Publishing Co. v. District Court, 430 U.S. 308, 308 (1977), the Court likewise reversed an order that “enjoined members of the news media from ‘publishing, broadcasting, or disseminating, in any manner, the name or picture of [a] minor child’ in connection with a juvenile proceeding involving that child then pending in that court.”
CompareE. Minor testimony in non-juvenile courts
In Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 607–08 (1982), the Supreme Court recognized a First Amendment access right and struck down a statute that required “the exclusion of the press and general public during the testimony of a minor victim in a sex-offense trial.” At the same time, the Court found that the interest in “safeguarding the physical and psychological well-being of a minor” can be a compelling one justifying closure. The Court ruled that “[a] trial court can determine on a case-by-case basis whether closure is necessary to protect the welfare of a minor victim. Among the factors to be weighed are the minor victim’s age, psychological maturity and understanding, the nature of the crime, the desires of the victim, and the interests of parents and relatives.” Id. (footnotes omitted).
CompareIX. Special proceedings
The First Circuit addressed public access to certain bankruptcy records, particularly the exception for records that are “scandalous or defamatory” pursuant to 11 U.S.C. § 107(b)(2). In re Gitto Global Corp., 422 F.3d 1, 8 (1st Cir. 2005). In Gitto Global, the Court ordered the disclosure of a redacted investigative report compiled by a court-appointed bankruptcy examiner.
CompareA. Tribal Courts in the jurisdiction
No reported First Circuit cases identified.
CompareB. Probate
No reported First Circuit cases identified.
CompareC. Competency and commitment proceedings
No reported First Circuit cases identified.
CompareD. Attorney and judicial discipline
Access to judicial discipline proceedings is subject to the Rules for Judicial-Conduct and Judicial-Disability Proceedings, promulgated by the Judicial Conference of the United States. Specifically, Rule 24 deals with the availability of information to the public. The official commentary on Rule 24 provides the following guidance:
Rule 24 provides for public availability of orders of a chief judge, a judicial council, and the Committee on Judicial Conduct and Disability, as well as the texts of memoranda incorporated by reference in those orders, together with any dissenting opinions or separate statements by members of the judicial council. . . . However, these orders and memoranda are to be made public only when final action on the complaint has been taken and any right of review has been exhausted. The provision that decisions will be made public only after final action has been taken is designed in part to avoid public disclosure of the existence of pending proceedings. Whether the name of the subject judge is disclosed will then depend on the nature of the final action. If the final action is an order predicated on a finding of misconduct or disability (other than a privately communicated censure or reprimand) the name of the subject judge must be made public. If the final action is dismissal of the complaint, the name of the subject judge must not be disclosed. Rule 24(a)(1) provides that where a proceeding is concluded under Rule 11(d) by the chief judge on the basis of voluntary corrective action, the name of the subject judge generally should not be disclosed, except where the complainant or another person has disclosed the existence of a complaint proceeding to the public.
Final orders on complaints of judicial misconduct and judicial disability are available on the First Circuit’s website at: https://www.ca1.uscourts.gov/judicial-conduct-disability.
Access to attorney discipline proceedings is subject to the Rules of Attorney Disciplinary Enforcement for the Court of Appeals for the First Circuit (Aug. 1, 2002). “The Clerk of this Court shall promptly notify the National Discipline Data Bank operated by the American Bar Association of any order imposing public discipline upon any attorney admitted to practice before this Court.” Rule X(A). “The order disbarring the attorney on consent shall be a matter of public record. However, the affidavit required under the provisions of this Rule shall not be publicly disclosed or made available for use in any other proceeding except upon order of this Court.” Rule VI.
CompareE. Immigration proceedings
No reported First Circuit cases identified.
CompareF. Other proceedings
No reported First Circuit cases identified.
CompareX. Restrictions on participants in litigation
CompareA. Media standing to challenge third-party gag orders
In general, the media has standing to challenge protective orders in civil cases. The Boston Globe appealed from protective orders that prohibited the parties from divulging information obtained through discovery. Although the protective order was vacated after jury selection, the issue was capable of repetition, yet evading review. Anderson v. Cryovac Inc., 805 F.2d 1, 4–5 (1st Cir. 1986).
