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Alaska

Open Courts Compendium

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Author

D. John McKay
117 E. Cook Ave.
Anchorage, AK 99501
(907) 274-3154

mckay@alaska.net

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I. Introduction: Access rights in the jurisdiction

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A. The roots of access rights

Courts are open in Alaska by custom and practice, though there is little Alaska case law on the subject. Access to both case-specific judicial documents and administrative records of the court system is primarily governed by Administrative Rules 37.5 through 37.8 of the Alaska Rules of Court, which state that they are “adopted pursuant to the inherent authority of the Alaska Supreme Court,” but any restrictions imposed by such rules would necessarily be subject to constitutional constraints. When the Open Meetings Act was revised in 1994, it expressly exempted the court system and legislature from the definition of public entities covered by the OMA, in recognition of the constitutional separation of powers. However, the Public Records Act contains no such exclusion, and instead has several sections that assume it encompasses access to legislative and judicial records. With respect to the judicial branch, this issue is academic, however, since the United States Supreme Court has recognized a First Amendment-based right of press and public access to judicial proceedings and records. Richmond Newspapers Inc. v. Virginia, 448 U.S. 555 (1980); Globe Newspaper Co. v. Superior Ct., 457 U.S. 596 (1982); Press-Enterprise Co. v. Superior Ct. (“Press Enterprise I”), 464 U.S. 501 (1984); Press-Enterprise Co. v. Superior Ct. (“Press Enterprise II”), 478 U.S. 1 (1986). This right has been applied to all stages of trial proceedings, including jury selection, and to pre-trial motion hearings.

It is arguable that the precise legal underpinnings of the main Alaska appellate cases dealing with access to judicial proceedings and records are not absolutely clear. To the extent that federal law establishes a First Amendment right of access to judicial proceedings and records, that constitutional law is, of course, binding upon state courts under the Supremacy Clause.  And the Alaska Constitution can be interpreted to provide greater protection for First Amendment rights, but not less.  Accordingly, it should be argued that the results and holdings in these cases are required by the First Amendment, and by the analogous provision in the Alaska Constitution, art. I, sec. 5, despite any ambiguity on this score in the opinions.

The most significant cases concerning public trials, or access to and exclusion from trial, have been decided in the state Court of Appeals, which in Alaska handles only criminal cases. These cases arose after the U.S. Supreme Court’s decision in Richmond Newspapers, and its progeny. The Alaska Court of Appeals extensively discussed the constitutional right of access in Renkel v. State, 807 P.2d 1087, 1089 (Alaska Ct. App. 1991), implicitly but not expressly basing its ruling on First Amendment-based judicial access cases.  As discussed in more detail below, the court in Renkel held (and the state conceded) that an Alaska statute mandating closure of courtrooms to the public in sexual assault cases involving minor victims was unconstitutional, and that, absent particularized findings supporting closure, closure of a court to the press and public during testimony of minor victims is reversible error.  And, as discussed below, the only Alaska Supreme Court decision dealing significantly with the right to a public trial is a pre-Richmond Newspapers ruling based on the right of an accused to a public trial. R.L.R. v. State, 487 P.2d 27, 35–38 (Alaska 1971).

In both Renkel and the subsequent case of Mitchell v. State, 818 P.2d 688, 689 (Alaska Ct. App. 1991), the Alaska Court of Appeals court reversed the trial courts because they had totally closed the courtroom to the public during the testimony of children who were witnesses without making the findings necessary to justify such an order. “Despite the fundamental nature of the right to public trial and the vital function it still serves, it is well accepted that the right is not absolute . . . It may be limited by some other overriding interest.” Renkel at 1089, (citing Globe Newspaper Co. v. Superior Ct., 457 U.S. 596, 606 (1982) and Richmond Newspapers Inc. v. Virginia, 448 U.S. 555, 581 n. 18 (1980)). The court in Renkel held, as a general rule, that “the broader the closure order becomes, the more compelling the interest sought to be protected must be. Concomitantly, each closure, whether limited or complete, whether based on substantial justification or overriding compelling interest, must be made sparingly on a case-by-case basis in which the judge carefully balances the right of public trial against the interests to be protected by the closure.” Id. at 1091–92. When partially or totally closing the courtroom, the trial judge must: make specific findings so that the record supports a legitimate reason for closure; consider alternatives before ordering closure; and fashion the closure order to be no broader than necessary. Id. at 1092. In a subsequent case, the Court of Appeals rejected a challenge to a conviction based on a courtroom closure, finding that in that case the trial judge had not excluded “all unnecessary people” from the courtroom during the testimony of a child witness, as had been requested, and instead only excluded one family member based on testimony at an evidentiary hearing about the effect of her presence on the child. The appeals court noted that the trial judge preserved the “public nature” of the trial and did make particularized findings, and that his order was limited to one person whom he excluded from the courtroom during the testimony of one witness. Brandon v. State, 839 P.2d 400, 413 (Alaska Ct. App. 1992).

In a subsequent case, arising from a decision to conduct a criminal trial in a state prison rather than in the courthouse in the same community, the Court of Appeals reiterated the constitutional status of the right to a public trial under both the U.S. and Alaska constitutions.  Bright v. State, 875 P.2d 100 (Alaska Ct. App. 2004).  The appeals court found that holding the inmate’s trial in the prison violated his constitutional rights.  It seemed to base this decision on both the constitutional rights of an accused to a public criminal trial under the Sixth Amendment, and under article 1, section 11 of the Alaska Constitution and the public’s right of access to judicial proceedings under the First Amendment as established in Richmond Newspapers:

[W]hile the Sixth Amendment guarantees only a defendant's personal right to a public trial, Gannett Co. v. DePasquale, 443 U.S. 368, 379–80, 99 S.Ct. 2898, 2905, 61 L.Ed.2d 608 (1979), society also has a protected right, conferred by the First and Fourteenth Amendments, to attend and obtain information about criminal trials. Richmond Newspapers, 448 U.S. at 580, 100 S.Ct. at 2829 (main opinion), 448 U.S. at 581–82, 100 S.Ct. at 2830 (White, J., concurring), 448 U.S. at 584, 100 S.Ct. at 2831 (Stevens, J., concurring), 448 U.S. at 584-85, 100 S.Ct. at 2831 (Brennan and Marshall, JJ., concurring), 448 U.S. at 604, 100 S.Ct. at 2842 (Blackmun, J., concurring). The guarantee of public trials has been said to foster and preserve at least three important societal values. Two of these primarily protect a defendant's right to a fair trial, while the third involves society's broader interest in preserving social cohesion and the public peace by allowing citizens to assure themselves that justice is being done.

Bright, 875 P.2d at 105. The court observed that, “Notwithstanding these constitutional interests of both the defendant and the public, judges have the authority to restrict the access of some or all members of the public to some or all portions of criminal trials.” Id. at 106. However, it said, “this judicial power to restrict or deny public access to court proceedings may be exercised only when unusual circumstances imperil a more important societal value, and then only when alternative measures have been considered and found wanting.

[S]ince the concept of a secret trial is anathema to the social and political philosophy which motivates our society, the discretion to limit the public nature of judicial proceedings is to be sparingly exercised and, then, only when unusual circumstances necessitate it.

Id. at 106–107 (citing People v. Jones, 391 N.E.2d 1335, 1338 (1979)). The court in Bright said it was unwilling to flatly declare that the Alaska Constitution prohibits holding a criminal trial in a prison under any and all circumstances. However, any decision to hold a trial in a prison must be subjected to the strictest scrutiny and that decision must be supported by compelling reasons. Id. at 108.  Although the trial judge’s ruling was supported by nine findings, the appeals court found this insufficient because the issue received only cursory consideration on the record, a number of the judge’s findings rested on debatable conclusions that were not the proper subject of judicial notice, and the defendant did not receive notice of the factors the judge was considering. It said there was little or nothing in the record to support the trial judge's findings—because this issue was never litigated or even substantively discussed in open court, the record contained neither testimony nor attorneys' statements to provide an underpinning for the judge's conclusions of fact. Id. at 110. The appellate court also criticized the judge’s findings as being generic rather than specific to Bright’s case, and said there was nothing in the record to indicate that the trial judge considered or investigated alternative measures that might have alleviated some of the perceived drawbacks of the Seward courthouse, so that trial could take place in the courtroom without undue security risk while at the same time preserving the order, decorum, and openness of the trial proceedings. It concluded that holding this trial at the prison violated Bright's right to a public trial under the United States Constitution and the Alaska Constitution, and, citing Renkel, held that “When a defendant's right to a public trial has been unlawfully abridged, the defendant need not show prejudice. Rather, the result is automatic reversal.”  Id. at 109–110.

The main Alaska Supreme Court ruling dealing with public trials is in a 1971 case having to do with the right to a public trial, and a jury trial, in juvenile delinquency cases. R.L.R. v. State, 487 P.2d 27, 35–38 (Alaska 1971). The constitutional public trial right recognized in that case was based on the provisions of the Sixth Amendment and its state constitutional analogue guaranteeing an accused person the right to a public trial. While this was the specific issue presented in that case, the Alaska Supreme Court in R.L.R. extensively discussed the important purposes served by enforcing a right to public trials, including “teach[ing] the spectators about their government and giv[ing] them confidence in their judicial remedies.” The R.L.R. court noted a diversity of opinion on the policy question but noted that “in both the federal and Alaska's constitutions, the right to public trial is part of a list of rights explicitly stated to be rights of the accused.” But this case was decided before Richmond Newspapers and its progeny established that there is a First Amendment right of the press and public to attend trials, and it did not expressly address this First Amendment question. Citing pre-Richmond federal authority it concluded, “thus the right of ‘public trial’ is not one belonging to the public, but one belonging to the accused,” Id. at 36 (quoting Justice Harlan’s concurring opinion in Estes v. Texas— which itself was later distinguished and superseded in the cases recognizing a First Amendment right of access to courts).

In the later Renkel case, the appellant claimed he had been improperly denied his right to a public trial as provided by the Sixth Amendment of the United States Constitution and article 1, section 11 (the analogous provision) of the Alaska Constitution.  But the Alaska Court of Appeals extensively discussed and clearly grounded its analysis on the case law establishing a First Amendment right of access by the press and public to judicial proceedings and records. 807 P.2d at 1089. Citing federal cases including Richmond, Press-Enterprise I, and Globe Newspaper Co., the appeals court states, “Although these cases arise from public access claims based on first amendment principles, we can derive much from their teachings on the deeply rooted nature of the public trial right in Anglo-American jurisprudence and the critical function that a public trial serves in the administration of justice today.” Id. The court extensively discusses the constitutional right of access enunciated in these First Amendment cases.  It notes that “The function that a public trial serves has been eloquently detailed in the watershed case (Richmond Newspapers),” and that “‘one of the most conspicuous features of English justice, that all judicial trials are held in open court, to which the public have free access, . . . appears to have been the rule in England from time immemorial.” Id. And it summarizes this extension discussion of federal constitutional case lay by noting the “fundamental nature of the right to public trial and the vital function it serves.”  Id. at 1091.  Observing that the public trial right is not absolute, the court in Renkel elaborated: “The broader the closure order becomes, the more compelling the interest sought to be protected must be. Concomitantly, each closure, whether based on substantial justification or overriding compelling interest, must be made sparingly on a case-by-case basis in which the judge carefully balances the right of public trial against the interest protected by the closure.” Id. at 1091–92.  In this case, the state conceded the unconstitutionality of the Alaska mandatory closure statute cited in the trial court, specifically on the basis of the US Supreme Court’s First Amendment-based ruling in Globe Newspaper Co.  Id. at 1092.  In determining that the closure could not be justified without relying on the unconstitutional statute, the appeals court noted that the general public, including the press, had been excluded during the testimony of three minor children. “Except that a transcript could be made public upon request, it appears that none of the safeguards of an open trial were maintained.” The court found that this was a total closure that could be upheld only upon a showing of a compelling interest supported by findings in the record, and, citing Globe Newspaper Co., that even a partial closure had to be based on particularized findings. Id.  The court also rejected arguments that “this fatal infirmity” could be “cured by a remand to the trial judge to allow him to make the necessary findings to conform to the dictates of Globe Newspaper Co.Id. at 1093 (emphasis added).  The appeals court said it was “not unmindful of the tremendous emotional burden that children face while testifying in these particularly difficult cases.  Nonetheless, the clear holdings of [three US Supreme Court cases including] Globe Newspaper Co. . . . require case specific evidence to provide the special protection sought by the state.  Generalized subjective impressions cannot substitute.”  Id. at 1094 (emphasis added).  The Renkel court noted that the evidence presented in that case “could not provide facts sufficient to meet the requirements of Globe Newspaper Co.Id. (emphasis added).

The appeals court also said it was unnecessary to deal with a claim by the appellant that his constitutional right to confrontation had been denied, among other reasons, “due to our conclusion that the deprivation of Renkel’s right to public trial mandates reversal.”  Id. at n. 7.  The only citation in Renkel to the Alaska Supreme Court’s decision in R.L.R. was for the proposition that the only available remedy was reversal, even in the absence of a specific claim of prejudice flowing from the closure, noting that the Court in R.L.R., which involved closing a juvenile criminal trial, had determined in that “where the right to public trial has been denied, no prejudice need be shown, since such a showing would be almost impossible to make.”  Id.  And citing a New York state case, the Renkel court held, “Prejudice need not be proved because there is ‘no way to gauge the great, though intangible, societal loss that flows from the frustration of the goal of the public confidence which occurs when the courthouse doors are closed.”  Id.  In summary, it cannot plausibly be argued that the Renkel court’s determination of “the fundamental nature of the right to an open courtroom and its clear violation in this case,” id., is not firmly grounded in the First Amendment-based rulings of Globe Newspapers, Press-Enterprise, and Richmond Newspapers.

Alaska Administrative Rule 50 sets out the process and standards for applying to cover any court proceedings use cameras or electronic devices or a sketch artist. This court rule is supplemented by the Alaska Court System’s Administrative Bulletin 45, which deals with a number of specific logistics issues, including the allowed number and placement of cameras and other devices.  Both the court rule and administrative bulletin were revised for the first time in decades in 2019. The state’s Public Records Act, AS 40.25.110–220, is another primary source of the right of access to public records.  The PRA and case law interpreting it as protecting a fundament right of access to records, observing that the legislature has expressed a bias in favor of public disclosure, and requiring that doubtful cases be resolved by permitting public inspection, are cited in a several cases dealing with access to judicial records. See, e.g.,  Johnson v. State, 50 P.3d 404, 406 and n. 10 (Alaska Ct. App. 2002) (citing Kenai v. Kenai Peninsula Newspapers Inc., 642 P.2d 1316, 1323 (Alaska 1982)).

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B. Overcoming a presumption of openness

Alaska Administrative Rules 37.5 through 37.8 state that records are presumptively open to the public, subject to specified exceptions and restrictions.  These rules generally do not 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). While they may specify applicable procedures and standards, it should always be borne in mind that insofar as procedures and standards may be required by case law construing a constitutional right of access to judicial proceedings and/or records under the First Amendment, or its state law analogue, art. I, sec. 5, of the Alaska Constitution, these should supersede conflicting, inconsistent or otherwise inadequate measures set out in court rules, or statutes.

That said, according to the Administrative Rules, notwithstanding any other rule to the contrary, the court may, by order, limit access to public information in an individual case record by sealing or making confidential the case file, individual documents in the case file, log notes, the audio recording of proceedings in the case, the transcript of proceedings, or portions thereof, if it finds that the public interest in disclosure by a legitimate interest in confidentiality, including but not limited to risk of injury to individuals; individual privacy rights and interests; proprietary business information; the deliberative process; or public safety. Alaska Admin. R. 37.6(b). In limiting public access, the court must use the least restrictive means that will achieve the purposes of these public access rules and the reasonable needs as set out as the basis for the request, without unduly burdening the court. Alaska Admin. R. 37.6(c). Conversely, the court may, by order, allow access to non-public information in a case or administrative record if the court finds that the requestor’s interest in disclosure outweighs the potential harm to the person or interests being protected, including but not limited to risk of injury to individuals; individual privacy rights and interests; proprietary business information; the deliberative process; or public safety. Alaska Admin. R. 37.7(a). Non-public information includes information designated as confidential or sealed by statute or court rule and public information to which access has been limited under Alaska Admin. R. 37.6.

The Alaska Court of Appeals discussed the constitutional right of access in Renkel v. State, 807 P.2d 1087, 1089 (Alaska Ct. App. 1991), implicitly but not expressly basing its ruling on First Amendment-based judicial access cases with respect to a courtroom closure issue. In that case, the appeals court found that the trial court’s failure to make particularized findings supporting closure of proceedings to the press and public (in that case, during testimony of minor victims) was error that required reversal even in the absence of a specific claim of prejudice flowing from the closure. But the court acknowledged that it was possible to overcome the constitutional presumption of openness. “Despite the fundamental nature of the right to public trial and the vital function it still serves, it is well accepted that the right is not absolute . . . It may be limited by some other overriding interest.” Renkel, 807 P.2d at 1089 (citing Globe Newspaper Co. v. Superior Ct., 457 U.S. 596, 606 (1982) and Richmond Newspapers Inc. v. Virginia, 448 U.S. 555, 581 n. 18 (1980)). The court in Renkel held, as a general rule, that “the broader the closure order becomes, the more compelling the interest sought to be protected must be. Concomitantly, each closure, whether limited or complete, whether based on substantial justification or overriding compelling interest, must be made sparingly on a case-by-case basis in which the judge carefully balances the right of public trial against the interests to be protected by the closure.” Id. at 1091–92. When partially or totally closing the courtroom, the trial judge must: make specific findings so that the record supports a legitimate reason for closure; consider alternatives before ordering closure; and fashion the closure order to be no broader than necessary. Id. at 1092. In a subsequent case, the Court of Appeals rejected a challenge to a conviction based on a courtroom closure, finding that in that case the trial judge had not excluded “all unnecessary people” from the courtroom during the testimony of a child witness, as had been requested, and instead only excluded one family member based on testimony at an evidentiary hearing about the effect of her presence on the child. The appeals court noted that the trial judge preserved the “public nature” of the trial and did make particularized findings, and that his order was limited to one person whom he excluded from the courtroom during the testimony of one witness. Brandon v. State, 839 P.2d 400, 413 (Alaska Ct. App. 1992). In determining that the closure could not be justified without relying on the unconstitutional statute, the appeals court in Renkel noted that the general public, including the press, had been excluded during the testimony of three minor children.  “Except that a transcript could be made public upon request, it appears that none of the safeguards of an open trial were maintained.” Renkel, 807 P.2d at 1092. The court found that this was a total closure that could be upheld only upon a showing of a compelling interest supported by findings in the record, and, citing Globe Newspaper Co., that even a partial closure had to be based on particularized findings. Id. It is notable that this ruling was made in the context of what the court characterized as a “particularly difficult case,” involving a tremendous emotional burden being faced by child witnesses.  “Nonetheless, the clear holdings of [three US Supreme Court cases including] Globe Newspaper Co. . . . require case specific evidence to provide the special protection sought by the state.  Generalized subjective impressions cannot substitute.”  Id. at 1094. See also Bright v. State, 875 P.2d 100, 105–110 (Alaska Ct. App 2004), discussed in detail the introductory section I.A above (“This judicial power to restrict or deny public access to court proceedings may be exercised only when unusual circumstances imperil a more important societal value, and then only when alternative measures have been considered and found wanting; strictest scrutiny, specific finding supported in the record, and compelling reasons would be needed to justify decision to conduct trial in prison rather than in regular public courtroom.”).

In State v. Palin, Case No. 3PA-17-02069 Cr., the district court judge presiding over the Veteran’s Court denied the criminal defendant’s motion to exclude the press altogether from Veteran’s Court proceedings involving the son of the state’s former governor. June 11, 2018, Order On Defendant’s Motion to Prohibit or Limit Media Access to Hearing. The court agreed that the Veteran’s Court, “a post-plea, pre-sentence” therapeutic court, was open to the public, as were its files. However, it granted Palin’s motion to exclude cameras from the courtroom during the weekly Veterans’ Court proceedings, due to the unique nature of this alternative, therapeutic court diversion program—which among other things required all current participants in the program to attend regular court sessions and share and report on often intimate matters that would not ordinarily be disclosed, or required to be disclosed, in normal court proceedings, and which required participants to remain in the courtroom during the portion of proceedings involving others, not just during their own cases. The judge subsequently ordered that the initial change of plea proceedings, which entailed an admission of guilt with respect to the underlying criminal charge as a condition of gaining entrance to the diversion program, could be covered with cameras and electronic devices like other such criminal proceedings, but could be conducted separately from the regular Veterans’ Court proceedings at which other participants’ attendance was mandated.