CompareB. Gag orders on the press
“Of all the constitutional imperatives protecting a free press under the First Amendment, the most significant is the restriction against prior restraint upon publication. ‘[T]he chief purpose of [the First Amendment’s free press] guaranty [is] to prevent previous restraints upon publication.’” Matter of Providence Journal Co., 820 F.2d 1342, 1345 (1st Cir. 1986). “When, as here, the prior restraint impinges upon the right of the press to communicate news and involves expression in the form of pure speech—speech not connected with any conduct—the presumption of unconstitutionality is virtually insurmountable.” Id. at 1348. The First Circuit refused to enforce a transparently invalid prior restraint on publication of information about a reputed member of organized crime where the “only potential danger posed by the restrained speech was to an individual’s privacy right. That right can be adequately protected by a subsequent damages action.” Id. at 1353. Because the lower court’s order, which had been violated, was “transparently invalid”, the appellate court reversed a criminal contempt citation against a newspaper and its executive editor.
Although not a gag order case, the First Circuit ruled that a district court erred “in granting access to one media entity and not the other” since a “court may not selectively exclude news media from access to information otherwise made available for public dissemination. The danger in granting favorable treatment to certain members of the media is obvious: it allows the government to influence the type of substantive media coverage that public events will receive. Such a practice is unquestionably at odds with the first amendment. . . . [No] branch of the government can be allowed to affect the content or tenor of the news by choreographing which news organizations have access to relevant information.” Anderson v. Cryovac Inc., 805 F.2d 1, 9 (1st Cir. 1986).
In United States v. Connolly, the trial court held that reporters called as witnesses were excused from a sequestration order since “the public interest in these reporters being able to cover this proceeding far outweighs any conceivable interest in excluding them from the trial of this case.” 204 F. Supp. 2d 138, 140 (D. Mass. 2002).
CompareC. Gag orders on participants
The Supreme Court has ruled that “the speech of lawyers representing clients in pending cases may be regulated under a less demanding standard than that established for regulation of the press in Nebraska Press Assn. v. Stuart, 427 U.S. 539 (1976), and the cases which preceded it.” Gentile v. State Bar of Nevada, 501 U.S. 1030, 1074 (1991). In Gentile, the Court allowed a Nevada rule providing that “[a] lawyer shall not make an extrajudicial statement that a reasonable person would expect to be disseminated by means of public communication if the lawyer knows or reasonably should know that it will have a substantial likelihood of materially prejudicing an adjudicative proceeding.” The Supreme Court has not addressed the proper standard for a gag order to issue on trial participants in general, and jurisdictions have adopted several different standards.
With respect to protective orders during discovery, the First Circuit follows Seattle Times Co., 467 U.S. 20 (1984) (holding that the first amendment is not offended if three criteria are met: (1) there is a showing of good cause as required by Rule 26(c); (2) the restriction is limited to the discovery context; and (3) the order does not restrict the dissemination of information obtained from other sources). Anderson v. Cryovac Inc., 805 F.2d 1, 7 (1st Cir. 1986).
The First Circuit holds “[F]irst [A]mendment considerations cannot be ignored in reviewing discovery protective orders. . . . [T]he [F]irst [A]mendment is still a presence in the review process. Protective discovery orders are subject to [F]irst [A]mendment scrutiny, but that scrutiny must be made within the framework of Rule 26(c)’s requirement of good cause.” Anderson v. Cryovac Inc., 805 F.2d 1, 7 (1st Cir. 1986). A finding of good cause for a protective order “must be based on a particular factual demonstration of potential harm, not on conclusory statements.” Id.
CompareD. Interviewing judges
Anyone interested in interviewing a judge should contact the judge’s chambers, preferably in writing (if time permits), to explain the purpose of the request.
CompareXI. Other issues
CompareA. Interests often cited in opposing a presumption of access
Even where a court finds a constitutional presumption of access to proceedings or records, that presumption can be rebutted “by an overriding interest based on findings that closure is essential to preserve higher values and is narrowly tailored to serve that interest.” Press-Enterprise Co. v. Superior Court (Press-Enterprise I), 464 U.S. 501, 510 (1984).