In Natekin v. State, 2011 WL 5904467 (Alaska Ct. App. Nov. 23, 2011), a defendant appealed his conviction contending that the superior court violated his right to a public trial by holding two “confidential” hearings during his trial.  Some of the language of this decision would be more problematic if the court’s decision had been dependent upon it, or if this were not an unpublished memorandum decision (meaning that it can be cited for its persuasive value in relation to an issue but not for precedent).  The court purported to have a “confidential hearing,” apparently meaning that members of the public were not required to leave but could not talk about what transpired in the proceeding in questions.  The motivating factor was preventing premature disclosure of facts coming out during court proceedings concerning attempted bribery of an anticipated witness.  The court affirmed the defendant’s conviction without reaching some of the important issues raised by the facts of this case, finding that the trial attorney had not preserved the issues by objecting to the judge’s action at trial.  Because of this, Natekin needed to show that the proceedings were marred by obvious error, but could not because, the court said, the record did not plainly show that the two challenged hearings were in fact closed to the public.  The court found the language used by the trial judge to be “confusing,” and it distinguished between situations where the courtroom was or was not closed to the public. It found that the judge never asked anyone to leave the courtroom.  The court said that “no one raised a ‘public trial’ issue in the superior court.  It is perhaps conceivable that Judge Smith took measures to close the courtroom to the public.  But the record in front of us suggests that no such measures were taken—and that Judge Smith confined himself to ordering any people who were present not to reveal what they heard in court.”  It found that Natekin had not shown enough to overcome the presumption that court proceedings had been conducted in accordance with the law.  It should be noted that the only question even raised (without preserving it for appeal) was whether the hearing had been closed or open.  No one raised the propriety of purporting to tell individuals that they could not speak about what they heard or saw in the court proceedings, and the case cannot be cited as precedent for or endorsement of this practice, which is a separate question.

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C. Procedural prerequisites to closure

Alaska Administrative Rules 37.5 through 37.8 state that records are presumptively open to the public, subject to specified exceptions and restrictions.  These rules generally do not 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). While they may specify applicable procedures and standards, it should always be borne in mind that insofar as procedures and standards may be required by case law construing a constitutional right of access to judicial proceedings and/or records under the First Amendment, or its state law analogue, art. I, sec. 5, of the Alaska Constitution, these should supersede conflicting, inconsistent or otherwise inadequate measures set out in court rules, or statutes. That said, according to the Administrative Rules, notwithstanding any other rule to the contrary, the court may, by order, limit access to public information in an individual case record by sealing or making confidential the case file, individual documents in the case file, log notes, the audio recording of proceedings in the case, the transcript of proceedings, or portions thereof. A request to limit access may be made by any person affected by the release of the information or on the court’s own motion.” Alaska Admin. R. 37.6(a). Any request to limit access must be made in writing to the court and served on all parties to the case unless otherwise ordered. (Unless and until a motion to intervene is granted, a journalist or news organization would not typically be a “party” to the case.) A request to limit access, the response to such a request, and the order ruling on such a request must be written in a manner that does not disclose non-public information, are public records, and must not themselves be sealed or made confidential. Alaska Admin. R. 37.6(d). Conversely, thecourt may, by order, allow access to non-public information in a case or administrative record if the court finds that the interests in disclosure outweigh the potential harm from disclosure. Non-public information includes information designated as confidential or sealed by statute or court rule and public information to which access has been limited under Administrative Rule 37.6. A request to allow access may be made by any person or on the court’s own motion. Alaska Admin. R. 37.7(a). Any such request to allow access must be made in writing to the court and served on all parties to the case unless otherwise ordered. The court must also require service on other individuals or entities that could be affected by disclosure of the information. A request to allow access, the response to such a request, and the order ruling on such a request must be written in a manner that does not disclose non- public information, are public records, and shall not themselves be sealed or made confidential. Alaska Admin. R. 37.7(b). The Alaska Court of Appeals discussed the constitutional right of access in Renkel v. State, 807 P.2d 1087, 1089 (Alaska Ct. App. 1991), implicitly but not expressly basing its ruling on First Amendment-based judicial access cases with respect to a courtroom closure issue.  Among other things, the appeals court said that, absent particularized findings supporting closure, closure of a court to the press and public (in that case, during testimony of minor victims) was error that required reversal even in the absence of a specific claim of prejudice flowing from the closure. See also Bright v. State, 875 P.2d 100, 105–110 (Alaska Ct. App 2004), discussed in detail the introductory section I.A above (“This judicial power to restrict or deny public access to court proceedings may be exercised only when unusual circumstances imperil a more important societal value, and then only when alternative measures have been considered and found wanting; strictest scrutiny, specific finding supported in the record, and compelling reasons would be needed to justify decision to conduct trial in prison rather than in regular public courtroom.”).

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II. Procedure for asserting right of access to proceedings and records

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A. Media standing to challenge closure

Court decisions recognizing common law and constitutional rights of access to court proceedings and records generally address at the outset the standing of news organizations and journalists to be heard in the ongoing case, where they are not already parties.  While no Alaska appellate court decisions expressly address this, state and federal courts have repeatedly recognized the right, or standing, of the press to intervene and seek relief in these cases. See, e.g., Henry v. Municipality of Anchorage, No. 3:15-cv-187-RRB (D. Alaska); U.S. v. Anderson, No. 3:06-cr-00099-JWS (D. Alaska); U.S. v. Kott & Weyhrauch, No. 3:07-cr-00056-JWS (D. Alaska); U.S. v. Kohring, No. 3:07-cr-00055-JWS (D. Alaska); U.S. v. Wade, No. 3:07-cr-00111-RRB (D. Alaska); In re The Exxon Valdez, No. A89-095 Civ. (D. Alaska); In re Anaruk (Consolidated CAPA Guardianship Cases), No. 3AN-01-1052 P/C (Super. Ct., 3d Jud. Dist.); U.S. v. Kane & Security Aviation, No. 3:06-cr-00022-HRH (D. Alaska); Prevo v. Prevo, No. 3AN-10-8113 Civ. (Super. Ct., 3d Jud. Dist.); Kennedy & Feliciano v. Municipality of Anchorage, Case No. 3AN-10-8665 Civ (Super. Ct., 3d Jud. Dist.).

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B. Procedure for requesting access in criminal cases

Journalists, like other citizens, have a constitutional right to attend court proceedings, and they need not seek permission to attend proceedings that are open to the public. There is no need to identify yourself or explain why you wish to observe judicial proceedings (though in many cases, spectators may be a rarity, and a judge or party may enquire about why someone they don’t recognize is there, if for no reason other than to ensure that you are not a witness who should be excluded from the courtroom before they have testified).

Sometimes a party may formally or informally attempt to restrict access to proceedings or records, or a judge may indicate an intent to close court proceedings, or deny access to records, in circumstances where this appears to be legally unwarranted. A journalist may want to challenge this action. If time permits, the reporter should consult his or her editor or news director and discuss getting legal counsel involved.  But sometimes immediate action by a journalist present in the courtroom will be appropriate and more effective.  If the situation allows, a journalist facing exclusion from the courtroom or other such restrictions might respectfully ask to be heard and voice an objection.  The journalist can ask the court not to close the proceedings, or at least to delay employing the restrictions in question until the news organization’s lawyer can be heard from.  When restrictions have already been imposed, or when a motion seeking restrictions is filed by a party, the appropriate course is most likely to file a motion seeking access to the proceedings or records in question.  In such instances, the motion for access should probably be accompanied by a motion to intervene that establishes the standing of the news organization and explains why it should be heard.  The first page of pleadings filed in criminal cases must contain a certification indicating whether the paper or document contains information that is confidential under AS 12.61.100–.150 (the Victims’ Rights Act).

Alaska Administrative Rule 50 sets out the process and standards for applying to cover any court proceedings use cameras or electronic devices or a sketch artist. This court rule is supplemented by the Alaska Court System’s Administrative Bulletin 45, which deals with a number of specific logistics issues, including the allowed number and placement of cameras and other devices.  Both the court rule and administrative bulletin were revised for the first time in decades in 2019.

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C. Procedure for requesting access in civil matters

Journalists, like other citizens, have a constitutional right to attend court proceedings, and they need not seek permission to attend proceedings that are open to the public. There is no need to identify yourself or explain why you wish to observe judicial proceedings (though in many cases, spectators may be a rarity, and a judge or party may enquire about why someone they don’t recognize is there, if for no reason other than to ensure that you are not a witness who should be excluded from the courtroom before they have testified).

Sometimes a party may formally or informally attempt to restrict access to proceedings or records, or a judge may indicate an intent to close court proceedings, or deny access to records, in circumstances where this appears to be legally unwarranted. A journalist may want to challenge this action. If time permits, the reporter should consult his or her editor or news director and discuss getting legal counsel involved.  But sometimes immediate action by a journalist present in the courtroom will be appropriate and more effective.  If the situation allows, a journalist facing exclusion from the courtroom or other such restrictions might respectfully ask to be heard and voice an objection.  The journalist can ask the court not to close the proceedings, or at least to delay employing the restrictions in question until the news organization’s lawyer can be heard from.  When restrictions have already been imposed, or when a motion seeking restrictions is filed by a party, the appropriate course is most likely to file a motion seeking access to the proceedings or records in question.  In such instances, the motion for access should probably be accompanied by a motion to intervene that establishes the standing of the news organization and explains why it should be heard.

With respect to requests to cover court proceedings using camera or electronic devices specifically, or a sketch artist, which require prior approval, the procedures and standards for doing so are set out in Alaska Administrative Rule 50 and the Court System’s Administrative 45, both of which are discussed in detail in section XI.B below (“Cameras and other technology in the courtroom”).

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D. Obtaining review of initial court decisions

The appropriate avenue for obtaining review of an adverse court decision may depend on whether the case is civil or criminal.  The Court of Appeals deals only with criminal cases.  In a civil case originating in superior court, appeals are filed with the Alaska Supreme Court.  In civil or cases originating in the state district court an initial appeal of right is filed with the superior court, and the Supreme Court has discretion to grant or deny a petition for review from the superior court.  In criminal cases, appeals are taken from the district court to the superior court, or from the superior court to the Court of Appeals, and in either case further review may be granted or denied in the discretion of the higher court.  There is little or no precedent regarding review of trial court rulings concerning intervention by the press or motions for access to court records or proceedings, or similar relief.  As a result, it is not yet clear whether, e.g., the Supreme Court might entertain a direct appeal from a superior court ruling denying press access or other relief in a criminal case, without requiring intermediate review by the Court of Appeals, either pursuant to a discretionary petition for review, or because the ruling in question might be deemed appealable as a final order with respect to the non-party press entity.  Similarly, in civil cases, the law has not been clearly established with respect to whether review of a ruling involving press access in an existing case can be appealed, as a final judgment or otherwise, or whether it may only be sought through an interlocutory petition, subject to discretionary review.

With respect to requests for camera or audio coverage specifically, any person or organization whose request to cover court proceedings with cameras or electronic devices is denied or restricted can seek review of the unfavorable action.  The process for doing this depends on whether it involves trial court or appellate court proceedings and facilities.  In the trial courts, the person or organization can ask in writing that the court reconsider its ruling. This request can be made in the form of a letter to the trial judge, and can made through an attorney, but also, despite the statute requiring corporations to appear in court only through attorneys, it can be made by an officer or employee of an organization.  The reconsideration request must state the reasons why use of a camera or an electronic device should be allowed and must be served on all parties to the case. If the reconsideration request is denied, the person or organization may petition for review under the Appellate Rules, but in this situation an organization seeking review can proceed only through an attorney. Alaska Admin. R. 50(e).  If the request in the first place is for reconsideration of a restriction or appeal imposed in connection with Supreme Court or Court of Appeals proceedings, the process is basically the same, except that the letter or other filing requesting reconsideration and stating the reasons why use of a camera or electronic device should be allowed is made to the clerk of the appellate courts. It can be made through an attorney, or directly by the person, or by an officer or employee of an organization, seeking such use, despite the statute requiring corporations to appear in court only through attorneys. Alaska Admin. R. 50(f)(4).

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III. Access to criminal proceedings

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A. In general

Access to criminal proceedings is primarily governed by United States Supreme Court rulings recognizing a First Amendment-based right of press and public access to judicial proceedings. See, e.g., Richmond Newspapers Inc. v. Virginia, 448 U.S. 555 (1980); Globe Newspaper Co. v. Superior Ct., 457 U.S. 596 (1982); Press-Enterprise Co. v. Superior Ct. (“Press Enterprise I”),

464 U.S. 501 (1984); Press-Enterprise Co. v. Superior Ct. (“Press Enterprise II”), 478 U.S. 1 (1986). This right has been applied to all stages of trial proceedings, including jury selection, and to pre-trial motion hearings. The Alaska Court of Appeals discussed the constitutional right of access in Renkel v. State, 807 P.2d 1087 (Alaska Ct. App. 1991).  Citing Press-Enterprise I, the court in Renkel held that an Alaska statute mandating closure of courtrooms to the public in sexual assault cases involving minor victims was unconstitutional, and that, absent particularized findings supporting closure, closure of a court to the general public during testimony of minor victims is reversible error. Id. at 1089, 1092. See alsoBright v. State, 875 P.2d 100, 105–110 (Alaska Ct. App 2004), discussed in detail the introductory section I.A above. The Supreme Court has underscored the need to create a reviewable record by strongly disapproving a trial court's going “off the record;” if an appellate court does not have a complete record of what took place in the trial court it makes it difficult, and sometimes impossible, for the appellate court to exercise to the fullest extent its power and duty to review the actions of the trial court. In re P.N., 533 P.2d 13, at 19, n. 13. (Alaska 1975); Smith v. State, Board of Dental Examiners, 1984 WL 908389 *3 (Alaska May 2, 1984).

Because the press and public generally have a constitutional right to attend court proceedings, including criminal cases, we don’t need to ask permission to do that.  However, neither the federal nor state constitutions have thus far been construed to cover use of video or still cameras or audio recording devices, so these activities are governed by court rules. In Alaska, camera and audio coverage of court proceedings, as well as use of sketch artists, is covered by Alaska Administrative Rule 50. Rule 50 is addressed in more detail in section XI.B of this Open Courts Compendium. The federal local rule generally prohibiting use of cameras and recording devices in Alaska’s federal court facilities, D. Alaska Local R. 83.3, is set out in section XI.B, below.

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.”

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B. Pretrial proceedings

The right of press and public access to judicial proceedings and records has been recognized as a matter of right under the First Amendment in Richmond Newspapers Inc. v. Virginia, 448 U.S. 555 (1980) and its progeny, including Globe Newspaper Co. v. Superior Ct., 457 U.S. 596 (1982); Press-Enterprise Co. v. Superior Ct. (“Press Enterprise I”), 464 U.S. 501 (1984); and Press-Enterprise Co. v. Superior Ct. (“Press Enterprise II”), 478 U.S. 1  (1986). This right has generally been applied to all stages of trial proceedings, including jury selection, and to pre-trial motion hearings. That constitutional law is, of course, binding upon state courts under the Supremacy Clause.  The Alaska Constitution can be interpreted to provide greater protection for First Amendment rights, but not less.  Various court rules and statutes may specify restrictions on or exceptions to the presumptive constitutional right of access but would only be enforceable to the extent that they are not unconstitutional.

In pretrial proceedings in a criminal case, the trial court rejected attempts by the defense counsel in a murder case to obtain ex parte the production of allegedly relevant medical records on the grounds that the request itself would be incriminatory and prejudicial. In a memorandum decision (which does not have precedential value), the Alaska Court of Appeals ruled that any objection to the trial court’s ruling that the defense was not entitled to litigate this issue in secret had not been preserved for appeal. Marquez v. State, 2019 WL 211490, at *2–4 (Alaska Ct. App., Jan. 16, 2019)  This is anecdotal, and even had the appeals court weighed in on the issue, it would have been nonbinding, but the facts underscore the clear presumption against allowing litigation of issue out of the public eye.

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C. Criminal trials

The right of press and public access to judicial proceedings and records has been recognized as a matter of right under the First Amendment in Richmond Newspapers Inc. v. Virginia, 448 U.S. 555 (1980) and its progeny, including Globe Newspaper Co. v. Superior Ct., 457 U.S. 596 (1982); Press-Enterprise Co. v. Superior Ct. (“Press Enterprise I”), 464 U.S. 501 (1984); and Press-Enterprise Co. v. Superior Ct. (“Press Enterprise II”), 478 U.S. 1 (1986). This right has generally been applied to all stages of trial proceedings, including jury selection, and to pre-trial motion hearings. That constitutional law is, of course, binding upon state courts under the Supremacy Clause.  The Alaska Constitution can be interpreted to provide greater protection for First Amendment rights, but not less.  Various court rules and statutes may specify restrictions on or exceptions to the presumptive constitutional right of access but would only be enforceable to the extent that they are not unconstitutional.

In addition to the general right of access to attend criminal trial proceedings, there is also a right to use cameras and electronic devices in doing so, in accordance with Alaska Administrative Rule 50.  This is addressed in detail in section XI.B below.

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D. Post-trial proceedings

The right of press and public access to judicial proceedings and records has been recognized as a matter of right under the First Amendment in Richmond Newspapers Inc. v. Virginia, 448 U.S. 555 (1980) and its progeny, including Globe Newspaper Co. v. Superior Ct., 457 U.S. 596 (1982); Press-Enterprise Co. v. Superior Ct. (“Press Enterprise I”), 464 U.S. 501 (1984); and Press-Enterprise Co. v. Superior Ct. (“Press Enterprise II”), 478 U.S. 1 (1986). This right has generally been applied to all stages of trial proceedings, including jury selection, and to pre-trial motion hearings. There is no apparent reason why post-trial proceedings would not be subject to this presumptive constitutional right of access. That constitutional law is, of course, binding upon state courts under the Supremacy Clause.  The Alaska Constitution can be interpreted to provide greater protection for First Amendment rights, but not less.  Various court rules and statutes may specify restrictions on or exceptions to the presumptive constitutional right of access but would only be enforceable to the extent that they are not unconstitutional.

In addition to the general right of access to attend criminal trial proceedings, there is also a right to use cameras and electronic devices in doing so, in accordance with Alaska Administrative Rule 50.  This is addressed in detail in section XI.B below.

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E. Appellate proceedings

The right of press and public access to judicial proceedings and records has been recognized as a matter of right under the First Amendment in Richmond Newspapers Inc. v. Virginia, 448 U.S. 555 (1980) and its progeny, including Globe Newspaper Co. v. Superior Ct., 457 U.S. 596 (1982); Press-Enterprise Co. v. Superior Ct. (“Press Enterprise I”), 464 U.S. 501 (1984); and Press-Enterprise Co. v. Superior Ct. (“Press Enterprise II”), 478 U.S. 1 (1986). This right has generally been applied to all stages of trial proceedings, including jury selection, and to pre-trial motion hearings. There is no apparent reason why post-trial proceedings would not be subject to this presumptive constitutional right of access. That constitutional law is, of course, binding upon state courts under the Supremacy Clause.  The Alaska Constitution can be interpreted to provide greater protection for First Amendment rights, but not less.

In addition to the general presumptive right of access to attend criminal trial proceedings, there is also a right to use cameras and electronic devices in doing so, in accordance with Alaska Administrative Rule 50.  This is addressed in detail in section XI.B below. While there does not appear to be any rule, statute, or case law expressly articulating the right to attend appellate court proceedings, that is likely to be because the openness of appellate proceedings has always been assumed.  This seemingly obvious assumption is bolstered by language in Administrative Rule 50 establishing procedures to safeguard privacy and confidentiality issues at oral arguments, something that would be unnecessary if these proceedings were not public. For example, Rule 50(f)(2) provides: “In domestic violence, child custody and visitation, paternity, or other similar family proceedings, including child in need of aid cases, in proceedings involving involuntary commitments or the involuntary administration of medications, in criminal cases involving a sexual offense, or in other cases where confidentiality is necessary, (A) counsel or any self-represented party who is arguing the case shall use pseudonyms or initials to protect the privacy of the parties in civil cases, victims in criminal cases, and any affected minors; and (B) any cameras and electronic devices shall be positioned to avoid capturing images of the parties in civil cases, victims in criminal cases, or minors unless the minor is being prosecuted as an adult in a criminal case. If these proceedings were not assumed to be open, such provisions would be unnecessary.”

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IV. Access to criminal court records

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A. In general

Unlike access to records of the executive and legislative branches, which has traditionally been governed primarily by statutes such as the Public Records Act, cases interpreting the PRA, and common law, there is a constitutional right of access to judicial records.  This First Amendment right of access to judicial proceedings and records has become firmly established over the past several decades. See, e.g., Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555 (1980) (order excluding press and public from criminal trial violates First Amendment); Press-Enterprise v. Superior Ct., 464 U.S. 501 (1984) (“Press-Enterprise I”) (order sealing transcript of voir dire proceedings in death case violates First Amendment right of access); Press-Enterprise Co. v. Superior Ct., 478 U.S. 1, 106 S. Ct. 2735 (1986) (“Press-Enterprise II”) (access right extends to preliminary proceedings); Kamakana v. Honolulu, 447 F.3d 1172, 1182 (9th Cir. 2006)(affirming trial court ruling ordering the release of documents sealed under a protective order that were attached to dispositive motions, in a suit brought by a police detective against the city alleging retaliation for his whistleblower activities); Ctr. for Auto Safety v. Chrysler Grp., LLC, 809 F.3d 1092, 1102 (9th Cir. 2016) (presumptive First Amendment right of access to sealed documents, rejecting binary dispositive/non-dispositive distinction in favor of a broader rule that requires release of sealed documents that are simply “more than tangentially related” to the merits of the case, unless compelling reasons require secrecy). There are no cases expressly involving a right of access to judicial records under the Alaska Constitution, which could be interpreted to provide greater constitutional protection, but not to limit the protections afforded by the First Amendment of the U.S. Constitution.

Apart from the constitutional and common law rights of access, access to both case-specific judicial documents and administrative records of the court system is primarily governed by Administrative Rules 37.5 through 37.8 of the Alaska Rules of Court, which state that they are “adopted pursuant to the inherent authority of the Alaska Supreme Court.” These rules state that records are presumptively open to the public, subject to specified exceptions and restrictions, and do not generally differentiate between the openness of civil and criminal records. They are addressed in more detail in section VI.I below (Civil Court Records/Other records issues). It is possible that the application of the general public records statute to the court system might be limited by the separation of powers doctrine. In one 1988 superior court case involving access to search warrant records, the issue was raised, but not resolved. See State v. Sackett, 1JU-587-1036 Cr. (Alaska Super. Ct. 1st Jud. Dist.). A 1994 revision to the OMA expressly excludes the court system and legislative branch from the scope of that Act. However, the Public Records Act contains no such exclusion, and instead has several sections that assume it encompasses access to legislative and judicial records.

In Johnson v. State, 50 P.3d 404 (Alaska Ct. App. 2002), the Court of Appeals affirmed a trial court’s refusal to seal the records of 20-year-old criminal convictions for kidnapping and rape.  The appellate court aknowledged that “courts, commentators, and legislatures have recognized that a person with a criminal record is often burdened by social stigma, subjected to additional investigation, prejudiced in future criminal proceedings, and discriminated against by prospective employers.”  Id. at 406. Nonetheless, it said this case was no different than any number of felons who are successfully rehabilitated yet who can point to negative events in their lives and blame the events on the disclosure of criminal records, id., and that the superior court could reasonably conclude that the public policy reasons for allowing criminal records to remain open to the public outweigh the reasons that Johnson proffered for sealing his records. The court noted policy of open access to public records rooted in both common law and statutes, including the Public Records Act, AS 40.25.120(a), whose exceptions it found inapplicable, and AS 12.62.160, which provides for use and release of criminal justice information relating to convictions. The court’s ruling was specifically based on Alaska Administrative Rule 37.5, which provides that “All public records within the Alaska Court System shall be open to inspection by any member of the public.” This administrative rule defines “public records” to include any “document or item filed with, or prepared, owned, or used, by the Alaska Court System which contains information relating to the conduct of the public's business[.]” The court noted that where there is no express exception to the state's disclosure laws, we balance “the public interest in disclosure on the one hand, and the privacy and reputation interests of the affected individuals together with the government's interest in confidentiality, on the other.” Significantly, the court grounded it’s ruling in the strong tradition of protecting the public’s presumptive right of access to records found in the legislative policy statements and case law relating to the state’s Public Records Act, including the legislature's expressed bias in favor of public disclosure and that the requirement that doubtful cases should be resolved by permitting public inspection. Johnson, 50 P.3d at 406 and n. 10. citing Kenai v. Kenai Peninsula Newspapers Inc., 642 P.2d 1316, 1323 (Alaska 1982). The case law makes clear that a trial court must make findings articulated in the record to justify restrictions on access. The Alaska Supreme Court has underscored the need to create a reviewable record by strongly disapproving a trial court's going “off the record;” if an appellate court does not have a complete record of what took place in the trial court it makes it difficult, and sometimes impossible, for the appellate court to exercise to the fullest extent its power and duty to review the actions of the trial court. In re P.N., 533 P.2d 13, at 19, n. 13. (Alaska 1975); Smith v. State, Board of Dental Examiners, 1984 WL 908389 *3 (Alaska May 2, 1984).

In federal court, ex parte motions and motions to file documents under seal are governed by D. Alaska Local Civil Rule 7.3.  At the suggestion of the press, the title of Local Rule 7.3 was recently changed from “Common Motions” to “Specific Motions,” to underscore that motions for ex parte communications with the court, and for sealed pleadings, ought not to be considered “common” motions like a number of other motions grouped together with them in Rule 7.3.

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B. Arrest records

There does not appear to be case law dealing directly with the openness of arrest records in Alaska. However, they should be presumptively open, and the Court of Appeals’ ruling in Johnson v. State, 50 P.3d 404 (Alaska Ct. App. 2002) is instructive. Mr. Johnson, a felon who had been convicted of kidnapping and rape, served his time, and no longer was on supervised probation and parole moved to have the records of his criminal convictions sealed.  The superior court denied his request, and the Court of Appeals affirmed.  It noted that Alaska Administrative Rule 37.5 lists four exceptions to the general rule that records of the Alaska Court System “shall be open to inspection by any member of the public.”  The appeals court noted that “In cases where there is no express exception to the state’s disclosure laws, we balance ‘the public interest in one hand, and the privacy and reputation interests of the affected individuals together with the government’s interest in confidentiality, on the other.’ We also recognize the legislature’s expressed bias in favor of public disclosure and that ‘doubtful cases should be resolved by permitting public inspection.’” Johnson, 50 P.3d at 406 (citing Kenai v. Kenai Peninsula Newspapers Inc., 642 P.2d 1316, 1323 (Alaska 1982)). Arrest records are not included in the list of exceptions in Rule 37.5 (or in the public records act, AS 40.25.120(6)[A]), and therefore, according to the holding in Johnson, should be considered open, subject to this balancing of interests, which the court found in Johnson favored public access. The statute authorizing or requiring withholding of much electronically-stored information contained in the state’s Criminal Justice Information System (CJIS) excludes any court records from the definition of “criminal justice information,” AS 12.62.900(12).  And in any event, it also provides that “current offender information” may be provided to a person for any purpose unless its release would unreasonably compromise the privacy of a minor or vulnerable adult. AS 12.62.160(b)(8).  This includes information that an identifiable person is currently under arrest for or is charged with a crime, and prosecution is under review or has been deferred by agreement, a warrant exists for the person's arrest, or less than a year has elapsed since the date of the arrest or filing of the charges. AS 12.62.900(14). See also AS 12.62.160(b)(3) (otherwise confidential criminal justice information may be released “if the information is commonly or traditionally provided by criminal justice agencies in order to identify, locate, or apprehend fugitives or wanted persons or to recover stolen property, or for public reporting of recent arrests, charges, and other criminal justice activity.”) (emphasis added).

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C. Dockets

The ability of the public and press to inspect docket sheets is a critical component to providing meaningful access to civil proceedings. The docket sheet provides onlookers an overview of the court proceedings and allows them to ascertain the parties to the case, the materials that have been filed, and the trial judge's decisions. See United States v. Ochoa–Vasquez, 428 F.3d 1015, 1029 n.15 (11th Cir. 2005). Access to docket sheets therefore enhances the appearance of fairness and enlightens the public both to the procedures the district court utilized to adjudicate the claims before it and to the materials it relied upon in reaching its determinations. In this respect, “docket sheets provide a kind of index to judicial proceedings and documents, and endow the public and press with the capacity to exercise their rights guaranteed by the First Amendment.” Hartford Courant Co. [v. Pellegrino], 380 F.3d [83] at 93 [(2d Cir. 2004)] . . . [T]here is a more repugnant aspect to depriving the public and press access to docket sheets: no one can challenge closure of a document or proceeding that is itself a secret.

Doe v. Public Citizen, 749 F.3d 246, 268 (4th Cir. 2014).

The general right of access applies to all Alaska state court records, regardless of the manner of creation, method of collection, form of storage, or the form in which the record is maintained. Alaska Admin. R. 37.5(d)(2). If a court record, or portion thereof, is excluded from public access, there must be a publicly accessible indication of the fact of exclusion but not the content of the exclusion except for records that are confidential (as opposed to sealed), according to Alaska Admin. R. 37.5(d)(3). However, Administrative Rule 40 requires the clerk of court to list a case on the public case index even though the case file has been sealed or made confidential under this rule—unless it comes within one of the specified exceptions—and the public index must be made available to the public in electronic form except as limited by Administrative Rule 37.8. Only the presiding judge of the judicial district has the power to remove a party’s name from the public case index, and this action may be taken only in very limited circumstances, and as specified in the administrative rules. Alaska Admin. R. 40(b) and (c). A more detailed discussion of the rules governing the public case index is found in subsection VI.I below (Access to civil court records/Other civil court records issues).

In Johnson v. State, 50 P.3d 404 (Alaska Ct. App. 2002), the Court of Appeals affirmed the trial court’s refusal to seal the records of 20-year-old criminal convictions for kidnapping and rape, based mainly on Alaska Admin. R. 37.5.  The appellate court aknowledged that “courts, commentators, and legislatures have recognized that a person with a criminal record is often burdened by social stigma, subjected to additional investigation, prejudiced in future criminal proceedings, and discriminated against by prospective employers.”  Johnson, 50 P.3d at 406. Nonetheless, it said this case was no different than any number of felons who are successfully rehabilitated yet who can point to negative events in their lives and blame the events on the disclosure of criminal records, id., and that the superior court could reasonably conclude that the public policy reasons for allowing criminal records to remain open to the public outweigh the reasons that Johnson proffered for sealing his records. This case is addressed further in connection with general considerations with respect to access to criminal court records in section IV.A above.

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The record of proceedings relating to applications for and issuance of search warrants, and all documents related to those proceedings, including search warrants, affidavits, receipts and inventories, are required to be kept sealed until the warrant is identified in a charging document (or in a notice of subsequent warrants filed by the prosecutor after the initial charging document), unless the record is ordered unsealed by the court. Alaska Crim. R. 37(e). After the warrant is identified in a charging document or in a notice filed by the prosecutor, the record of proceedings and all related documents must be open to public inspection unless the court, for good cause shown, orders that the documents remain sealed for a further period. The initial charging document in all prosecutions must be accompanied by a listing of the numbers of all warrants issued in relation to the case unless the court waives this requirement for good cause shown. The prosecutor shall file notice of subsequent warrants issued in relation to the case once executed. If four years have elapsed since the issuance of the warrant and no charges related to the warrant have been filed, the record of proceedings and all related documents are unsealed and are thereafter be deemed “confidential” instead of “sealed,” unless the court, for good cause shown, delays the unsealing.  Id.

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E. Discovery materials

In general, parties cannot be compelled to make discovery materials, as such, public, but discovery materials attached to substantive motions are presumed to be public in accordance with cases applying constitutional and common law principles of access to judicial records. In Henry v. Municipality of Anchorage, No. 3:15-cv-00187-RRB (D. Alaska), the federal district court judge presiding over an Anchorage police detective’s high profile suit against his former employer, granted a motion filed by press intervenors Anchorage Daily News and KTUU-TV to compel release of a significant 97-page internal investigation report prepared for the Municipality by a police consultant and used in the litigation. (Beistline, J., Order Motions Regarding Access to Brown Report and Related Judicial Records, Dkt. 918, September 25, 2018). The report had been produced to plaintiff during discovery subject to a protective order stipulated to by the parties.  The court agreed with the press that the “good cause” standard that might suffice to warrant a protective order was not sufficient to justify continued withholding of the document once it had been used in court proceedings. Instead, a compelling justification for nondisclosure would need to be shown.

The Municipality argued that the Brown Report and its attachments could not be disclosed because they “contain highly confidential and sensitive information regarding sexual assault victims, confidential informants, and other law enforcement investigations.” Alternatively, the Municipality argued that if the Court were to grant access to the Brown Report, in whole or in part, it should delay doing so until after the trial was over to avoid tainting the jury pool. The court agreed that “compelling reasons” would need to be shown to justify nondisclosure, and that “unlike private materials unearthed during discovery, judicial records (which the Brown Report became when it was relied upon in motions filed during the suit) are public documents almost by definition, and the public is entitled to access almost by default.” The court found the Municipality had not adequately explained why modest redactions that the press agreed would be appropriate could not adequately address the legitimate concerns about protecting sexual assault victims, juveniles, confidential informants, HIPAA, and similar interests.  The court stated that “potential jurors” who the Municipality claimed would be “tainted before trial even begins” as a result of news coverage of the Report would be identified during jury selection and excused. It also found the Plaintiff had had an opportunity to present “his side” of the story in numerous public documents in the Court record already, and said “the test is whether there is ‘actual prejudice preventing a fair trial, not some arbitrary proximity between news coverage and a trial.”  The court found that redactions would be sufficient to meet the Municipality’s concerns that disclosure of confidential references to investigations and activities of law enforcement agencies other than APD might compromise ongoing investigations, impede crime prevention, and endanger officers and civilians.” The court ordered disclosure and rejected the Municipality’s argument to withhold it until after trial.  The court found that there was no compelling reason to withhold the Report once it was redacted. But given that a jury was about to be picked around the same time as the Report would be ready, the court exercised its discretion to delay the release for a few days until completion of jury selection.

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F. Pretrial motions and records

The right of press and public access to judicial proceedings and records has been recognized as a matter of right under the First Amendment in Richmond Newspapers Inc. v. Virginia, 448 U.S. 555 (1980) and its progeny, including Globe Newspaper Co. v. Superior Ct., 457 U.S. 596 (1982); Press-Enterprise Co. v. Superior Ct. (“Press Enterprise I”), 464 U.S. 501 (1984); and Press-Enterprise Co. v. Superior Ct. (“Press Enterprise II”), 478 U.S. 1 (1986). This right has been applied to all stages of trial proceedings, including jury selection, and to pre-trial motion hearings. that constitutional law is, of course, binding upon state courts under the Supremacy Clause.  The Alaska Constitution can be interpreted to provide greater protection for First Amendment rights, but not less.  Various court rules and statutes may specify restrictions on or exceptions to the presumptive constitutional right of access to Alaska court records—most notably, Alaska Administrative Rules of Court 37.5 through 37.8—but would only be enforceable to the extent that they are not unconstitutional.

In Henry v. Municipality of Anchorage, No. 3:15-cv-00187-RRB (D. Alaska), the federal district court judge presiding over an Anchorage police detective’s high profile suit against his former employer, granted a motion filed by press intervenors Anchorage Daily News and KTUU-TV to compel release of a significant 97-page internal investigation report prepared for the Municipality by a police consultant and used in the litigation. (Beistline, J., Order Motions Regarding Access to Brown Report and Related Judicial Records, Dkt. 918, September 25, 2018). The report had been produced to plaintiff during discovery subject to a stipulated protective order stipulated to by the parties.  The court agreed with the press that the “good cause” standard that might suffice to warrant a protective order was not sufficient to justify continued withholding of the document once it had been used in connection with various motions filed in the court proceeding, and that instead, a compelling justification for nondisclosure would need to be shown. This Order is discussed in further detail in the preceding section concerning access to discovery materials.

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G. Trial records

The right of press and public access to judicial proceedings and records has been recognized as a matter of right under the First Amendment in Richmond Newspapers Inc. v. Virginia, 448 U.S. 555 (1980) and its progeny, including Globe Newspaper Co. v. Superior Ct., 457 U.S. 596 (1982); Press-Enterprise Co. v. Superior Ct. (“Press Enterprise I”), 464 U.S. 501 (1984); and Press-Enterprise Co. v. Superior Ct. (“Press Enterprise II”), 478 U.S. 1 (1986). This right has been applied to all stages of trial proceedings, including jury selection, and to pre-trial motion hearings. that constitutional law is, of course, binding upon state courts under the Supremacy Clause.  The Alaska Constitution can be interpreted to provide greater protection for First Amendment rights, but not less.  Various court rules and statutes may specify restrictions on or exceptions to the presumptive constitutional right of access to Alaska court records—most notably, Alaska Administrative Rules of Court 37.5 through 37.8—but would only be enforceable to the extent that they are not unconstitutional.

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H. Post-trial records

Alaska appellate courts have not addressed the issue of post-trial records specifically, but the case law applying a constitutional and/or common law right of access to judicial proceedings and records, and court rules like Alaska Administrative Rule 37.5, presumably apply to openness of all court records. One issue to watch out for is the possibility that certain records, particularly exhibits, may no longer be available after a trial.  Court rules or common practice, or orders entered by a court at the conclusion of a trial or—like many protective orders entered earlier in the case with provisions that take effect at the close of proceedings—may require the return of documents, particularly exhibits, to the party that submitted them. (These, in turn, may be presumptively subject to return to the party that initially produced them pursuant to the terms of a protective order.)  For this reason, it is highly desirable, and most often necessary, to seek access to any such documents while they are still in the actual or constructive possession of the court—or at the very least still in the possession of parties, though that may be insufficient.  Waiting too long may preclude access to documents if the court concludes that it no longer has the ability to address the issue and afford the relief sought in a motion for access to judicial records, because they are no longer judicial records.  It is better to obtain trial exhibits as they are admitted, or promptly at the conclusion of a trial, than to take a chance that they will be available later.

In Johnson v. State, 50 P.3d 404 (Alaska Ct. App. 2002), the Court of Appeals affirmed the trial court’s refusal to seal the records of 20-year-old criminal convictions for kidnapping and rape, based mainly on Alaska Admin. R. 37.5.  The appellate court aknowledged that “courts, commentators, and legislatures have recognized that a person with a criminal record is often burdened by social stigma, subjected to additional investigation, prejudiced in future criminal proceedings, and discriminated against by prospective employers.”  Johnson, 50 P.3d at 406. Nonetheless, it said this case was no different than any number of felons who are successfully rehabilitated yet who can point to negative events in their lives and blame the events on the disclosure of criminal records, id., and that the superior court could reasonably conclude that the public policy reasons for allowing criminal records to remain open to the public outweigh the reasons that Johnson proffered for sealing his records. This case is addressed further in connection with general considerations with respect to access to criminal court records in section IV.A.

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I. Appellate records

According to Alaska Rule of Appellate Procedure 512.5, “A record on appeal is open to public inspection except that papers filed under seal in the trial court, recordings or transcripts of closed hearings held in the trial court, and exhibits submitted or introduced at closed hearings in the trial court, will be maintained under seal while they constitute part of a record on appeal.” The rule provides further that papers filed in the appellate courts are open unless the court orders otherwise.

A motion to file a paper under seal or to treat a paper as a confidential document in the appellate court, the response to such a motion, and the order ruling on such a motion, are open to public inspection and shall not themselves be filed under seal.  A paper may be lodged with the court along with a motion to file it under seal or to treat it as a confidential document. Unless the court otherwise orders, it is not open to public inspection while the motion to file it under seal or confidentially is pending. If the motion is denied, and the paper has been lodged along with the motion, the movant has the option of withdrawing the paper or leaving it on file open to public inspection. Alaska App. R. 512.5(c) A paper shall not be withheld from public inspection because other papers included in the same case file or the same record on appeal have been filed under seal or are confidential and are not open to public inspection.  Alaska App. R. 512.5(c).

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J. Other criminal court records issues

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.