Fair trial rights
In Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 580 (1980) and subsequent cases, the Supreme Court recognized that the Sixth Amendment right to a fair trial can sometimes overcome the presumption of openness. But it added that “although the Sixth Amendment guarantees the accused a right to a public trial, it does not give a right to a private trial.” Id. Because “[t]here was no suggestion that any problems with witnesses could not have been dealt with by their exclusion from the courtroom or their sequestration during the trial” or that “sequestration of the jurors would not have guarded against their being subjected to any improper information,” the fair trial right could not trump the presumption of access. Indeed, the right to a fair trial is intertwined with the right to a public trial in so far as one of the primary purposes served by requiring public trials is to protect the fairness of them.
The First Circuit has held that defendants’ fair trail rights represent a compelling interest and that “[w]hen that right collides head-on with the public’s right of access to judicial records, the defendant’s fair trial right takes precedence. In re Providence Journal Co., Inc., 293 F.3d 1, 13 (1st Cir. 2002). The court explained:
That does not mean, however, that the public’s (and the media’s) right to know can be frustrated by the mere invocation of a threat to the accused’s Sixth Amendment right to a fair trial. A court faced with an impending collision between these rights must, on a case-specific basis, construct a balance. That weighing must proceed on the assumption that restrictions on access to presumptively public judicial documents should be imposed only if a substantial likelihood exists that the accused’s right to a fair trial will otherwise be prejudiced. We caution that this inquiry requires specific findings; the First Amendment right of public access is too precious to be foreclosed by conclusory assertions or unsupported speculation.
Id. (citations omitted). The court agreed that a district court’s finding that fair trial rights were substantially threatened was “objectively reasonable” where the court had identified “specific incidents,” unlawful leaks of information in violation of the Federal Rules of Criminal Procedure, and “misconduct by the lead prosecutor.” Id.
The First Circuit then addressed whether “a trial court, in a particular case, can adopt a procedure that reverses the presumption of public access and automatically seals all subsequent filings until the judge determines that a specific document poses no undue risk to the defendant’s fair trial rights.” Id. at 14 (emphasis in original). The court agreed that doing so was not reversible error, so long as the procedure incorporates certain safeguards:
First, where, as here, a court undertakes to screen documents before they are placed in the case file, the procedure should incorporate a specific timetable obligating the court to perform its self-imposed screening responsibilities promptly and to render a timely decision as to whether a particular document is fit for public disclosure. Second, and relatedly, the court below decided to refrain from reviewing each individual memorandum to decide whether it could be made available to the public until after the time had expired for the submission of any possible reply memorandum. This unnecessarily prolongs the process. Each individual memorandum either contains restricted information (in which case it is subject to redaction or sealing) or it does not (in which case it does not pose a threat to the defendants’ Sixth Amendment rights). Third, the order contains no provision as to whether the court intends to unseal retained memoranda at some point after the trial has ended (and if so, when).
Id. at 15. With regard to timing, the First Circuit has held that even short delays cannot be squared with the right to access court records. Globe Newspaper Co. v. Pokaski, 868 F.2d 497, 507 (1st Cir. 1989) (“[E]ven a one or two day delay impermissibly burdens the First Amendment.”).
The First Circuit also required that such a procedure incorporate a redact-and-release approach to sealing. “Finally, we think that the district court’s refusal to consider redaction on a document-by-document basis is insupportable. Courts have an obligation to consider all reasonable alternatives to foreclosing the constitutional right of access. Redaction constitutes a time-tested means of minimizing any intrusion on that right.” Id. The First Circuit found fault in a generalized finding by the district court that references to confidential grand jury matters were “almost invariably dispersed throughout the memoranda and inextricably intertwined with the references to applicable legal authority.” Id. Instead, “the First Amendment requires consideration of the feasibility of redaction on a document-by-document basis, and the court’s blanket characterization falls well short of this benchmark.” Id.; see also Bradford & Bigelow, Inc. v. Richardson, 109 F. Supp. 3d 445, 449 (D. Mass. 2015) (“[A]ny sealing” must be “narrowly tailored to shield as little from public view as possible.”).
National security and state secrets
No reported First Circuit cases identified.
Sexual assault issues
In Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 602‑03 (1982), the Supreme Court recognized the First Amendment access right and struck down a statute that required “the exclusion of the press and general public during the testimony of a minor victim in a sex-offense trial.” It added, however, that the presumption of public access “does not mean, however, that for purposes of this inquiry the court cannot protect the minor victim by denying these representatives the opportunity to confront or cross-examine the victim, or by denying them access to sensitive details concerning the victim and the victim’s future testimony. Such discretion is consistent with the traditional authority of trial judges to conduct in camera conferences.” Id. at 609 n.25.