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V. Access to civil proceedings

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A. In general

Access to judicial proceedings is primarily governed by United States Supreme Court rulings recognizing a First Amendment-based right of press and public access to judicial proceedings. See, e.g., Richmond Newspapers Inc. v. Virginia, 448 U.S. 555 (1980); Globe Newspaper Co. v. Superior Ct., 457 U.S. 596 (1982); Press-Enterprise Co. v. Superior Ct. (“Press Enterprise I”), 464 U.S. 501 (1984); and Press-Enterprise Co. v. Superior Ct. (“Press Enterprise II”), 478 U.S. 1 (1986). This right has been applied to all stages of trial proceedings, including jury selection, and to pre-trial motion hearings. The Alaska Court of Appeals discussed the constitutional right of access in Renkel v. State, 807 P.2d 1087 (Alaska Ct. App. 1991).  Citing Press-Enterprise I, the court in Renkel held that an Alaska statute mandating closure of courtrooms to the public in sexual assault cases involving minor victims was unconstitutional, and that, absent particularized findings supporting closure, closure of a court to the general public during testimony of minor victims is reversible error. Id. at 1089, 1092. See also Bright v. State, 875 P.2d 100, 105–110 (Alaska Ct. App 2004), discussed in detail the introductory section I.A above (“This judicial power to restrict or deny public access to court proceedings may be exercised only when unusual circumstances imperil a more important societal value, and then only when alternative measures have been considered and found wanting; strictest scrutiny, specific finding supported in the record, and compelling reasons would be needed to justify decision to conduct trial in prison rather than in regular public courtroom.”).

Because the press and public generally have a constitutional right to attend court proceedings, we don’t need to ask permission to do that.  However, neither the federal nor state constitutions have thus far been construed to cover use of video or still cameras or audio recording devices, so these activities are governed by court rules. In Alaska, camera and audio coverage of court proceedings, as well as use of sketch artists, is covered by Alaska Administrative Rule 50. Rule 50 is addressed in more detail in section XI.B of this Open Courts Compendium. The federal local rule generally prohibiting use of cameras and recording devices in Alaska’s federal court facilities, D. Alaska Local R. 83.3, is set out in section XI.B, below.

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B. Pre-trial proceedings

The right of press and public access to judicial proceedings and records has been recognized as a matter of right under the First Amendment in Richmond Newspapers Inc. v. Virginia, 448 U.S. 555 (1980) and its progeny, including Globe Newspaper Co. v. Superior Ct., 457 U.S. 596 (1982); Press-Enterprise Co. v. Superior Ct. (“Press Enterprise I”), 464 U.S. 501 (1984); and Press-Enterprise Co. v. Superior Ct. (“Press Enterprise II”), 478 U.S. 1 (1986). This right has been applied to all stages of trial proceedings, including jury selection, and to pre-trial motion hearings. that constitutional law is, of course, binding upon state courts under the Supremacy Clause.  The Alaska Constitution can be interpreted to provide greater protection for First Amendment rights, but not less.  Various court rules and statutes may specify restrictions on or exceptions to the presumptive constitutional right of access to Alaska court records but would only be enforceable to the extent that they are not unconstitutional.

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C. Trials

The right of press and public access to judicial proceedings and records has been recognized as a matter of right under the First Amendment in Richmond Newspapers Inc. v. Virginia, 448 U.S. 555 (1980) and its progeny, including Globe Newspaper Co. v. Superior Ct., 457 U.S. 596 (1982); Press-Enterprise Co. v. Superior Ct. (“Press Enterprise I”), 464 U.S. 501 (1984); and Press-Enterprise Co. v. Superior Ct. (“Press Enterprise II”), 478 U.S. 1 (1986). This right has been applied to all stages of trial proceedings, including jury selection, and to pre-trial motion hearings. That constitutional law is, of course, binding upon state courts under the Supremacy Clause.  The Alaska Constitution can be interpreted to provide greater protection for First Amendment rights, but not less.  Various court rules and statutes may specify restrictions on or exceptions to the presumptive constitutional right of access to Alaska court records but would only be enforceable to the extent that they are not unconstitutional. The Alaska Court of Appeals discussed the constitutional right of access in Renkel v. State, 807 P.2d 1087 (Alaska Ct. App. 1991).  Citing Press-Enterprise I, the court in Renkel held that an Alaska statute mandating closure of courtrooms to the public in sexual assault cases involving minor victims was unconstitutional, and that, absent particularized findings supporting closure, closure of a court to the general public during testimony of minor victims is reversible error. Id. at 1089, 1092.

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D. Post-trial proceedings

The state has not addressed the issue of post-trial records specifically, but the case law applying a constitutional and/or common law right of access to judicial proceedings and records, and court rules like Alaska Administrative Rule 37.5, presumably apply to openness of all court records. One issue to watch out for is the possibility that certain records, particularly exhibits, may no longer be available after a trial.  Court rules or common practice, or orders entered by a court at the conclusion of a trial or—like many protective orders entered earlier in the case with provisions that take effect at the close of proceedings—may require the return of documents, particularly exhibits, to the party that submitted them. (These, in turn, may be presumptively subject to return to the party that initially produced them pursuant to the terms of a protective order.)  For this reason, it is highly desirable, and most often necessary, to seek access to any such documents while they are still in the actual or constructive possession of the court.

The Supreme Court can order the parties to a civil appeal to participate in a settlement conference, on its own motion or in response to a motion from a party.  Settlement conferences are held in private and are confidential.  Alaska App. R. 222.

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E. Appellate proceedings

There are no court rules requiring, permitting, or otherwise addressing closed proceedings of the Alaska appellate courts. The court system can record for broadcast or posting on the internet all regularly scheduled oral arguments before the supreme court or the court of appeals. The presumption of openness that applies to all judicial proceedings is underscored by the fact that rules governing appellate proceedings provide for very specific measures to protect privacy and related interests within the context of open proceedings. In particular, in domestic violence, child custody and visitation, paternity, or other similar family proceedings, including child in need of aid cases, in proceedings involving involuntary commitments or the involuntary administration of medications, in criminal cases involving a sexual offense, or in other cases where confidentiality is necessary, those arguing the case must use pseudonyms or initials to protect the privacy of the parties in civil cases, victims in criminal cases, and any affected minors; and any cameras and electronic devices must be positioned to avoid capturing images of the parties in these civil cases, victims in criminal cases, or minors unless the minor is being prosecuted as an adult in a criminal case. Alaska Admin. R. 50(f).

While the appellate proceedings are open, usage of cameras or electronic devices at Supreme Court or Court of Appeals oral arguments requires advance prior approval of the clerk of the appellate courts, and is subject to the provisions of subsections (a) and (b) of Administrative Rule 50 governing all use of cameras in electronic devices in court facilities.  Any provisions of Rule 50 addressing photographing includes sketching.  Any restrictions on coverage must be stated on the record or in writing, narrowly drawn by the least restrict means, and reasonably related to the appellate clerk’s authority to ensure decorum and prevent distractions, the fair administration of justice, and “protection of the reasonable privacy interests of a minor and any other person.” Confidential communications between counsel and client, between clients, or between counsel, and party or counsel notes, may not be filmed, videotaped, recorded, broadcast, streamed or posted on the internet. The appellate clerk may also impose other restrictions and terminate coverage if warranted under the circumstances. A person or organization whose request for camera or electronic device use has been denied or restricted may ask the appellate clerk in writing for reconsideration. This request can be made in the form of a letter to the appellate clerk, and can made through an attorney, or, despite the statute requiring corporations to appear in court only through attorneys, it can be made by an officer or employee of an organization.  The reconsideration request must state the reasons why use of a camera or an electronic device should be allowed and must be served on all parties to the case.

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VI. Access to civil records

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A. In general

Unlike access to records of the executive and legislative branches, which has traditionally been governed primarily by statutes such as the Public Records Act, cases interpreting the PRA, and common law, there is a constitutional right of access to judicial records.  This First Amendment right of access to judicial proceedings and records has become firmly established over the past several decades. See, e.g., Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555 (1980) (order excluding press and public from criminal trial violates First Amendment); Press-Enterprise v. Superior Ct., 464 U.S. 501 (1984) (“Press-Enterprise I”) (order sealing transcript of voir dire proceedings in death case violates First Amendment right of access); Press-Enterprise Co. v. Superior Ct., 478 U.S. 1 (1986) (“Press-Enterprise II”) (access right extends to preliminary proceedings); Kamakana v. Honolulu, 447 F.3d 1172, 1182 (9th Cir. 2006) (affirming trial court ruling ordering the release of documents sealed under a protective order that were attached to dispositive motions, in a suit brought by a police detective against the city alleging retaliation for his whistleblower activities); Ctr. for Auto Safety v. Chrysler Grp., LLC, 809 F.3d 1092, 1102 (9th Cir. 2016) (presumptive First Amendment right of access to sealed documents, rejecting binary dispositive/non-dispositive distinction in favor of a broader rule that requires release of sealed documents that are simply “more than tangentially related” to the merits of the case, unless compelling reasons require secrecy). There are no cases expressly involving a right of access to judicial records under the Alaska Constitution, which could be interpreted to provide greater constitutional protection, but not to limit the protections afforded by the First Amendment of the U.S. Constitution.

Apart from the constitutional and common law rights of access, access to both case-specific judicial documents and administrative records of the court system is primarily governed by Administrative Rules 37.5 through 37.8 of the Alaska Rules of Court, which state that they are “adopted pursuant to the inherent authority of the Alaska Supreme Court.” These rules state that records are presumptively open to the public, subject to specified exceptions and restrictions, and 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). It is possible that the application of the general public records statute to the court system might be limited by the separation of powers doctrine. In one 1988 superior court case involving access to search warrant records, the issue was raised, but not resolved. See, State v. Sackett, 1JU-587-1036 Cr. (Alaska Super. Ct. 1st Jud. Dist.). A 1994 revision to the OMA expressly excludes the court system and legislative branch from the scope of that Act. However, the Public Records Act contains no such exclusion, and instead has several sections that assume it encompasses access to legislative and judicial records.

Any request to limit access must be made in writing to the court and served on all parties to the case unless otherwise ordered. A request to limit access, the response to such a request, and the order ruling on such a request must be written in a manner that does not disclose non-public information, are public records, and shall not themselves be sealed or made confidential. Alaska. Admin. R. 37.6(d).

In Benjamin S. v. Stephenie S., 2018 WL 794523 (Alaska Feb. 7, 2018), the Supreme Court upheld the trial court’s refusal, in a child custody proceeding following a divorce, to “expunge” from the record allegations of domestic violence against the husband.  (This unpublished opinion replaces an earlier, 2017, Supreme Court opinion that the Court issued in November 2017, and then withdrew it, changing only an unrelated paragraph.)  Though Benjamin’s objections were based more broadly on Admin. R. 37.5 through 37.8 and 40 in the trial court, on appeal he relied on Admin. R. 37.6, which provides for courts to “limit access to public information in an individual case record.”  The Supreme Court observed, “Parties are entitled and expected to be adverse in litigation, and litigants do not have a right to have claims or statements with which they disagree removed from the record. The superior court rightly explained to Benjamin that Administrative Rule 37.6(b) was not intended to ‘assuage the emotional distress that a domestic relations litigant in a high conflict case might experience.’” Id. at *7. It also noted Benjamin's failure to specify how he would be harmed or even what specific allegations would cause such harm. “‘In determining whether to limit access to a case file under Alaska Administrative Rule 37.6, trial courts must weigh the public interest in disclosure against any legitimate interest in confidentiality.’” Id. at 7–8. The Court held that the trial court had not abused its discretion in deciding that Benjamin had not made a sufficient showing to justify removing anything from the record.

Compare Timothy W. v. Julia M., 403 P.3d 1095, 1103–04 (Alaska 2017), in which the Alaska Supreme Court upheld a challenge by a litigant to the trial judge’s refusal to close certain post-dissolution proceedings to modify child visitation provisions.  The father, an attorney, appealed the judge’s ruling under Admin. R. 37.6(b), claiming “the trial judge's comments ... would damage his ability to practice law in this community, and impact his ability to earn a living.”  The trial judge had initially limited public access to the record in the case, but found that this had “been a license for bad behavior by both [parties].” Id. The trial judge considered arguments for and against closure. The court emphasized that its foremost concern was whether the children would be hurt by making the record public, and it noted that neither party had been able to explain how that might occur. It observed that “mudslinging happens all the time in custody disputes” and that if it closed the record every time it heard arguments along those lines then courts “wouldn't have any open proceedings.” Id. The Supreme Court found that the trial court considered the mandated factors and did not consider any improper factors, and held that the trial court did not abuse its discretion by electing not to close the hearings in question.

In an unpublished opinion in Zachary v. Coon, 1998 WL 34347957 (Alaska Feb. 25, 1998), the Alaska Supreme Court addressed questions about sealing portions of the record to protect a juvenile in a civil lawsuit seeking damages for sexual abuse in which the minor was not a party. The Supreme Court found that a balancing test was sufficient to protect the interests of the minor, without stretching statutory exceptions to fit the facts of the case.  The Court reviewed various statutes and rules that the parties argued embodied a public policy in favor of sealing records where a minor's interest in non-disclosure is at risk.  However, the Court noted that this case— a suit between adults for acts that did not directly involve the minor—did not concern the same kind of issues as those the cited statutes address.  And, it observed that when the court has determined that no express exception to the public records act applies, “the public interest in disclosure” is balanced against “the privacy and reputational interests of the affected individuals together with the government's interest in confidentiality.” Id. at *3 (quoting Municipality of Anchorage v. Anchorage Daily News, 794 P.2d 584, 590 (Alaska 1990).

In federal court, ex parte motions and motions to file documents under seal are governed by D. Alaska Local Civil Rule 7.3.  At the suggestion of the press, the title of Local Rule 7.3 was recently changed from “Common Motions” to “Specific Motions,” to underscore that motions for ex parte communications with the court, and for sealed pleadings, ought not to be considered “common” motions like a number of other motions grouped together with them in Rule 7.3.

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B. Dockets

The ability of the public and press to inspect docket sheets is a critical component to providing meaningful access to civil proceedings. The docket sheet provides onlookers an overview of the court proceedings and allows them to ascertain the parties to the case, the materials that have been filed, and the trial judge's decisions. See United States v. Ochoa–Vasquez, 428 F.3d 1015, 1029 n.15 (11th Cir. 2005). Access to docket sheets therefore enhances the appearance of fairness and enlightens the public both to the procedures the district court utilized to adjudicate the claims before it and to the materials it relied upon in reaching its determinations. In this respect, “docket sheets provide a kind of index to judicial proceedings and documents, and endow the public and press with the capacity to exercise their rights guaranteed by the First Amendment.” Hartford Courant Co. [v. Pellegrino], 380 F.3d [83] at 93 [(2nd Cir.)] . . .  [T]here is a more repugnant aspect to depriving the public and press access to docket sheets: no one can challenge closure of a document or proceeding that is itself a secret.

Doe v. Public Citizen, 749 F.3d 246, 268 (4th Cir. 2014).

The general right of access applies to all Alaska state court records, regardless of the manner of creation, method of collection, form of storage, or the form in which the record is maintained. Alaska Admin. R. 37.5(d)(2). If a court record, or portion thereof, is excluded from public access, there must be a publicly accessible indication of the fact of exclusion but not the content of the exclusion except for records that are confidential (as opposed to sealed), according to Admin. R. 37.5(d)(3). However, Administrative Rule 40 requires the clerk of court to list a case on the public case index even though the case file has been sealed or made confidential under this rule—unless it comes within one of the specified exceptions noted below—and the public index must be made available to the public in electronic form except as limited by Admin. R. 37.8. Only the presiding judge of the judicial district has the power to remove a party’s name from the public case index, and this action may be taken only in very limited circumstances, and as specified in the administrative rules. Admin. R. 40(b) and (c). A more detailed discussion of the rules governing the public case index is found in subsection VI.I below (Access to civil court records/Other civil court records issues).

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C. Discovery materials

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D. Pre-trial motions and records

The right of press and public access to judicial proceedings and records has been recognized as a matter of right under the First Amendment in Richmond Newspapers Inc. v. Virginia, 448 U.S. 555 (1980) and its progeny, including Globe Newspaper Co. v. Superior Ct., 457 U.S. 596 (1982); Press-Enterprise Co. v. Superior Ct. (“Press Enterprise I”), 464 U.S. 501 (1984); and Press-Enterprise Co. v. Superior Ct. (“Press Enterprise II”), 478 U.S. 1 (1986). This right has been applied to all stages of trial proceedings, including jury selection, and to pre-trial motion hearings. Kamakana v. Honolulu, 447 F.3d 1172, 1182 (9th Cir. 2006) (affirming trial court ruling ordering the release of documents sealed under a protective order that were attached to dispositive motions, in a suit brought by a police detective against the city alleging retaliation for his whistleblower activities); Ctr. for Auto Safety v. Chrysler Grp., LLC, 809 F.3d 1092, 1102 (9th Cir. 2016) (presumptive First Amendment right of access to sealed documents, rejecting binary dispositive/non-dispositive distinction in favor of a broader rule that requires release of sealed documents that are simply “more than tangentially related” to the merits of the case, unless compelling reasons require secrecy). Federal constitutional law is, of course, binding upon state courts under the Supremacy Clause.  There are no cases expressly involving a right of access to judicial records under the Alaska Constitution, which could be interpreted to provide greater constitutional protection, but not to limit the protections afforded by the First Amendment of the US Constitution. Various court rules and statutes may specify restrictions on or exceptions to the presumptive constitutional right of access to Alaska court records—most notably, Alaska Administrative Rules of Court 37.5 through 37.8—but would only be enforceable to the extent that they are not unconstitutional. In general, parties cannot be compelled to make discovery materials, as such, public, but discovery materials attached to substantive motions are presumed to be public in accordance with cases applying constitutional and common law principles of access to judicial records.

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E. Trial records

The right of press and public access to judicial proceedings and records has been recognized as a matter of right under the First Amendment in Richmond Newspapers Inc. v. Virginia, 448 U.S. 555 (1980) and its progeny, including Globe Newspaper Co. v. Superior Ct., 457 U.S. 596 (1982); Press-Enterprise Co. v. Superior Ct. (“Press Enterprise I”), 464 U.S. 501 (1984); and Press-Enterprise Co. v. Superior Ct. (“Press Enterprise II”), 478 U.S. 1 (1986). This right has been applied to all stages of trial proceedings, including jury selection, and to pre-trial motion hearings. that constitutional law is, of course, binding upon state courts under the Supremacy Clause.  The Alaska Constitution can be interpreted to provide greater protection for First Amendment rights, but not less.  Various court rules and statutes may specify restrictions on or exceptions to the presumptive constitutional right of access to Alaska court records—most notably, Alaska Administrative Rules of Court 37.5 through 37.8—but would only be enforceable to the extent that they are not unconstitutional.

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F. Settlement records

The Alaska Supreme Court held in 1989 that the public is entitled to access to settlement agreements in which at least one party is a public entity, despite confidentiality provisions included in the agreement. “We hold that a public agency may not circumvent the statutory disclosure requirements by agreeing to keep the terms of a settlement agreement confidential. Under Alaska law, a confidentiality provision such as the one in the case at bar is unenforceable because it violates the public records disclosure statutes.” Anchorage School Dist. v. Daily News, 779 P.2d 1191, 1193 (Alaska 1989) (citing AS 44.62.310–.312).

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G. Post-trial records

The state has not addressed the issue of post-trial records specifically, but the case law applying a constitutional and/or common law right of access to judicial proceedings and records, and court rules like Alaska Admin. R. 37.5, presumably apply to openness of all court records. One issue to watch out for is the possibility that certain records, particularly exhibits, may no longer be available after a trial.  Court rules or common practice, or orders entered by a court at the conclusion of a trial or—like many protective orders entered earlier in the case with provisions that take effect at the close of proceedings—may require the return of documents, particularly exhibits, to the party that submitted them. (These, in turn, may be presumptively subject to return to the party that initially produced them pursuant to the terms of a protective order.)  For this reason, it is highly desirable, and most often necessary, to seek access to any such documents while they are still in the actual or constructive possession of the court—or at the very least still in the possession of parties, though that may be insufficient.  Waiting too long may preclude access to documents if the court concludes that it no longer has the ability to address the issue and afford the relief sought in a motion for access to judicial records, because they are no longer judicial records.  It is better to obtain trial exhibits as they are admitted, or promptly at the conclusion of a trial, than to take a chance that they will be available later.  Where public agencies are involved in the litigation, it may be possible to obtain such documents as public records—but this may be problematic for other reasons, including the fact that documents that might be obtained as judicial records because they have been used in court proceedings may fall within exceptions from disclosure requirements of public records law.  And, a constitutional right of access presumably provides a stronger basis for seeking disclosure, through the courts, than a statutory right of access applicable to records sought from executive branch agencies through a public records act request.

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H. Appellate records

According to Alaska Rule of Appellate Procedure 512.5, “A record on appeal is open to public inspection except that papers filed under seal in the trial court, recordings or transcripts of closed hearings held in the trial court, and exhibits submitted or introduced at closed hearings in the trial court, will be maintained under seal while they constitute part of a record on appeal.” The rule provides further that papers filed in the appellate courts are open unless the court orders otherwise.

A motion to file a paper under seal or to treat a paper as a confidential document in the appellate court, the response to such a motion, and the order ruling on such a motion, are open to public inspection and shall not themselves be filed under seal.  A paper may be lodged with the court along with a motion to file it under seal or to treat it as a confidential document. Unless the court otherwise orders, it is not open to public inspection while the motion to file it under seal or confidentially is pending. If the motion is denied, and the paper has been lodged along with the motion, the movant has the option of withdrawing the paper or leaving it on file open to public inspection. Alaska App. R. 512.5(c). A paper shall not be withheld from public inspection because other papers included in the same case file or the same record on appeal have been filed under seal or are confidential and are not open to public inspection.  Alaska App. R. 512.5(c).

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I. Other civil court records issues

Access to both case-specific judicial documents and administrative records of the court system is primarily governed by Administrative Rules 37.5 through 37.8 of the Alaska Rules of Court, which state that they are “adopted pursuant to the inherent authority of the Alaska Supreme Court.” Any such court rules, like statutes, would of course be subject to review for possible unenforceability if they violate the federal or state constitution as written or applied.  Administrative Rule 37.5, which previously governed access to judicial records, was substantially revised, effective October 2006. Although the new rules apply to all court records, court personnel were not required to redact or restrict information that otherwise was public in case records and administrative records created before October 15, 2006.  Alaska Admin. R. 37.5(a)(2).

According to Rule 37.5, the purposes of these rules is to provide access to court records in a manner that maximizes accessibility to court records; supports the role of the judiciary; promotes government accountability; contributes to public safety; minimizes risk of injury to individuals; protects individual privacy rights and interests; protects proprietary business information; minimizes reluctance to use the courts to resolve disputes; makes most effective use of court personnel; provides excellent customer service; and does not unduly burden the ongoing business of the judiciary.  Alaska Admin. R. 37.5(a)(1).

•  General Access to Court Records.  Court records are accessible to the public, except as provided in Alaska Admin. R. 37.5(e). The rules provide that all members of the public will have the same access to court records under the rules, with a couple not-generally-applicable exceptions. No distinction is made between the press and other “members of the public.” Admin. R. 37.5(b). Court records that are accessible to the public shall be open to inspection at all times during the regular office hours of the courts. The administrative director of the court system is responsible for establishing written guidelines to insure reasonable access and opportunity to inspect public court records and to insure their preservation and safekeeping. Admin. R. 37.5(d)(1), (f). The general right of access applies to all court records, regardless of the manner of creation, method of collection, form of storage, or the form in which the record is maintained. Admin. R. 37.5(d)(2). If a court record, or portion thereof, is excluded from public access, there must be a publicly accessible indication of the fact of exclusion but not the content of the exclusion except for records that are confidential (as opposed to sealed), according to Admin. R. 37.5(d)(3). However, Administrative Rule 40 requires the clerk of court to list a case on the public case index even though the case file has been sealed or made confidential under this rule—unless it comes within one of the specified exceptions noted below—and the public index must be made available to the public in electronic form except as limited by Administrative Rule 37.8.  Only the presiding judge of the judicial district has the power to remove a party’s name from the public case index, and this action may be taken only in very limited circumstances, and as specified in the administrative rules. Admin. R. 40(b) and (c).

The presiding judge of a judicial district may direct the clerk of the court to substitute “Not Published” for a party's true name on the public index if the presiding judge finds that the issues in the case involve matters of a sensitive and highly personal nature, that publication of the name could expose a person to harassment, injury, ridicule, or personal embarrassment, and that protection of the party's name outweighs the public's interest in disclosure and any prejudice to the opposing party. If the presiding judge determines that the true name of more than one party in a case should be protected under this subsection, the parties shall be distinguished by number (“Not Published 1, Not Published 2”). Admin. R. 40(b). The presiding judge of a judicial district may direct the clerk of court to remove a party's name from the public index for a period of five years if the presiding judge finds that publication of the name is likely to result in substantial physical harm to the party or members of the party's household and protection of the party's name outweighs the public's interest in disclosure. After five years, the party's name will appear on the public index unless the presiding judge orders the name protected for an additional period of time, upon another showing that publication of the name is likely to result in substantial physical harm to the party or members of the party's household. Admin. R. 40(c). Unless otherwise ordered, while a request under subsection 40(b) or (c) is pending, (1) the party's name will not be added to the public index if the request is made with or in the filing that initiates the case; and (2) the party's name will remain on the public index if the request is made in an existing case. Admin. R. 40(d).

There are eleven enumerated exceptions in Admin. R. 40(a), pursuant to which a case might be excluded from the public index, including party names protected under Rule 40(b) and (c) rulings as discussed in the preceding paragraph, and criminal and minor offense cases dismissed because the prosecuting authority declined to file a charging document or for lack of probable cause, or due to identity errors, or because the named defendant was a minor wrongly charged in adult court with an offense within the jurisdiction for delinquency proceedings. They also include cases designated as confidential or sealed by statute or court rule, unless the index to those cases is public under court rules, and domestic violence, stalking or sexual assault protective order cases dismissed at or before a hearing on an ex parte petition because there is not sufficient evidence the petitioner is a victim or otherwise meets the requirements as defined by the relevant statute, and certain foreign domestic violence protective orders.

The court system must keep an Estate Index comprising all estate cases indexed alphabetically under the name of the person to whose estate the case relates, a Will Index comprising a list of all wills on deposit indexed alphabetically under the name of the person to whose will is deposited, a Protective Proceeding Index, an alphabetical index of all protective order proceedings kept under the names of the respondents, and a Registered Trust Index, an alphabetical list of all registered trusts will be kept under the name of the trust.  All of these indices are public records even though the files may be confidential.  Alaska Probate Rule 3(a), (b), (c), (e), (g). In addition, the court system must keep a Mental Commitment Index and a Judicial Bypass Proceeding Index, which are each confidential. Probate R. 3(d), (f), (g).

•  Definitions.  Alaska Admin. R. 37.5(c) sets out definitions for purposes of the rules governing access to court documents:

(1) “Court record” means both case records and administrative records, but does not include records that may be in the court’s possession that do not relate to the conduct of the court’s business.

(2) “Case record” means any document, information, data, or other item created, collected, received, or maintained by the court system in connection with a particular case.

(3) “Administrative record” means any document, information, data, or other item created, collected, received, or maintained by the court system pertaining to the administration of the judicial branch of government and not associated with any particular case.

The rules distinguish between “sealed” records, meaning “access to the record is restricted to the judge and persons authorized by written order of the court,” Admin. R. 37.5(c)(5), and “confidential” records, meaning access to the record is restricted to the parties to the case, counsel of record, individuals with a written order from the court authorizing access, and court personnel for case processing purposes only. Admin. R. 37.5(c)(4).

“In electronic form” means any information in a court record in a form that is readable through an electronic device, Admin. R. 37.5(c)(7), and “remote access” means the ability of a person to inspect and copy information in a court record in electronic form through an electronic means. Admin. R. 37.5(c)(6).

•  Court Records Excluded from Public Access.  As provided in Alaska Admin. R.37.5(e):

(1) Case Records. The following case records and case-related documents are not accessible to the public:

(A) memoranda, notes, or preliminary drafts prepared by or under the direction of any judicial officer of the Alaska Court System that relate to the adjudication, resolution, or disposition of any past, present, or future case, controversy, or legal issue;

(B) legal research and analysis prepared or circulated by judges or law clerks regardless of whether it relates to a particular case and written discussions relating to procedural, administrative, or legal issues that are or may be before the court; and

(C) documents, information, data, or other items sealed or confidential pursuant to statute, court rule, case law, or court order.

(2) Administrative Records. The following administrative records are not accessible to the public:

(A) personal information, performance evaluations, and disciplinary matters relating to any past or present employee of the Alaska Court System or any other person who has applied for employment with the Alaska Court System, and personnel records that are confidential under Alaska Court System Personnel Rules C1.07 and PX1.08;

(B) the work product of any attorney or law clerk employed by or representing the Alaska Court System if the work product is produced in the regular course of business or representation of the Alaska Court System;

(C) individual direct work access telephone numbers and email addresses of judges and law clerks;

(D) documents or information that could compromise the safety of judges, court staff, jurors, or the public, or jeopardize the integrity of the court’s facilities or the court’s information technology or recordkeeping systems;

(E) records or information collected and notes, drafts, and work product generated during the process of developing policy relating to the court’s administration of justice and its operations;

(F) email messages that are created primarily for the informal communication of information and that do not set policy, establish guidelines or procedures, memorialize transactions, or establish receipts; and

(G) records that are confidential, privileged, or otherwise protected by law, rule, or order from disclosure.

•  Prohibiting Access to Public Case Records. Alaska Admin. R. 37.6 provides for limiting access to otherwise public records in case files as follows.

Limiting Access. Notwithstanding any other rule to the contrary, the court may, by order, limit access to public information in an individual case record by sealing or making confidential the case file, individual documents in the case file, log notes, the audio recording of proceedings in the case, the transcript of proceedings, or portions thereof. A request to limit access may be made by any person affected by the release of the information or on the court’s own motion. Admin. R. 37.6(a).

Standard. The court may limit public access as described above if the court finds that the public interest in disclosure is outweighed by a legitimate interest in confidentiality, including but not limited to (1) risk of injury to individuals, (2) individual privacy rights and interests, (3) proprietary business information, (4) the deliberative process, or (5) public safety. Admin. R. 37.6(b).

Least Restrictive Alternative. In limiting public access the court must use the least restrictive means that will achieve the purposes of these public access rules and the reasonable needs as set out as the basis for the request, without unduly burdening the court. Admin. R. 37.6(c).

Procedure. Any request to limit access must be made in writing to the court and served on all parties to the case unless otherwise ordered. A request to limit access, the response to such a request, and the order ruling on such a request must be written in a manner that does not disclose non-public information, are public records, and shall not themselves be sealed or made confidential. Admin. R. 37.6(d).

•  Obtaining Access to Non-Public Court Records. Alaska Admin. R. 37.7 provides for obtaining access to otherwise non-public information in court records as follows:

Allowing Access to Non-Public Records. The court may, by order, allow access to non-public information in a case or administrative record if the court finds that the requester’s interest in disclosure outweighs the potential harm to the person or interests being protected, including but not limited to: (1) risk of injury to individuals, (2) individual privacy rights and interests, (3) proprietary business information, (4) the deliberative process, or (5) public safety. Non-public information includes information designated as confidential or sealed by statute or court rule and public information to which access has been limited by court order in a particular case.  Admin. R. 37.7(a).

Procedure. Any request by any person to allow access must be made in writing to the court and served on all parties to the case unless otherwise ordered. The court shall also require service on other individuals or entities that could be affected by disclosure of the information. A request to allow access, the response to such a request, and the order ruling on such a request must be written in a manner that does not disclose non-public information, are public records, and shall not themselves be sealed or made confidential. Admin. R. 37.7(b).

•  Electronic Case Information. The following case-related information maintained in the court system’s electronic case management systems will not be published on the court system’s website or otherwise made available to the public in electronic form: (1) addresses, phone numbers, and other contact information for parties and witnesses; (2) names, addresses, phone numbers, and other contact information for victims in criminal cases; (3) social security numbers; (4) driver and vehicle license numbers; (5) account numbers of specific assets, liabilities, accounts, credit cards, and PINs (Personal Identification Numbers); (6) names of minor children in domestic relations cases, including paternity actions, domestic violence cases, emancipation cases, and minor settlements under Civil Rule 90.3; (7) juror information; (8) party names protected under Administrative Rule 40(b) and (c); and (9) information that is confidential or sealed in its written form, and (10) attorney and other e-mail addresses used by the court to distribute court orders, notices, judgments, and other documents.

•  Bulk Distribution of Electronic Case Information and Distribution of Compiled Information.  Bulk distribution—defined as the distribution of all or a significant subset of the case information in the court system’s electronic case management systems, as is, and without modification or compilation—of case information is permitted, unless the information is not publicly available in electronic form under Admin. R. 37.8(a), and of imaged case records is not allowed, unless the records are already remotely accessible to the public on the court system’s website.  Admin. R. 37.8(b). The administrative director of the court system may allow bulk distribution of case information that not publicly available and of publicly available imaged case records for scholarly or governmental purposes, pursuant to procedures to protect the security of information and records so released. Admin. R. 37.7(b)(4).

Compiled information, defined as information that is derived from the selection, aggregation, or reformulation of case information in the court system’s electronic case management systems, may be made available unless the compiled information is privileged or reveals information that is confidential, sealed, or not available to the public under Admin. R. 37.8(a). Access to other compiled information may be approved by the administrative director if resources are available to compile the information and if it is an appropriate use of public resources, such as for scholarly, governmental, or any other purpose in the public interest. Admin. R. 37.8(c).

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VII. Jury and grand jury access

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A. Access to voir dire

The federal constitutional right of access to jury selection, among other judicial proceedings, is well-established.  While there are state law provisions, including court rules, applicable to voir dire and juror-related records, any party challenging restrictions on access to such proceedings or records should not overlook that state law may provide greater—but cannot afford less—protection than that afforded by the First Amendment.  The Alaska Administrative Rules address both open court proceedings and juror privacy. Apart from the right to attend in person, the electronic record and log notes from jury selection are public. Alaska Admin. R. 15(j)(4).  However, the rule provides that juror names should only be recorded on the confidential form used to document juror selection and must never be recorded in the log notes. Id. And if jurors (and, presumably, potential jurors) are questioned in private, the electronic record and log notes related to that questioning are confidential. Id.  The Alaska Administrative Rule that governs use of cameras and electronic equipment while covering court proceedings provides that “Jurors may not be photographed, filmed, videotaped, sketched, or recorded, nor may the juror’s image or voice be broadcast, streamed, or posted on the internet, unless the juror is discharged from jury duty and the juror consents.” Alaska Admin. R. 50(a)(3)(B).

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B. Juror identities, questionnaires and other records

To protect juror privacy, virtually no documents relating to jurors are public. Alaska Admin. R. 15(j).  Some, including statewide and master jury lists and qualification questionnaires are for internal court use only, (Admin. R. 15(j)(1)), while others are available to parties and their attorneys but cannot be disclosed to anyone else or use for purposes other than for jury selection in the case for which they were prepared—including the trial questionnaires, trial panel lists, or any compiled list of persons selected to serve on a jury. Admin. R. 15(j)(2), (3). If jurors (and, presumably, potential jurors) are questioned in private, the electronic record and log notes related to that questioning are confidential. Admin. R. 15(j)(4). Otherwise, the electronic record and log notes from jury selection are public. Id. However, the rule provides that juror names must never be recorded in the log notes and should only be recorded on the confidential form used to document juror selection. Id. The court may issue a certificate of attendance to a juror or the juror’s employer. Admin. R. 15(j)(5). This Rule provides that “any other record of juror attendance is confidential,” arguably leaving it ambiguous whether the certificate of attendance is confidential. Juror information maintained in the Alaska court system’s electronic case management systems will not be published on the court system’s website or otherwise made available to the public in electronic form.  Admin. R. 37.8(7).

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C. Grand jury proceedings and records

Grand juries are an arm of the court system, and as such their operations are governed by rules of administration, practice and procedure that the Supreme Court is constitutionally empowered to promulgate. O’Leary v. Superior Court, 816 P.2d 163, 170 (Alaska 1991).  Grand juries generally operate in secret, with limited exceptions to enable prosecutors to perform their duties.  However, returns of indictments to the superior court are public proceedings, unless the court directs that the proceedings be closed to the public and the indictment be kept secret until a defendant is in custody or has given bail. Alaska Crim. R. Pro. 6(l). And no obligation of secrecy may be imposed on any person in connection with grand jury proceedings except in accordance with Criminal Rule 6, which says that a judge, juror, attorney, court employees or related staff can disclose matters only when so directed by the court preliminary to or in connection with a judicial or administrative proceeding.  As a practical matter, that leaves grand jury witnesses as the sole exception.  Even if a witness is required by a grand jury or other government officials to promise to keep his or her testimony secret, that promise is unenforceable.  As the Alaska Supreme Court noted in In re Hanson, 532 P.2d 303, 314 and n.37 (Alaska 1975), the purpose of the rule that no obligation of secrecy may be imposed upon a witness who appears before a grand jury is “to prevent the injustice that could result ‘if a witness (were) not permitted to make a disclosure to counsel or to an associate.’ The salutary objective of the rule would be thwarted if we were to sanction nondisclosure obligations prohibited by Criminal Rule 6(1). As a witness, petitioner was not bound by his promise, which the grand jury had no authority to extract.”  The footnote cites federal authorities, and notes that the same rule applies in the federal courts.

Grand jury testimony and records relied upon by a grand jury typically become public if and only when they are attached to documents filed with the court or otherwise used in subsequent court proceedings.  The indictment itself is a public record and includes the names of witness examined before the grand jury.  Alaska Crim. R. 7; O’Leary v. Superior Court, 816 P.2d 163, 178 (Alaska 1991) (dissenting op. by Compton, J.).

Alaska Crim. R. 6(n)(3) provides that if an indictment is endorsed by a grand jury as “a true bill,” it shall be presented in open court, filed with the clerk, and open to public inspection. If an indictment is endorsed “not a true bill” and a complaint or information was previously filed in a district court, the indictment shall be presented in open court and filed with the clerk where it shall be open to public inspection. If an indictment is endorsed “not a true bill” and no complaint or information was previously filed in district court, the indictment shall be filed with the clerk and held under seal. Crim. R. 6(n)(4) provides that if no indictment is found, the court shall hold the minutes, log notes, and record of the grand jury proceeding under seal. If an indictment is found, the log notes, transcript, and record of the grand jury proceeding will be confidential, as defined in  Admin. R. 37.5(c), except that the grand jury documents may be used by a party or counsel and by their staff, investigators, experts, and others as necessary for the preparation of the case. This paragraph does not preclude a party from attaching relevant portions of these documents to a pleading or motion, so long as victim and witness information is protected as provided in AS 12.61.100–.150.

The foregoing discussion in this section relate to Alaska state court grand juries. In the federal court, Local Criminal Rule 56.1 of the U.S. District Court for Alaska provides that “All Court-supporting personnel, including but not limited to, marshals, deputy marshals, court clerks, court reporters, and employees or subcontractors retained by the Clerk are prohibited, from disclosing to any person, without authorization by the Court: (1) any information relating to pending grand jury proceedings or a criminal case that is not part of the public records of the Court and that maybe prejudicial to the right of the prosecution or the defense to a fair trial; or (2) any information concerning grand jury proceedings or in camera arguments and hearings held in chambers or otherwise outside the presence of the public.

Investigative Grand Juries

Ordinary grand juries in the Alaska State Court System decide whether a sufficient showing has been made to justify issuing an indictment that requires someone to answer to charges in a criminal prosecution.  Alaska court rules also provide for a different kind of grand jury that can investigate and make reports and recommendations concerning the public safety or welfare.  Alaska Crim. R. 6.1.  Investigative grand juries also generally operate in secret, with the presumption that if the grand jury decides to issue a report, it will be open to public inspection. A grand jury report may include allegations of criminal conduct but can be much broader. However, such public disclosure can only occur if and when the process established in Rule 6.1 has played out to allow for judicial reviews relating to possible infringement of constitutional rights, or addressing objections to portions of the report that adversely impact identified individuals, and to ensure that the grand jury process followed the rules. All proceedings under Rule 6.1 are confidential until the presiding judge orders the report released.  In ordering release of a report, the judge may order that a response to the report by a person named or otherwise identified, or other additional materials, be attached to the report as an appendix. The report and any appendices will be filed with the clerk of the court and made available for public inspection.  Alaska Crim. R. 6.1(d).  The provisions of Rule 6.1 that enable the courts through judicial review to limit the grand jury’s right to publish a report that, for example, improperly infringes upon a person’s constitutional rights, or adversely affect their reputations without substantial evidence, have been found not to violate the First Amendment or state public records act, O’Leary v. Superior Court, 816 P.2d at 173, and to be a constitutionally proper exercise of the court’s power and responsibility to afford due process.  Id. at 169–173.