Privacy
The Supreme Court has recognized that, under some circumstances, privacy interests can overcome a presumption of access. In Press-Enterprise Co. v. Superior Court (Press-Enterprise I), 464 U.S. 501, 512 (1984), for example, the Court held that despite the presumption of access “a valid privacy right may rise to a level that part of the transcript should be sealed, or the name of a juror withheld, to protect the person from embarrassment.”
The First Circuit has held that records cannot be sealed on basis of generalized reputational or privacy interests. Globe Newspaper Co. v. Pokaski, 868 F.2d 497, 507-09 (1st Cir. 1989). However, privacy rights can limit the presumptive right of access to judicial records where “specific, severe harm” would result from disclosure. FTC, 830 F.2d at 412. “[P]rivacy rights of participants and third parties are among those interests which, in appropriate cases, can limit the presumptive right of access to judicial records.” Id. at 411; see also United States v. Kravetz, 706 F.3d 47, 53, 57 (1st Cir. 2013) (letters submitted to district court in connection with sentencing containing “discussion of the ill health of members of the authors’ families, incidents of domestic violence, and other domestic relations matters information . . . is highly personal and appears to have no direct bearing upon the public’s assessment of the sentences imposed [and] may overcome the presumption of public access”).
Where “the public’s right of access competes with privacy rights,” the court should, after weighing competing interests, “edit and redact a judicial document in order to allow access to appropriate portions of the document.” United States v. Kravetz, 706 F.3d 47, 53, 62-63 (1st Cir. 2013).
A “fear of adverse publicity” is not sufficient and a seal justified by such concerns is improper. Siedle, 147 F.3d at 10. “The mere fact that judicial records may reveal potentially embarrassing information is not in itself sufficient reason to block public access.” Id.; see also United States v. Kravetz, 706 F.3d 47, 53, 62-63 (1st Cir. 2013) (“[A] fear of adverse publicity . . . is insufficient to defeat public access.”).
With regard to medical information submitted to the court for purposes of sentencing, the First Circuit has distinguished between “diagnosis and treatment information that is likely to form the basis of a plea for or grant of leniency” and “peripheral information” such as “the details of a person’s family history, genetic testing, history of diseases and treatments, history of drug use, sexual orientation and practices, and testing for sexually transmitted diseases.” United States v. Kravetz, 706 F.3d 47, 53, 63 (1st Cir. 2013). The court noted that “redaction remains a viable tool for separating this information from that which is necessary to the public’s appreciation of the sentence imposed.” Id.
The First Circuit has also noted that privacy objections to disclosure of judicial records “may lose some force” when the supposedly private information has previously been made available to the public. United States v. Kravetz, 706 F.3d 47, 53, 63 (1st Cir. 2013); see also Globe Newspaper Co. v. Pokaski, 868 F.2d 497, 506 n.17 (1st Cir 1989) (“[W]hile prior publicity weighs strongly against sealing, we do not believe it presents an insurmountable obstacle.”).
With regard to commercial interests, the First Circuit has suggested that bad publicity seldom if ever will be sufficient to close proceedings or records the public. “Trials after all commonly generate bad publicity for defendants. Specific pieces of evidence are only details of a larger picture, often a very disparaging one, created by reports of the case in the press. This publicity may be unfair or distorted, but the injury is the price paid for open trials. At least in the absence of extraordinary circumstances, commercial embarrassment is not a ‘compelling reason’ to seal a trial record.” Poliquin v. Garden Way, 989 F.2d 527, 533 (1st Cir. 1993).
CompareB. Cameras and other technology in the courtroom
The First Circuit has recognized that “[a]ll forms of broadcasting are expressly proscribed in federal criminal cases.” In re Sony BMG Music Entertainment, 564 F.3d 1, 4 (1st Cir. 2009); see also Fed. R. Crim. P. 53 (“[T]he court must not permit the taking of photographs in the courtroom during judicial proceedings or the broadcasting of judicial proceedings from the courtroom.”).