There are two areas of judicial review by the presiding superior court judge that must occur when an investigative grand jury wishes to issue a report.  Assuming it is found to be procedurally correct, First, the presiding judge must determine that proper procedures have been followed, and then determine if publication of the report would improperly infringe upon a constitutional right of any person, including but not limited to improper interference with a person’s right to privacy or right to a fair trial in a pending or planned criminal proceeding. Alaska Crim. R. 6.1(b)(2).  If the judge finds a problem at this stage, the judge must return the report to the grand jury with an explanation of the reasons for doing so, and the grand jury may conduct further proceedings, revise the report, or seek appellate review of the judge’s decision not to release the report.

Second, if the presiding judge decides that standards concerning possible constitutional infringement have been satisfied, the judge must then determine whether any part of the report may reflect adversely on any person named or otherwise identified in the report. (“Person” includes a natural person or an organization but does not include a governmental subdivision or agency.) If it does, the judge must provide for notice of the report to be given to the affected person, who can request a hearing, in camera on the record.  The subject can review the report and record of grand jury proceedings before any such hearing, but can’t disclose any of this with permission from the court, and may submit a written response to the grand jury report, which the person may request that the court issue with the report when the report is made public. If the judge finds the adverse sections of the report were not based on substantial evidence or improperly infringed on the person’s constitutional rights, the judge must return the report to the grand jury with an explanation of why the report has not been released. The court can request that the grand jury consider further evidence as to the named or otherwise identifiable person. The grand jury may conduct further proceedings, revise the report, or seek appellate review of the decision not to release the report.  Alaska Crim. R. 6.1(c).

Any named or otherwise identifiable person, the state, or the grand jury by majority vote may seek review by the Alaska Supreme Court of the presiding judge’s decisions to release or not to release the report in whole or in part.  The grand jury will be permitted access to the record of the in camera hearing to assist it in determining whether to pursue appellate review, but must shall maintain the confidentiality of this record. The court must withhold publication of the report until the time has passed for motions to be filed under Rule 6.1 by anyone challenging release of the report or portions of it, and any such motions and related appeals have been decided.  Alaska Crim. R. 6.1(d). O’Leary v. Superior Court was a 3-2 decision, with two justices dissenting on the grounds that the provisions of Criminal Rule 6.1 permitted prepublication suspension of the grand jury’s report powers and censorship procedures that went beyond what was necessary to provide due process to persons named or otherwise identified in reports.  816 P.2d at 176–179.

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D. Interviewing jurors

As a practical matter, the principal determinant of whether journalists are able to interview jurors, after a trial is over, will be what individual jurors choose to do.  Jurors discharged at the conclusion of a trial will typically be told by a trial judge that they are free to speak if they wish but are under no obligation to do so. (The local rules of the federal district court expressly provide for “Juror’s Rights:” “Except in response to a court order, jurors have a right to decline to communicate with anyone concerning any trial or deliberations in which the juror has been a participant.” D. Alaska Local R. 39.5(c)). Case law and court rules primarily address contacts with jurors by attorneys and their agents, for reasons that relate to the administration of justice, and presumably do not apply to impose any restrictions on interviews of jurors by journalists.  The Alaska Supreme Court has recognized that it's appropriate to talk to released jurors, and that interviewing jurors after their discharge is “a common practice of trial attorneys” and does not constitute “improper conduct” or “jury tampering.”  Patterson v. Cox, 2017 WL 5999883 *2 (Alaska Nov. 29, 2017). But cf. Marsingill v. O’Malley, 58 P.3d 495, 505 n. 27 (Alaska 2002) (trial counsel prohibited from questioning jurors as to any matter influencing their deliberations other than items covered by exceptions). Alaska Evidence Rule 606(b) allows attorneys to question jurors concerning outside influences on their deliberations—for example, fraud, bribery, threats or coercion by third parties, or other acts of third parties in obstruction of justice—but not about things that can’t affect the validity of a verdict or indictment. In the past, attorneys and their agents have sometimes been restricted from contacting jurors after a trial is concluded without permission of the court, but that is generally no longer the case. See, e.g., as to state courts, Elisovsky v. State, 592 P.2d 1221, 1228–29 (Alaska 1979). As to federal courts, applying the analogous Fed. R. Evid. 606(b), compare Dietzmann v. City of Homer, 2013 WL 12303127, *1 (D. Alaska May 9, 2013) (former local rule requiring attorneys to obtain prior approval of the court for “any contact or interview with any juror relating to any case in which the attorney has entered an appearance”) with current D. Alaska Local Civ. R. 39.5 (after a trial jury concludes its deliberations and has been discharged, people who by court rule are prohibited from contacting or communicating with jurors or prospective jurors or their families before or during trial—parties, attorneys, or other interested persons—are free to contact or communicate with jurors unless otherwise ordered by the court). While this is a civil rule, D. Alaska Local Civ. R. 81.1 provides that “these rules may be applied in admiralty, bankruptcy, criminal, or habeas proceedings, to the degree their application is not inconsistent with those rules or with statutes governing those proceedings.”

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VIII. Proceedings involving minors

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A. Delinquency

Juvenile delinquency matters are governed by AS 47.12.010 et seq. Section 47.12.110(a) provides: “The public shall be excluded from the hearing, but the court, in its discretion, may permit individuals to attend a hearing (on a petition to adjudicate a minor as delinquent) if their attendance is compatible with the best interests of the minor. Nothing in this section may be applied in such a way as to deny a minor's rights to confront adverse witnesses, to a public trial, and to a trial by jury.”

Notwithstanding section 47.12.110(a), a court hearing on a petition seeking the adjudication of a minor as a delinquent shall be open to the public, except as prohibited or limited by order of the court, if (1) the department files with the court a motion asking the court to open the hearing to the public, and the petition seeking adjudication of the minor as a delinquent is based on (A) the minor's alleged commission of an offense, and the minor has knowingly failed to comply with all the terms and conditions required of the minor by the department or imposed on the minor in a court order; (B) the minor's alleged commission of (i) a crime against a person that is punishable as a felony; (ii) a crime in which the minor employed a deadly weapon (b), in committing the crime; (iii) arson; (iv) burglary; (v) distribution of child pornography; (vi) promoting prostitution in the first degree; or (vii) misconduct involving a controlled substance under AS 11.71 involving the delivery of a controlled substance or the possession of a controlled substance with intent to deliver; or (C) the minor's alleged commission of a felony and the minor was 16 years of age or older at the time of commission of the offense when the minor has previously been convicted or adjudicated a delinquent minor based on the minor's commission of an offense that is a felony; or (2) the minor agrees to a public hearing on the petition seeking adjudication of the minor as a delinquent, AS 47.12.110(d), or when the district attorney has elected to seek imposition of a dual sentence and a petition has been filed under AS 47.12.065, or when a minor agrees as part of a plea agreement to be subject to dual sentencing. AS 47.12.110(e).

In a 1971 case interpreting Alaska Constitution, art. 1, §11, and the Sixth Amendment to the U.S. Constitution, the Alaska Supreme Court established that children are entitled to a public trial by the Alaska Constitution, and that rules providing for closing of juvenile delinquency proceedings to the public must be interpreted and applied in a manner consistent with the child’s constitutional right to a public trial. R.L.R. v. State, 487 P.2d 27, 35–38 (Alaska 1971). R.L.R. extensively discussed the important purposes served by enforcing a right to public trials, including “teach[ing] the spectators about their government and giv[ing] them confidence in their judicial remedies.” The R.L.R. court noted a diversity of opinion on the policy question but noted that “in both the federal and Alaska's constitutions, the right to public trial is part of a list of rights explicitly stated to be rights of the accused.” But this case was decided before Richmond Newspapers and its progeny established that there is a First Amendment right of the press and public to attend trials, and it did not expressly address this First Amendment question. Citing pre-Richmond federal authority it concluded, “thus the right of ‘public trial’ is not one belonging to the public, but one belonging to the accused,” Id. at 36 (quoting Justice Harlan’s concurring opinion in Estes v. Texas—which itself was later distinguished and superseded in the cases recognizing a First Amendment right of access to courts). The Alaska court in R.L.R. did say that “The reasons for the constitutional guarantees of public trial apply as much to juvenile delinquency proceedings as to adult criminal proceedings.”  Id. at 38. The last sentence in AS 47.12.110(a) cited at the beginning of this section reflects holdings of R.L.R. guaranteed juveniles the right to jury trial, and a public trial, and in Davis v. Alaska, 499 P.2d 1025 (Alaska 1972), rev’d. sub nom Davis v. State, 415 U.S. 308 (1974).

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B. Dependency

What were once referred to as “dependency proceedings” are now generally subsumed in what is known as Child In Need of Aid (“CINA”) proceedings, which are addressed in detail in the following section VIII.C. In an early and rare appellate “dependency” case, one question addressed by the Alaska Supreme Court had to do with a possible conflict between a statute providing for confidentiality of records in juvenile proceedings, and an attempted grant of what might be termed judicial testimonial immunity to forbid use, in a subsequent criminal action against a parent, of testimony that the parent gave at a children's proceeding. The court said that “Reading this statute together with other sections of the laws relating to children's proceedings leads one to believe that AS 47.10.090 . . . was enacted principally for the purpose of protecting the child against the possible adverse effects an unauthorized revelation of his social record would have.” But it added, “this Court has already expressed some concern as to the proper limits on the policies of anonymity and confidentiality reflected in our statutes and rules governing children's proceedings. As Chief Justice Rabinowitz observed in R.L.R. v. State, 487 P.2d 27 (Alaska 1971): ‘These social policy considerations (dictating anonymity in children's proceedings) are based on empirical propositions which may be false and have not been tested. Later, in Davis v. State, 415 U.S. 308 (1974), the Chief Justice, in a dissenting opinion recognizing this limitation, expressed the view that in a criminal proceeding the accused's fundamental right to confront adverse witnesses against him outweighed the state's asserted interest in protecting a juvenile against disclosure of his prior adjudication of delinquency. This dissenting view was subsequently upheld by the Supreme Court of the United States which reversed the contrary holding of the majority of the Alaska Supreme Court.” In re P.N., 533 P.2d 13, 19–20 (Alaska 1975) (footnotes omitted).

With respect to use of cameras or electronic devices to cover court proceedings, Alaska Admin. R. 50(a)(3)(C) provides that a minor may not be photographed, filmed, videotaped, sketched, or recorded, nor may the minor’s image or voice be broadcast, streamed, or posted on the internet, unless the minor is being prosecuted as an adult in a criminal case.

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C. Other proceedings involving minors

Whenever circumstances subject a child to the jurisdiction of the court under the child-in-need-of-aid (“CINA”) statute, AS 47.10.005–.142, a preliminary inquiry and report may result in informal or formal hearings and proceedings. CINA hearings are now presumptively open to the public, except as provided in the CINA statute and unless prohibited by federal or state law, court order or court rule. AS 47.10.070(a). The CINA statute provides that child-in-need-of-aid cases are closed to the public during (1) the initial court hearing after the filing of a petition to commence the child-in-need-of-aid case; (2) a hearing following the initial hearing in which a parent, child or other party to the case is present but has not had an opportunity to obtain legal representation; or (3) a hearing, or a part of a hearing, for which the court issues a written order finding that allowing the hearing, or part of the hearing, to be open to the public would reasonably be expected to (A) stigmatize or be emotionally damaging to a child; (B) inhibit a child's testimony in that hearing; (C) disclose matters otherwise required to be kept confidential by state or federal statute or regulation, court order, or court rule; or (D) interfere with a criminal investigation or proceeding or a criminal defendant's right to a fair trial in a criminal proceeding. AS 47.10.070(c). If a hearing, or part of a hearing, in a child-in-need-of-aid case is not closed under this subsection .070(c), the court shall hear in camera any information offered regarding the location, or readily leading to the location, of a parent, child or other party to the case who is a victim of domestic violence or whose safety or welfare may be endangered by public release of the information. Access to testimony heard in camera under this subsection is limited to the court and authorized court personnel. AS 47.10.070(d). Notwithstanding any other provision of the CINA statute, a person attending a hearing open to the public may not disclose a name, picture or other information that would readily lead to the identification of a child who is the subject of the child-in-need-of-aid case. At the beginning of the hearing, the court must issue an order specifying the restrictions necessary to comply with this subsection. If a person violates the order, the court may impose any appropriate sanction, including contempt and closure of any further hearings to the person. AS 47.10.070(f). Also, the CINA statute provides for adjudication hearings to determine whether the child is or is not a child in need of aid, and, if so, to determine an appropriate disposition for the matter, which might include releasing the child to parents or others, making the child a ward of the state, committing the child to the custody of the Department of Health and Social Services, to a foster home, and hearings concerning a “permanency plan” for the child or termination of parental rights. A hearing conducted under this section is open to the public unless an exception provided in AS 47.10.070 (c) applies to make the hearing closed to the public or unless prohibited by federal or state statute or regulation. AS 47.10.080(u).

With respect to use of cameras or electronic devices to cover court proceedings, Alaska Admin. R. 50(a)(3)(C) provides that a minor may not be photographed, filmed, videotaped, sketched, or recorded, nor may the minor’s image or voice be broadcast, streamed, or posted on the internet, unless the minor is being prosecuted as an adult in a criminal case.

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D. Prohibitions on photographing or identifying juveniles

Notwithstanding any other provision of the Child in Need of Aid (“CINA”) statute, a person attending a hearing open to the public may not disclose a name, picture or other information that would readily lead to the identification of a child who is the subject of the child-in-need-of-aid case. At the beginning of the hearing, the court must issue an order specifying the restrictions necessary to comply with this subsection. If a person violates the order, the court may impose any appropriate sanction, including contempt and closure of any further hearings to the person. AS 47.10.070(f). A more extensive discussion of the application of the CINA statute is found in section VIII.C above.

The court must make and keep records of all CINA cases brought before it, and the court's official records may be inspected only with the court's permission and only by persons having a legitimate interest in them. The name or picture of a child under the jurisdiction of the court may not be made public in connection with the child's status as a child in need of aid unless authorized by order of the court, with minimal irrelevant exceptions. Thirty days after the 18th birthday of a child in a proceeding under this chapter (or after any later date on which the court releases jurisdiction over the child) the court must enter an order sealing all its official records pertaining to that child. A person may not use these sealed records unless authorized by order of the court upon a finding of good cause.  AS 47.10.090.

With respect to use of cameras or electronic devices to cover court proceedings, Alaska Admin. R. 50(a)(3)(C) provides that a minor may not be photographed, filmed, videotaped, sketched, or recorded, nor may the minor’s image or voice be broadcast, streamed, or posted on the internet, unless the minor is being prosecuted as an adult in a criminal case. Admin. Rule 50(b)(2) also authorizes the judicial officer presiding over proceedings, or the appellate clerk in cases in the appellate court, to impose the restrictions that “must be reasonably related and narrowly drawn by least restrictive means” and reasonably related to specified categories, one of which is protection of reasonable privacy interests of a minor. Otherwise however, the rules state that all court proceedings may be covered by the news media, including photographers and electronic media.

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E. Minor testimony in non-juvenile courts

Alaska courts have made clear that protecting the interests of minors who are witnesses is rarely if ever a sufficient reason to overcome the constitutional right to a public trial.  Probably the most significant case in this area is the Court of Appeals decision in Renkel v. State, 807 P.2d 1087, 1989 (Alaska Ct. App. 1991). In both Renkel and the subsequent case of Mitchell v. State, 818 P.2d 688, 689 (Alaska  Ct. App. 1991), the appeals court reversed the trial courts because they had totally closed the courtroom to the public during the testimony of children who were witnesses without making the findings necessary to justify such an order. “Despite the fundamental nature of the right to public trial and the vital function it still serves, it is well accepted that the right is not absolute . . . It may be limited by some other overriding interest.” Renkel v. State, 807 P.2d 1087, 1989 (Alaska Ct. App. 1991), (citing Globe Newspaper Co. v. Superior Ct., 457 U.S. 596, 606 (1982) and Richmond Newspapers Inc. v. Virginia, 448 U.S. 555, 581 n. 18 (1980)). The court in Renkel held, as a general rule, that “the broader the closure order becomes, the more compelling the interest sought to be protected must be. Concomitantly, each closure, whether limited or complete, whether based on substantial justification or overriding compelling interest, must be made sparingly on a case-by-case basis in which the judge carefully balances the right of public trial against the interests to be protected by the closure.” Id. at 1091–92. When partially or totally closing the courtroom, the trial judge must make specific findings so that the record supports a legitimate reason for closure, consider alternatives before ordering closure, and fashion the closure order to be no broader than necessary. Id. at 1092. In a subsequent case, the Court of Appeals rejected a challenge to a conviction based on a courtroom closure, finding that in that case the trial judge had not excluded “all unnecessary people” from the courtroom during the testimony of a child witness, as had been requested, and instead only excluded one family member based on testimony at an evidentiary hearing about the effect of her presence on the child. The appeals court noted that the trial judge preserved the “public nature” of the trial and did make particularized findings, and that his order was limited to one person whom he excluded from the courtroom during the testimony of one witness. Brandon v. State, 839 P.2d 400, 413 (Alaska Ct. App. 1992).  While not rejecting what the judge did in this instance, the Court of Appeals observed that it might have been possible to do something different like restrict this person to the back of the courtroom. It noted that no one at trial argued for this less restrictive alternative, and added: “However, we would encourage trial courts to consider solutions short of excluding people from the courtroom if the court finds that a remedy short of exclusion is appropriate.”  Id. at n.11.  It may worth noting that there is no provision for excluding the press or public contained in the state’s criminal code section (referred to in Brandon) that details how to handle the testimony of children in criminal proceedings, and specifically in cases involving the prosecution of an offense committed against a child under the age of 16, or witnessed by a child under the age of 16.

It is arguable that the precise legal underpinnings of these holdings are not absolutely clear.  To the extent that federal law establishes a First Amendment right of access to judicial proceedings and records, that constitutional law is, of course, binding upon state courts under the Supremacy Clause.  And the Alaska Constitution can be interpreted to provide greater protection for First Amendment rights, but not less.  Accordingly, it should be argued that the results and holdings in these cases are required by the First Amendment, and by the analogous provision in the Alaska Constitution, art. I, sec. 5, despite any ambiguity on this score in the opinions. The main Alaska Supreme Court case dealing with public trials is a 1971 case having to do with the right to a public trial, and a jury trial, in juvenile delinquency cases. R.L.R. v. State, 487 P.2d 27, 35–38 (Alaska 1971). The constitutional public trial right recognized in that case was based on the provisions of the Sixth Amendment and its state constitutional analogue guaranteeing an accused person the right to a public trial. While this was the specific issue presented in that case, the Alaska Supreme Court in R.L.R. extensively discussed the important purposes served by enforcing a right to public trials, including “teach[ing] the spectators about their government and giv[ing] them confidence in their judicial remedies.” The R.L.R.court noted a diversity of opinion on the policy question but noted that “in both the federal and Alaska's constitutions, the right to public trial is part of a list of rights explicitly stated to be rights of the accused.” But this case was decided before Richmond Newspapers and its progeny established that there is a First Amendment right of the press and public to attend trials, and it did not expressly address this First Amendment question. Citing pre-Richmond federal authority it concluded, “thus the right of ‘public trial’ is not one belonging to the public, but one belonging to the accused,” Id. at 36 (quoting Justice Harlan’s concurring opinion in Estes v. Texas—which itself was later distinguished and superseded in the cases recognizing a First Amendment right of access to courts).

The other significant cases concerning public trials, or access to and exclusion from trial, have been decided in the state Court of Appeals, which in Alaska handles only criminal cases. These cases arose after the U.S. Supreme Court’s decision in Richmond Newspapers, and its progeny. See, e.g., Richmond Newspapers Inc. v. Virginia, 448 U.S. 555 (1980); Globe Newspaper Co. v. Superior Ct., 457 U.S. 596 (1982); Press-Enterprise Co. v. Superior Ct. (“Press Enterprise I”), 464 U.S. 501 (1984); Press-Enterprise Co. v. Superior Ct. (“Press Enterprise II”), 478 U.S. 1 (1986). In particular, in Renkel v. State, 807 P.2d 1087, 1989 (Alaska Ct. App. 1991), the appellant claimed he had been improperly denied his right to a public trial as provided by the Sixth Amendment of the United States Constitution and article 1, section 11 (the analogous provision) of the Alaska Constitution.  But the Court of Appeals extensively discussed and clearly grounded its analysis on the case law establishing a First Amendment right of access by the press and public to judicial proceedings and records.  Id.  Citing federal cases including Richmond, Press-Enterprise, and Globe Newspaper Co., the appeals court states, “Although these cases arise from public access claims based on first amendment principles, we can derive much from their teachings on the deeply rooted nature of the public trial right in Anglo-American jurisprudence and the critical function that a public trial serves in the administration of justice today.”  Id. The court extensively discusses the constitutional right of access enunciated in these First Amendment cases.  It notes that “The function that a public trial serves has been eloquently detailed in the watershed case (Richmond Newspapers),” and that “‘one of the most conspicuous features of English justice, that all judicial trials are held in open court, to which the public have free access, . . . appears to have been the rule in England from time immemorial.’”  Id.  And it summarizes this extension discussion of federal constitutional case lay by noting the “fundamental nature of the right to public trial and the vital function it serves.”  Id. at 1091.  Observing that the public trial right is not absolute, the court in Renkel elaborated: “The broader the closure order becomes, the more compelling the interest sought to be protected must be. Concomitantly, each closure, whether based on substantial justification or overriding compelling interest, must be made sparingly on a case-by-case basis in which the judge carefully balances the right of public trial against the interest protected by the closure.” Id. at 1091–92.  In this case, the state conceded the unconstitutionality of the Alaska mandatory closure statute cited in the trial court, specifically on the basis of the U.S. Supreme Court’s First Amendment-based ruling in Globe Newspaper Co.  Id. at 1092. In determining that the closure could not be justified without relying on the unconstitutional statute, the appeals court noted that the general public, including the press, had been excluded during the testimony of three minor children.  “Except that a transcript could be made public upon request, it appears that none of the safeguards of an open trial were maintained.” The court found that this was a total closure that could be upheld only upon a showing of a compelling interest supported by findings in the record, and, citing Globe Newspaper Co., that even a partial closure had to be based on particularized findings.  Id.  The court also rejected arguments that “this fatal infirmity” could be “cured by a remand to the trial judge to allow him to make the necessary findings to conform to the dictates of Globe Newspaper Co.” Id. at 1093 (emphasis added).  The appeals court said it was “not unmindful of the tremendous emotional burden that children face while testifying in these particularly difficult cases.  Nonetheless, the clear holdings of [three US Supreme Court cases including] Globe Newspaper Co. . . . require case specific evidence to provide the special protection sought by the state.  Generalized subjective impressions cannot substitute.”  Id. at 1094 (emphasis added)The Renkel court noted that the evidence presented in that case “could not provide facts sufficient to meet the requirements of Globe Newspaper Co.” Id. (emphasis added).

The appeals court also said it was unnecessary to deal with a claim by the appellant that his constitutional right to confrontation had been denied, among other reasons, “due to our conclusion that the deprivation of Renkel’s right to public trial mandates reversal.”  Id. at n. 7.  The only citation in Renkel to the Alaska Supreme Court’s decision in R.L.R. was for the proposition that the only available remedy was reversal, even in the absence of a specific claim of prejudice flowing from the closure, noting that the Court in R.L.R., which involved closing a juvenile criminal trial, had determined in that “where the right to public trial has been denied, no prejudice need be shown, since such a showing would be almost impossible to make.”  Id. And citing a New York state case, the Renkel court held, “Prejudice need not be proved because there is ‘no way to gauge the great, though intangible, societal loss that flows from the frustration of the goal of the public confidence which occurs when the courthouse doors are closed.”  Id. In summary, it cannot plausibly be argued that the Renkel court’s determination of “the fundamental nature of the right to an open courtroom and its clear violation in this case,” id., is not firmly grounded in the First Amendment-based rulings of Globe Newspapers, Press-Enterprise, and Richmond Newspapers. See also Bright v. State, 875 P.2d 100, 110 (Alaska Ct. App. 2004), discussed in detail the introductory section I.A above.

With respect to use of cameras or electronic devices to cover court proceedings, Alaska Admin. R. 50(a)(3)(C) provides that a minor may not be photographed, filmed, videotaped, sketched, or recorded, nor may the minor’s image or voice be broadcast, streamed, or posted on the internet, unless the minor is being prosecuted as an adult in a criminal case. Admin. Rule 50(b)(2) also authorizes the judicial officer presiding over proceedings, or the appellate clerk in cases in the appellate court, to impose the restrictions that “must be reasonably related and narrowly drawn by least restrictive means” and reasonably related to specified categories, one of which is protection of reasonable privacy interests of a minor. Otherwise however, the rules state that all court proceedings may be covered by the news media, including photographers and electronic media.

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IX. Special proceedings

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A. Tribal Courts in the jurisdiction

There do not appear to be published opinions dealing with access to tribal court proceedings or records. In Scudero v. Moran, 230 F.Supp.3d 980 (D. Alaska 2017), a defeated mayoral candidate for mayor of the Metlakatla Indian Community petitioned in federal court pursuant to the Indian Civil Rights Act (ICRA) seeking relief from a motion filed in tribal court by the tribal community council that sought to impose on candidate the costs incurred by the council arising from the candidate’s unsuccessful challenge to the election results. Council moved to dismiss for lack of subject matter jurisdiction.  The federal judge granted the tribal council’s motion.  It noted that “Federal courts have long recognized that Indian tribes are distinct political entities retaining inherent powers to manage internal tribal matters.” While Congress has abrogated some tribal immunity through the ICRA (so that, e.g., Section 1302 of the ICRA extends some civil rights protections to tribe members, including equal protection and due process rights) the substantive rights set forth in § 1302 are not accompanied by a federal cause of action to remedy violations. Rather, any private right of action under the act lies in tribal court,” with very limited exceptions.  Id. at 983.  And §1302 creates no implied right of action against a tribe or its officers.  Oertwich v. Traditional Village of Togiak, 2019 WL 43459075, at *5 (D. Alaska Sept. 12, 2019). The Constitution of the United States restrains state and federal officials, but not tribal officials acting on behalf of a tribe in Indian country; neither declaratory nor injunctive relief can be sought in federal court to enforce the ICRA.  Native Village of Venetie I.R.A. Council v. State of Alaska, 687 F. Supp. 1280 (D. Alaska 1988), aff’d. in part, rev’d in part on other grounds, 944. F.2d 548 (9th Cir. 1991). The Alaska Supreme Court has held that “[a]lthough Alaska no longer contains Indian country, its Native villages ‘retain those fundamental attributes of sovereignty . . . which have not been divested by Congress or by necessary implication of the tribe's dependent status.’” Healy Lake Village v. Mt. McKinley Bank, 322 P.3d 868, n. 31 (Alaska 2014) (quoting Runyon ex rel. B.R. v. Ass’n of Vill. Council Presidents, 84 P.3d 437, 439 (Alaska 2004)).

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B. Probate

The court system must keep an Estate Index comprising all estate cases indexed alphabetically under the name of the person to whose estate the case relates, a Will Index comprising a list of all wills on deposit indexed alphabetically under the name of the person to whose will is deposited, a Protective Proceeding Index, an alphabetical index of all protective order proceedings kept under the names of the respondents, and a Registered Trust Index, an alphabetical list of all registered trusts will be kept under the name of the trust.  All of these indices are public records even though the files may be confidential.  Alaska Probate Rule 3(a), (b), (c), (e), (g). In addition, the court system must keep a Mental Commitment Index and a Judicial Bypass Proceeding Index, which are each confidential. Probate R. 3(d), (f), (g).

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C. Competency and commitment proceedings

Upon the petition of any adult, which triggers an immediate screening by the judge or a mental health professional, a judge, within 48 hours after the screening, can issue an ex parte order stating that there is probable cause to believe respondent is mentally ill, and as a result of that condition is alleged to be gravely disabled or to present a likelihood of serious harm to self or others. The court must provide findings on which the conclusion is based, appoint an attorney to represent the respondent, and may direct that a peace officer take the respondent into custody and deliver him or her to the nearest appropriate facility for emergency examination or treatment.  AS 47.30.700(a).  This can be the start of what may be a series of consequential proceedings affecting this person’s life. Unless a respondent is released or voluntarily admitted for treatment, within 72 hours from the beginning of the respondent's meeting with evaluation personnel the respondent is entitled to a court hearing to be set for not later than the end of that 72-hour period to determine whether there is cause for detention after the 72 hours have expired for up to an additional 30 days on the grounds that the respondent is mentally ill, and as a result presents a likelihood of serious harm to the respondent or others, or is gravely disabled. AS 47.30.700(b).  The respondent has a number of rights in connection with this commitment hearing, as spelled out in statutes (including, in particular, AS 47.30.735) and case law interpreting these and examining constitutional dimensions of these rights. Among these are the right to have the hearing open or closed to the public as the respondent elects, AS 47.30.735(b)(3), and to present evidence and examine all experts and other witnesses.  The hearing must be conducted in a physical setting least likely to have a harmful effect on the mental or physical health of the respondent, within practical limits. AS 47.30.735(b).

 At the conclusion of the hearing the court may commit the respondent to a treatment facility for not more than 30 days if it finds, by clear and convincing evidence, that the respondent is mentally ill and as a result is likely to cause harm to the respondent or others or is gravely disabled, or may order a less restrictive treatment if there is a viable alternative available. AS 47.30.735(c).  If commitment or other involuntary treatment beyond 30 days is sought, the respondent has the right to a full hearing or jury trial.  The statute provides for further 90-day and 180-day commitment hearings, in each case incorporating the rights afforded to respondent as spelled out in AS 47.30.735(b), including the right to choose whether the hearing is to be open or closed to the public, and additional rights including the right to a jury trial. AS 47.30.750, AS 47.30.770(a).  The same rules apply to commitment of minors, except that a minor must be represented by counsel in proceedings involving a waiver of their rights or findings of informed consent. AS 47.30.775.  There is also a statute dealing extensively with procedures for obtaining court approval to administer psychotropic medications, in crisis and non-crisis situations.  AS 47.30.839.  It provides for appointment of an attorney to represent the person, and for other rights in connection with a hearing on the issue of whether the person has the capacity to give or withhold informed consent and related issues concerning the administration of these drugs, but does not specify whether the person has the right to choose whether to have hearings related to this matter open or closed to the public.

Given the nature and timing of competency and commitment proceedings, some of the issues that arise in connection with them are unusual, if not unique. One such issue that may arise in these cases is the question of whether the decision of a person who is the subject of a commitment hearing who elects to have his or her hearing public may be challenged, or second-guessed, by a guardian, or by the state itself, as being unenforceable on the grounds that this person is not competent do make that decision—the decision to have a public hearing about whether they are competent. An extended discussion of issues relating to these matters can be found in an upcoming book entitled Zyprexa Papers, by attorney James B. Gottstein, scheduled for publication in early 2020.  Mr. Gottstein is a leading advocate nationally for the rights of individuals who are subjected involuntary commitments and to what he and others characterize as “forced drugging,” and has done much of the Alaska litigation establishing the rights of those involved in commitment proceedings due to mental health issues.  Mr. Gottstein notes that these issues seldom arise or get coverage in public because, although individuals may have the right to a public hearing, the stigma associated with mental illness keeps most people from electing for a public hearing for themselves or for their wards or clients.  Even those who are willing to expose their reputations and privacy interests to public scrutiny may encounter efforts by, for example, a guardian or attorney who believes they are acting in the interest of the “respondent” to override this choice and keep the proceedings non-public anyway.

Also, the speed with which commitments hearings come up—usually arising from a precipitating incident that necessitates an initial, fairly immediate hearing to allow a temporary commitment and authorize drugging until a hearing on a longer-term commitment and drugging order can be arranged—means that journalists or members of the public are unlikely to hear about such proceedings until they are over, if ever.  As a practical matter, it is unlikely that a journalist or member of the public would be aware of and seek to attend such a hearing unless there had been coordinating communications and advance notice from an attorney for one of the parties, or other person close to the case.  This leads to another issue:  Where these hearings are held—often, in conference rooms within the psychiatric institutions where the person is being held pending a hearing, or similar settings other than traditional courtrooms.  When this occurs, the culture and routine of such facilities is typically at odds with the notion of public access.  Even when court rules allow a public proceeding, and the respondent elects to have a public hearing, this can be thwarted without vigilance in insisting upon and giving effect to this choice.  An anecdotal but useful example of this is found in the transcript of a November 10, 2008, hearing cited in Mr. Gottstein’s forthcoming book.  In a “forced drugging” case, in which the respondent had elected an open hearing, the judge had denied a motion by the respondent’s attorney to have the hearing conducted in an actual courtroom rather than in a conference room in the Alaska Psychiatric Institute where such hearings were and are routinely held (though they are routinely not public). After it came out that API had refused to let a photographer from the local paper into the hearing, presiding Superior Court Judge William Morse required the head of API to appear for questioning, at the end of which, the judge said:

In the future, the next time a reporter, member of the press, a photographer, a member of the public seeks access to the courtroom, that person is to be allowed access. I find it astonishing that API doesn't get it. I find it—I found it astonishing last time when the Department of Law precluded a reporter from coming into an open courtroom. I am astonished that it's happened again . . . But API and the Department of Law have got to understand that if they are going to be allowed to have a facility within API, we deem it an open and public courtroom, that means that neither the Department of Law nor API can unilaterally deny a member of the public, including a member of the media, into the courtroom facility. I don't have any difficulty with API saying while you travel from the lobby into the courtroom . . . the greater API rules apply. That's perfectly reasonable. But the use of . . . photographs or other media (within a) public courtroom is governed by court system rules, not API rules.

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D. Attorney and judicial discipline

Grievances against attorneys may be filed with the Alaska Bar Association if accepted for investigation will trigger a process that can result in disciplinary action ranging from a private admonition to suspension or disbarment. The Board of Governors of the Alaska Bar Association, when meeting to consider grievance and disability matters, is known as the Disciplinary Board of the Alaska Bar Association (“Board”). Alaska Bar Rule 10.  Among other the Board appoints and supervises Bar Counsel and supervises the investigation of all complaints against attorneys and maintains complete records of all discipline matters. These records are subject to the provisions of Bar Rule 21 concerning public access and confidentiality. Complainants and all persons contacted during the course of an investigation have a duty to maintain the confidentiality of discipline and disability proceedings prior to the initiation of any formal proceedings. Breaching this confidentiality is regarded as contempt of court. A Respondent may waive confidentiality in writing and request disclosure of any information pertaining to the Respondent to any person or to the public. Alaska Bar Rule 22(b). Bar Counsel processes all grievances (filed by others, or initiated by Bar Counsel) and investigates alleged misconduct of attorneys, and will dismiss grievances if it appears from the investigation that there is no probable cause to believe that misconduct has occurred.  Alaska Bar Rule 11.  If Bar Counsel’s investigation indicates that misconduct has occurred, this can result in a private admonition, or can result in filing of a petition for formal hearing initiating public proceedings. After the filing of a petition for formal hearing, hearings held before either a Hearing Committee or the Board regarding discipline or reinstatement will be open to the public, though the deliberations of any adjudicative body will be kept confidential. Bar Rule 21. (This Rule does not allow public access to disability proceedings described in Bar Rule 30). All files maintained by Bar Counsel and staff will be confidential. The Board will cause a notice of the disbarment, suspension, interim suspension, probation, public censure, or public reprimand to be published in (1) a newspaper of general circulation in Anchorage, Fairbanks, and Juneau; (2) an official Alaska Bar Association publication; and (3) a newspaper of general circulation serving the community in which the disciplined attorney maintained his or her practice.  Alaska Bar Rule 28(g). All records, documents, files, proceedings and hearings pertaining to the arbitration of any fee dispute under the Alaska Bar Rules will be confidential and will be closed to the public, unless ordered open by a court upon good cause shown, except that a summary of the facts, without reference to either party by name, may be publicized in all cases once the proceeding has been formally closed. Bar Rule 40(r).

If the Commission on Judicial Conduct recommends reprimand, censure, suspension, removal, or retirement of a judge, it must file its recommendation with the clerk of the appellate courts, along with any minority report submitted under AS 22.30.068, the public portions of the commission record as designated by statute, and a recording of the commission hearing in a format suitable for transcription from which the court must prepare the transcript on an expedited basis.  The judge may petition the Supreme Court to modify or reject the recommendation. The records of all proceedings in the Supreme Court from the time of filing the commission recommendation in the Supreme Court are public.  Alaska App. R. 406.

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E. Immigration proceedings

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F. Other proceedings

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X. Restrictions on participants in litigation

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A. Media standing to challenge third-party gag orders

While no Alaska appellate court decisions expressly media standing, state and federal courts have repeatedly recognized the right, or standing, of the press to intervene and seek relief in these cases. See, e.g., Henry v. Municipality of Anchorage, No. 3:15-cv-187-RRB (D. Alaska); U.S. v. Anderson, No. 3:06-cr-00099-JWS (D. Alaska); U.S. v. Kott & Weyhrauch, No. 3:07-cr-00056-JWS (D. Alaska); U.S. v. Kohring, No. 3:07-cr-00055-JWS (D. Alaska); U.S. v. Wade, No. 3:07-cr-00111-RRB (D. Alaska); In re The Exxon Valdez, No. A89-095 Civ. (D. Alaska); In re Anaruk (Consolidated CAPA Guardianship Cases), No. 3AN-01-1052 P/C (Super. Ct., 3d Jud. Dist.); U.S. v. Kane & Security Aviation, No. 3:06-cr-00022-HRH (D. Alaska); Prevo v. Prevo, No. 3AN-10-8113 Civ. (Super. Ct., 3d Jud. Dist.); Kennedy & Feliciano v. Municipality of Anchorage, No. 3AN-10-8665 Civ (Super. Ct., 3d Jud. Dist.).

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B. Gag orders on the press

This is not addressed.

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C. Gag orders on participants

Federal Local Criminal Rule 56.1, applicable to the U.S. District Court for Alaska provides, “In any criminal proceeding the Court, on motion of either party or on its own motion, may issue a special order governing:(1) extrajudicial statements by parties and witnesses substantially likely to interfere with the fairness of the trial; (2) the seating and conduct in the courtroom of spectators and news media representatives;(3) the management and sequestering of jurors and witnesses; and (4) any other matters that the Court may deem appropriate for inclusion in the order. Local Crim. R. 56.1(b). The Court on motion of either party or its own motion, may enter special orders relating to any matter that the court deems necessary to insure a fair trial by an impartial jury. Local Crim. R. 56.1(b).

In Natekin v. State, 2011 WL 5904467 (Alaska Ct. App. Nov. 23, 2011), a defendant appealed his conviction contending that the superior court violated his right to a public trial by holding two “confidential” hearings during his trial. Some of the language of this decision would be more problematic if the court’s decision had been dependent upon it, or if this were not an unpublished memorandum decision (meaning that it can be cited for its persuasive value in relation to an issue but not for precedent).  The court purported to have a “confidential hearing,” apparently meaning that members of the public were not required to leave but could not talk about what transpired in the proceeding in questions.  The motivating factor was preventing premature disclosure of facts coming out during court proceedings concerning attempted bribery of an anticipated witness.  The court affirmed the defendant’s conviction without reaching some of the important issues raised by the facts of this case, finding that the trial attorney had not preserved the issues by objecting to the judge’s action at trial.  Because of this, Natekin needed to show that the proceedings were marred by obvious error, but could not because, the court said, the record did not plainly show that the two challenged hearings were in fact closed to the public.  The court found the language used by the trial judge to be “confusing,” and it distinguished between situations where the courtroom was or was not closed to the public. It found that the judge never asked anyone to leave the courtroom.  The court said that “no one raised a ‘public trial’ issue in the superior court.  It is perhaps conceivable that Judge Smith took measures to close the courtroom to the public.  But the record in front of us suggests that no such measures were taken—and that Judge Smith confined himself to ordering any people who were present not to reveal what they heard in court.”  It found that Natekin had not shown enough to overcome the presumption that court proceedings had been conducted in accordance with the law.  It should be noted that the only question even raised (without preserving it for appeal) was whether the hearing had been closed or open.  No one raised the propriety of purporting to tell individuals that they could not speak about what they heard or saw in the court proceedings, and the case should not be cited as precedent for or endorsement of this practice.