In a case in which the First Circuit exercised its mandamus authority to prohibit live webcasting of a civil proceeding, the court interpreted Rule 83.3 of the Local Rules of the United States District Court for the District of Massachusetts to “forbid all broadcasting of federal district court proceedings in civil cases, save only for the enumerated exceptions. In re Sony BMG Music Entertainment, 564 F.3d 1, 9 (1st Cir. 2009) (emphasis in original). The court distinguished “the venerable right of members of the public to attend federal court proceedings” from “an imagined entitlement to view court proceedings remotely on a computer screen” and concluded that the controlling court rule “properly interpreted, closes federal courtrooms in Massachusetts to webcasting and other forms of broadcasting (whether over the air or via the Internet) . . . .” Id. In a concurrence, one judge agreed that the district court’s local rule required the outcome the majority had reached, but found that “there are no sound policy reasons to prohibit the webcasting authorized by the district court” and questioned the “continued relevance and vitality” of that Rule. Id. at 11 (Lipez, J., concurring).
The local rules of the relevant United States district court where broadcasting, photographing, or recording is proposed should be consulted, as they vary and may be amended.
The First Circuit has adopted a “Policy Regarding Electronic Devices” (Aug. 1, 2012), which prohibits the general public from bringing electronic devices into any United States courthouse in the District of Massachusetts, which is where the First Circuit hears most arguments. Attorneys who present valid identification are permitted to bring laptop computers and cell phones into the courthouse for business use. Laptop computers with silent keyboards may be used in the courtroom with the prior permission of the presiding judge. Attorneys may not record court proceedings.
CompareC. Tips for covering courts in the jurisdiction
The United States Court of Appeals for the First Circuit hears appeals from the United States District Courts for the Districts of Maine, Massachusetts, New Hampshire, Puerto Rico and Rhode Island. It hears argument in Boston, MA and San Juan, PR. The court currently has ten judges, four of whom have assumed senior status. Court contact information is available at https://www.ca1.uscourts.gov/clerks-office.
The First Circuit posts information for the public and the media on its website at: https://www.ca1.uscourts.gov/information-public-and-media.
In general, the First Circuit’s calendar consists of:
In January through June, and October through December, the Court usually sits for one week starting on the first Monday of the month. In July, the Court usually sits the last full week of the month. In September, the Court starts on the Wednesday after Labor Day and sits for the 3 days in that week and the 5 days in the following week. In November and March, the Court usually sits the week starting on the first Monday of the month, simultaneously in Boston and in Puerto Rico. Court sittings are held in the morning, typically between 9:30 a.m. and 1:00 p.m. The calendar is subject to change without notice.
https://www.ca1.uscourts.gov/calendar-information. The court provides online access to recent audio recordings and makes prior recordings available for purchase. Id.
The court provides online access to opinions and audio recordings of oral arguments at https://www.ca1.uscourts.gov/opinions-oral-arguments.
Anyone in need of regular access to information about a case should register for an account through the Public Access to Court Electronic Records (PACER), a public access system that allows registered users to obtain case and docket information over the internet. A PACER account is required to view documents. PACER accounts are not court specific. An account will provide nationwide access to all United States appellate, district, and bankruptcy courts.
To obtain a transcript of a proceeding, the court provides access to contact information, forms, and instructions on its website at: https://www.ca1.uscourts.gov/transcript-forms-notices.
Information on the Circuit Library and access to federal legal materials is available at: https://www.ca1.uscourts.gov/circuit-library.
The First Circuit does not publish standards governing the appearance or behavior of persons appearing in court, but when visiting the courthouse:
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Show a photo ID issued by a government agency, such as a driver’s license or a bar identification card.
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Place your purse, briefcase, backpack, and other personal items on an x-ray machine to be screened.
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Remove keys, coins, wallets, and all other items in your pockets before walking through a magnetometer.
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You may be asked to remove your belt, watch, jewelry, and shoes.
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The general public is prohibited from bringing electronic devices into the building. These may be checked at the security screening station in the lobby.
See https://www.ca1.uscourts.gov/courthouse-visitors-policy-0.
Anyone appearing in court or interacting with court personnel should adhere to standards of conduct that are generally required where matters of importance and serious concern are transacted. In the courtroom, the public should avoid distracting sounds or movements and wear appropriate and neat attire consistent with participation in matters of serious concern.
Compare