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D. Interviewing judges

This is not addressed.

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XI. Other issues

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A. Interests often cited in opposing a presumption of access

Access is sometimes denied, delayed or otherwise restricted on the grounds that documents at issue have been docketed or filed as sealed documents.  This is sometimes legitimate, but often the documents ought to be unsealed—whether because they were improperly sealed in the first place, because the justification for the initial sealing no longer warrants continued sealing, a document sealed at the discovery stage is used in connection with motion practice and should be public under Kamakana, Ctr. For Auto Safety, et al., the parties have stipulated to unsealing, or because a court has ordered unsealing for any other reason. Cf. Kamakana v. Honolulu, 447 F.3d 1172, 1182 (9th Cir. 2006) (affirming trial court ruling ordering the release of documents sealed under a protective order that were attached to dispositive motions, in a suit brought by a police detective against the city alleging retaliation for his whistleblower activities); Ctr. for Auto Safety v. Chrysler Grp., LLC, 809 F.3d 1092, 1102 (9th Cir. 2016) (presumptive First Amendment right of access to sealed documents, rejecting binary dispositive/non-dispositive distinction in favor of a broader rule that requires release of sealed documents that are simply “more than tangentially related” to the merits of the case, unless compelling reasons require secrecy).

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B. Cameras and other technology in the courtroom

All of Alaska is a single federal judicial district.  Though there are signs of receptivity to discussions about greater access, the local rules still presumptively prohibit use of photography and recording devices in federal courthouses in the District of Alaska. See D. Alaska Local Civil Rule 83.3: “Photographs, Video or Audio Recorders, Broadcasts Unless otherwise ordered by the court, the taking of photographs and operation of video or audio recorders in the courtroom or its environs and/or radio or television broadcasting from the courtroom or its environs during the progress of, or in connection with judicial proceedings, whether or not court is actually in session, is prohibited.” Administrative rules of the Alaska Court System don’t control what is or is not permissible in federal court proceedings that occur in Alaska; conversely, the federal government doesn’t decide how the Alaska Court System governs electronic coverage of state court proceedings. Cameras are generally permitted in state court proceedings, whereas they are generally prohibited in federal proceedings.  Federal rules barring camera coverage are written in a way that prohibits use portions of cameras in specific portions of federal buildings used by the federal courts whether the court is in session or not.

With respect to the Alaska Court System, the use of cameras and recording devices in state courts is governed by Alaska Administrative Rule 50. There has occasionally been some confusion about how Admin. R. 50 affects access to court proceedings by reporters who are not using cameras or audio recording devices. Admin. R. 50 was revised in 2019. It was previously entitled “Media Coverage of Court Proceedings,”  and based on this title, occasionally journalists and even a judge or two read this to mean that any representatives of the media who want to cover court proceedings must get permission from the court to do so.  This is incorrect.  Journalists have the same right as any member of the public to attend court proceedings (and in fact are at times allowed to remain, as surrogates for the public, in a proceeding that is otherwise closed to some or all others). This presumptive constitutional right of access to judicial proceedings—with rare exceptions—does not depend on getting approval from a judge or court administrator, or consent of the parties, in order to attend and report on what goes on in our public courtrooms.  It is only when journalists seek to use cameras or recording devices, or sketch artists—something the rest of the public cannot do, either, without getting approval—that they must comply with Rule 50.  And if use of cameras or recording devices is not permitted in some particular case or situation, that does not mean that the journalist is not free to attend and report on the proceedings.

To get rid of and avoid this kind of confusion, the author has encouraged courts to stop using “Media Coverage” or similar phrases to describe their policies for use of cameras and other recording devices in courtrooms. In comments on the proposed revisions to Admin. R. 50 the author observed that this title “has caused unnecessary confusion, and improperly suggests that permission is necessary before the media can enter and remain in a courtroom to cover judicial proceedings, when in fact that fundamental constitutional right that does not require advance governmental approval.”  The revised, current Administrative Rule is now called: “Use of Cameras and Electronic Devices in Court Facilities.”  (Similar comments filed by the author with respect to proposed revisions to the local rules of the federal district court for the District of Alaska led to that court dropping the word “prohibited” from the title of the local rule governing recording, even though the presumptive prohibition against photo and audio recording remains, as noted above.)

Court proceedings in Alaska are presumed to be open to the public unless otherwise ordered by the court or provided by statute or court rule. Admin. R. 50(a)(1). However, no cameras or electronic devices may be used in the courtroom to film, photograph, record, transmit, stream, or broadcast sounds or images during court proceedings without prior approval of the judicial officer presiding over the proceedings or the clerk of the appellate courts. For the purpose of this rule, “cameras” and “electronic devices” are broadly defined. “Cameras” include but are not limited to film cameras, digital cameras, and video cameras. “Electronic devices” include but are not limited to cellular phones, laptop computers, and electronic tablets. The term “sketched” is broadly defined and includes drawings, portraits, and depictions whether done on paper, electronic device, or other medium. Any provision of Rule 50 addressing photographing includes sketching. Admin. R. 50(a)(2).

Permission to use cameras or electronic devices may be requested by completing the court system’s Application for Photographing, Filming, Recording, or Streaming a Court Proceeding. The application must be submitted sufficiently in advance so it can be reviewed and decided before the beginning of the proceedings and not cause delay. Admin. R. 50(b)(1). The Court System’s Administrative Bulletin 45, which implements Admin. R. 50 and is discussed in more detail below, states that “In general, the application should be submitted two business days prior to the proceeding.”  While that may be a desirable goal (not specified in Rule 50), often the media will only learn of proceedings they wish to cover on short notice, such as arraignments or bail hearings for someone accused of a crime, or a hearing on a temporary injunction. It can be useful to learn the practices of any given judge or courthouse that you may be dealing with—for example, will they accept a request that is faxed or emailed to them?  And pay attention to what you ask for, so that you don’t neglect to make a request broad enough to cover all that you want.

In both trial and appellate proceedings, any restrictions on courtroom coverage with cameras and electronic devices must be stated on the record or in writing, narrowly drawn employing the least restrictive means, and reasonably related to ensuring (A) decorum and preventing distractions, (B) the fair administration of justice in the pending case and future proceedings; and (C) protection of the reasonable privacy interests of a minor or any other person.  Admin. R. 50(b)(2). The use of cameras and electronic devices outside the courtroom in a court facility is also subject at all times to the authority of the presiding judge, area court administrator, clerk of the appellate courts, judicial officer, or clerk of court to ensure decorum and prevent distractions, and to ensure the fair administration of justice, protection of the reasonable privacy interests of a minor or any other person, and the security of the court and all court users. Admin. R. 50(c). Use of cameras or electronic devices for coverage in the courtrooms may be terminated “if warranted under the circumstances.” Id. This vague and general language was added in 2019 and has not been tested or interpreted.

No minor (except on being prosecuted as an adult in a criminal case), no juror, and no victim of a sexual offense or a party in a sexual assault, stalking or domestic violence protective order proceeding may be photographed, filmed, videotaped, sketched, or recorded, nor may the image or voice of any of these individuals be broadcast, streamed, or posted on the internet, except that these restrictions don’t apply to a victim of a sexual offense or party to a protective order proceeding when that victim or party consents and the court approves, or to a discharged juror who consents to such coverage. Admin. R. 50(a)(3). Bench conferences, party or counsel notes, and confidential communications between counsel and client, between clients, or between counsel may not be filmed, videotaped, recorded, broadcast, streamed, or posted on the internet. Admin. R. 50(b)(3, 4).

Use of cameras or electronic devices at supreme court or court of appeals oral arguments are subject to the provisions governing their use in trial courts, plus any restrictions specifically imposed by the court concerned.  These impose other restrictions, but the rules for appellate proceedings specifically require that in domestic violence, child custody and visitation, paternity, or other similar family proceedings, including child in need of aid cases, in proceedings involving involuntary commitments or the involuntary administration of medications, in criminal cases involving a sexual offense, or in other cases where confidentiality is necessary, any cameras and electronic devices must be positioned to avoid capturing images of the parties in civil cases, victims in criminal cases, or minors unless the minor is being prosecuted as an adult in a criminal case. Admin. R. 50(f)(2)(B).

Any person or organization whose request to cover court proceedings with cameras or electronic devices is denied or restricted can seek review of the unfavorable action.  The process for doing this depends on whether it involves trial court or appellate court proceedings and facilities.   In the trial courts, the person or organization can ask in writing that the court reconsider its ruling. This request can be made in the form of a letter to the trial judge, and can made through an attorney, but also, despite the statute requiring corporations to appear in court only through attorneys, it can be made by an officer or employee of an organization.  The reconsideration request must state the reasons why use of a camera or an electronic device should be allowed and must be served on all parties to the case. If the reconsideration request is denied, the person or organization may petition for review under the Appellate Rules, but in this situation an organization seeking review can proceed only through an attorney. Admin. R. 50(e).  If the request in the first place is for reconsideration of a restriction or appeal imposed in connection with Supreme Court or Court of Appeals proceedings, the process is basically the same, except that the letter or other filing requesting reconsideration and stating the reasons why use of a camera or electronic device should be allowed is made to the clerk of the appellate courts. It can be made through an attorney, or directly by the person, or by an officer or employee of an organization, seeking such use, despite the statute requiring corporations to appear in court only through attorneys. Admin. R. 50(f)(4).

The Alaska Court System has published an administrative bulletin for purposes of implementing the procedures and standards of Administrative Rule 50 and deals more specifically with “nuts and bolts” questions such as the number and placement of cameras, pooling, sound and light criteria, and other logistical details. (See Administrative Bulletin 45, which is set out in full in the Administrative Rules following Admin. R. 50; a separate Administrative Bulletin governs film industry requests.) Bulletin 45 was amended for the first time in decades in conjunction with adoption of revisions to Administrative Rule 50 in 2019.  While it remains substantially the same, the Bulletin was modernized to eliminate references to things like use of 16mm film and flashcubes and add references to streaming and internet postings. It increased the number of television cameras, still cameras, and audio systems for broadcast purposes that are presumptively allowed in a courtroom or adjacent areas in a court proceeding or during a recess (§1–3), but makes pooling arrangements necessitated by limits on allowable equipment and personnel “the sole responsibility of the applicants without resort to the court or court personnel to mediate any dispute.” (§5).  With respect to issues relating to decorum and distraction, the Bulletin provides that cameras and electronic devices that produce distracting sound or light, and artificial lighting devices, may not be used in a courtroom (§6), television, audio equipment, and tripod-mounted still cameras must not be placed in or removed from the courtroom except prior to commencement or after adjournment of proceedings each day, or during a recess (§8), and an equipment operator's movements in the courtroom must be unobtrusive—for example, a photographer should not assume body positions which would be inappropriate for other spectators, such as lying on the floor to get a better camera angle. Id. Persons using cameras and electronic devices are expected to present a neat appearance in keeping with the dignity of the proceedings and be sufficiently familiar with court proceedings to conduct themselves so as not to interfere with the dignity of the proceedings, or to distract counsel or the court. (§11).  Persons using cameras or electronic devices must certify in their application to do this that they have read Administrative Rule 50 and Administrative Bulletin 45.

One potentially problematic provision in the new Administrative Bulletin 45 is the requirement that “A person or organization who wants to use a camera or electronic device at a trial court proceeding must submit an application to the court through the area court administrator on a form provided by the area court administrator's office. (§13(a)). The author believes this provision is unnecessary, confusing, and inconsistent with longstanding practice prior approval is routinely sought from the judicial officer presiding over the proceeding in question. As a practical matter, an application for camera coverage made through the area court administrator’s office would simply be forwarded to the judge assigned to the matter, or held for confirmation of that judge’s position, thus contributing to needless delay. While it might be inappropriate to advise journalists to ignore this provision, and this guide is not intended as legal advice in any event, it is likely that no one would get in trouble and everyone would be better served if journalists and others continue to submit applications to use cameras and electronic devices directly to the judge presiding in the case. The potential problem has been obviated to a large extent by the fact that the Presiding Judge of the largest (Third) judicial district in the state has issued an administrative order (3AO-19-03, discussed in more detail below in this section) that expressly allows an application for use of cameras or electronic devices to be made directly to the judge presiding over the proceeding to be covered, or to the area court administrator or presiding judge.

A party may file a motion objecting to a person’s use of a camera or electronic device if it is distracting, effects the fair administration of justice, infringes on their reasonable privacy interests, or creates a security risk. The judicial officer, upon a party’s or the judicial officer’s own motion, may order coverage to cease until a distraction has been eliminated, limit the coverage, or terminate coverage, if warranted under the circumstances of the case. (§14).  Presumably any such order would be subject to the standards and procedures set out in Admin. R. 50(b) requiring, for example, a statement of restrictions that is written or on the record, reasonably related to the specified allowable reasons, narrowly drawn and employing the lease restrictive means of accomplishing the court’s legitimate goals.  The judge presiding over a proceeding may alter the provisions of Administrative Bulletin for that particular proceeding upon a showing of good cause.  (§15).

Admin. R. 50 applies at all times throughout state court facilities and is not limited to courtrooms or to times when court is in session, though it does provide that the presiding judge for each judicial district may establish by order procedures or restrictions consistent with the those in the text of Rule 50 regarding the use of cameras and electronic devices in court facilities within the district. Admin. R. 50(d). Current Presiding Judges’ orders, if any, on the use of cameras or electronic devices in court facilities are available on the court’s website under court rules at: http://www.courts.alaska.gov/jord/index.htm#trial. Copies may also be obtained from the office of the court rules attorney at 820 West 4th Avenue, Anchorage, AK, 99501, (907) 264-8231. Administrative Order 3AO-19-03, issued by Third Judicial District Presiding Judge William Morse on April 18, 2019, courts serving most of the state’s population, including Anchorage.  It includes a few variations on the provisions set out in Administrative Rule 50 and Administrative Bulletin 45.  Among these are that media coverage can take place without application for prior approval (only) in the main lobby of a courthouse, except that cameras and electronic recording devices can’t be used in security screening areas of a courthouse facility, and the equipment, personnel or activities in a security screening area can’t be recorded. Aside from lobby coverage, use of cameras and electronic devices in all other locations in Third Judicial District courthouses requires an application to the Presiding Judge, Area Court Administrator, or the judge presiding over the proceeding to be covered. Prior approval for media coverage in the area occupied by the appellate courts on the fourth and fifth floors of the Boney Courthouse in Anchorage must be obtained through the Clerk of the Appellate Courts.  There are no restrictions on media coverage outside and adjacent to courthouses in the Third Judicial District, except that placement of equipment can’t obstruct public egress or entrance to a court facility.  As of December 2019, it does not appear that Administrator Orders regarding use of cameras and electronic devices have been issued by the presiding judges of the other (First, Second, or Fourth) Alaska Judicial Districts.  There is a “Local Administrative Order” (3KN-AO-19-1, issued September 30, 2109) regarding Use of Cameras and Electronic Devices at the Kenai Courthouse, issued by a Kenai Superior Court Judge (not the presiding judge of the judicial district) that says it “supplements the local procedures for non-media use of electronic devices.” It appears to primarily, if not exclusively, address wedding photography.  It states that devices may be used in the main lobby areas without prior approval for weddings, but “for other purposes prior approval must be obtained. It also says “No court personnel may be photographed or recorded without their consent, unless prior approval has been obtained from the Presiding Judge, Deputy Presiding Judge, or Area Court Administrator.”  These two provisions are potentially problematic.   Admin. Rule 50 appears to apply to all, not just to “media,” and the Presiding Judge’s Administrative Order 3AO-19-03 expressly allows media coverage in courthouse lobbies without prior approval.  Rule 50 also contains no prohibition against or restrictions on photographing or recording court personnel.  And, it only provides for establishment of local procedures or restrictions regarding use of cameras and court facilities by order of the presiding judge for the judicial district. Should a problem occur relating to these provisions, those points could be made, but hopefully no issues should arise because of this local order that are of concern to the media, because the “Local Order” expressly states it applies to “non-media use.”

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C. Tips for covering courts in the jurisdiction

An excellent source of information about the Alaska Court System is its website, found at http://www.courts.alaska.gov/.  Docket sheets and related case information (but not individual pleadings) for state court cases can be searched online on the Alaska CourtView website: https://courts.alaska.gov/main/search-cases.htm, also accessible from the Court System’s home page.  Similar information for federal cases, but including access to actual pleadings and orders filed in each case, can be obtained using the federal government’s PACER system. The Alaska Court System’s home page also provides links to Court calendars, a Media link to a variety of Media and Community Resources including relevant court rules, administrative bulletins, applications for camera coverage of court proceedings, names and phone numbers of media liaisons, and much more.  A court system directory is provided at https://courts.alaska.gov/courtdir/index.htm.

Superior courts are the trial courts of general jurisdiction, with original jurisdiction in all criminal and civil matters. Their jurisdiction extends over the whole state. AS 22.10.020(a)(b). Rules of Court specify venue requirements, but changes of venue may be obtained for specified reasons. AS 22.10.030–.040. The state district courts have extensive jurisdiction, limited primarily by the amount in controversy, and now have jurisdiction over actions for libel, slander, and malicious prosecution, but not over actions of an equitable nature unless expressly authorized. AS 22.15.050.  The small claims court is part of the district court, and the court system is developing several “therapeutic courts” such as the Wellness Court and Veteran’s Court. The Alaska Court of Appeals has jurisdiction over criminal matters only. AS 22.07.020. There is a right of appeal to the Supreme Court in all civil cases commenced in the superior court, AS 22.05.010. A petition for interlocutory review, however, will be granted only in four specific circumstances. Alaska R. App. Pro. 402(b). The Supreme Court has recognized that compelling reasons exist for accepting review in cases posing the danger of immediate encroachment on First Amendment rights. Hanby v. State, 479 P.2d 486 (Alaska 1970). Extraordinary legal remedies to protect First Amendment rights are frequently employed and are constitutionally mandated. Id. at 490.

Instead of following the American Rule with respect to attorney fees, Alaska is the only state with a general “loser pays” rule, providing for a presumptive award of partial attorney’s fees to the prevailing party in civil litigation, absent independent statutory authorization for fee awards. See Alaska R. Civ. Pro. 82; Alaska R. App. Pro. 508. A longstanding judicially created exception to Alaska’s prevailing party attorney fee rule that allowed public interest litigants to recover full fees if successful, and pay no fees if not, was abrogated by the Alaska Legislature in 2003. The Alaska Supreme Court upheld this law, holding that the public interest litigant exception was a common law gloss created by the courts interpreting Rule 82, not part of the rule itself. However, it also said that trial courts remain free to reduce awards that would otherwise be so onerous to the losing party as to deter similarly situated litigants from accessing courts, including those who would have previously been identified as public interest litigants, using factors specified in the rule that continue to apply to all cases without discriminating between those brought for self-interested reasons and those intended to effectuate public policies. State v. Native Village of Nunapitchuk, 156 P.3d 389 (Alaska 2007). Between the loser pays prevailing party fee rule and elimination of the public interest exception, Alaska has become the only state that would presumptively impose fees and costs on public interest litigants who unsuccessfully pursue non-frivolous claims. The public interest litigant exception survives in the current statute in a provision limited to fees incurred in dealing with constitutional issues, but in most access litigation, for example, the right of the press and public access to meetings and records is statutory, not constitutional.  However, as a practical matter, the question of recovering or being assessed fees in cases involving access to judicial proceedings and records has rarely arisen, probably because these issues usually come up through intervention in an existing case and the matter of fees is typically not raised by any party, and because the issues often arise in criminal cases where fee awards are virtually never made.

A number of decisions that deal with issues in this outline are unpublished, but are cited because they may prove useful, anecdotally or for what persuasive value they may have. See Alaska Supreme Court Order No. 1654 (April 15, 2008) (amending Alaska R. App. Pro. 214(d) and providing that “[i]f a party believes . . . that an unpublished decision has persuasive value in relation to an issue in the case, and that there is no published opinion that would serve as well, the party may cite the unpublished opinion”); cf. McCoy v. State, 80 P.3d 757, 759 (Alaska Ct.App. 2002) (noting the appropriate use of unpublished opinions as persuasive precedent in addition to "such purposes as collateral estoppel, res judicator, or law of the case.").

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