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District of Columbia

Open Courts Compendium

Author

Stephen J. Fuzesi, and A. Joshua Podoll, Williams & Connolly LLP, 725 Twelfth Street, N.W., Washington, D.C. 20005

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I. Introduction: Access rights in the jurisdiction

A. The roots of access rights

The U.S. Supreme Court consistently has recognized that the public and press have a presumptive First Amendment right of access to judicial proceedings in criminal cases, finding that “a presumption of openness inheres in the very nature of a criminal trial under our system of justice.” Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 573 (1980) (plurality opinion). It has not directly addressed whether the public and the press also have a constitutional right of access to civil proceedings, though the California Supreme Court noted that “every lower court opinion of which we are aware that has addressed the issue of First Amendment access to civil trials and proceedings has reached the conclusion that the constitutional right of access applies to civil as well as to criminal trials.” NBC Subsidiary (KNBC-TV), Inc. v. Superior Court, 980 P.2d 337, 358 (Cal. 1999). Some circuits also have recognized a constitutional right of access to court records, with one noting that “the public and press have a first amendment right of access to pretrial documents in general.” Associated Press v. District Court, 705 F.2d 1143, 1145 (9th Cir. 1983).

Although the D.C. Circuit has not addressed the constitutional right of access to civil proceedings, it has recognized a “strong presumption in favor of public access to judicial proceedings” in civil cases and criminal cases alike.  Metlife, Inc. v. Fin. Stability Oversight Council, 865 F.3d 661, 665 (D.C. Cir. 2017); SEC v. American International Group, 712 F.3d 1, 3 (D.C. Cir. 2013).

When considering whether a constitutional presumption of access applies to particular proceedings or records, courts apply the “logic and experience test,” also called the “Press-Enterprise test.” The test considers “whether the place and process have historically been open to the press and general public,” and “whether public access plays a significant positive role in the functioning of the particular process in question.” Press-Enterprise Co. v. Superior Court (Press-Enterprise II), 478 U.S. 1, 8 (1986) (citations omitted).

The D.C. Circuit has applied that test in the context of court proceedings and court documents.  See Washington Post v. Robinson, 935 F.2d 282, 287-88 (D.C. Cir. 2008) (using the logic and experience test to conclude that there is a qualified First Amendment right of access to plea agreements).

In addition to the constitutional right—and even where it does not apply—“the courts of this country recognize a general common-law right to inspect and copy public records and documents, including judicial records and documents.”  Nixon v. Warner Communications, Inc., 435 U.S. 589, 597 (1978) (footnote omitted); see also Washington Legal Foundation v. United States Sentencing Comm’n, 89 F.3d 897, 902 (D.C. Cir. 1996) (“[T]he common law bestows upon the public a right of access to public records and documents.”). Indeed, the Third Circuit found that in both civil and criminal cases “the existence of a common law right of access to … inspect judicial records is beyond dispute.” Publicker Indus., Inc. v. Cohen, 733 F.2d 1059, 1066 (3rd Cir. 1984). Courts declining to extend a constitutional presumption of access to particular proceedings often likewise conclude that the proceedings are open “by force of tradition.” In re Krynicki, 983 F.2d 74, 75 (7th Cir. 1992).

In addition, public access to court proceedings and records often will be governed by statute or court rule. For example, Federal Rule of Civil Procedure 77(b) provides that “[e]very trial on the merits must be conducted in open court and, so far as convenient, in a regular courtroom,” and Federal Rule of Civil Procedure 43(a) provides that “the witnesses’ testimony must be taken in open court unless a federal statute, the Federal Rules of Evidence, these rules, or other rules adopted by the Supreme Court provide otherwise.”

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B. Overcoming a presumption of openness

When a constitutional presumption of access applies, a court may close proceedings only after making specific, on-the-record findings: (1) that closure is necessary to further a compelling governmental interest; (2) the closure order is narrowly tailored to serve that interest; and (3) that no less restrictive means are available to adequately protect that interest. Press-Enterprise Co. v. Superior Court (Press-Enterprise II), 478 U.S. 1, 13-14 (1986); see also Press-Enterprise Co. v. Superior Court (Press-Enterprise I), 464 U.S. 501, 510-11 (1984); Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 607 (1982) (access restrictions must be “necessitated by a compelling governmental interest, and … narrowly tailored to serve that interest”). The party seeking access restrictions bears the burden of showing the procedure is “strictly and inescapably necessary.” Associated Press v. District Court, 705 F.2d 1143, 1145 (9th Cir. 1983); see also Washington Post v. Robinson, 935 F.2d 282 (D.C. Cir. 1991); Mokhiber v. Davis, 537 A.2d 1100, 1115 (D.C. 1988).

The common-law right of access generally is less absolute than the constitutional right—at times bowing, for example, to the less-than-compelling interest in ensuring that court records “are not ‘used to gratify private spite or promote public scandal’ through the publication of ‘the painful and sometimes disgusting details of a divorce case.’” Nixon v. Warner Communications, Inc., 435 U.S. 589, 598 (1978) (internal citation omitted). The Supreme Court found it “difficult to distill … a comprehensive definition of what is referred to as the common-law right of access or to identify all the factors to be weighed in determining whether access is appropriate,” instead concluding that “the decision as to access is one best left to the sound discretion of the trial court, a discretion to be exercised in light of the relevant facts and circumstances of the particular case.” Id. at 598-99.

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C. Procedural prerequisites to closure

Where a presumption of access applies, courts must make specific, on-the-record findings about the need for closure. Press-Enterprise Co. v. Superior Court (Press-Enterprise II), 478 U.S. 1, 13-14 (1986).  The D.C. Circuit adheres to the procedural safeguards established in other appellate courts that have followed Press-EnterpriseSee, e.g., Oregonian Pub. Co. v. United States Dist. Court, 920 F.2d 1462, 1466 (9th Cir. 1990); United States v. Haller, 837 F.2d 84, 87 (2d Cir. 1988); In re Washington Post Co., 807 F.2d 383 (4th Cir. 1986).  For example, within the D.C. Circuit, a court may grant a motion to seal a plea agreement only if:

“(1) The government . . .  file[s] a written motion to seal the plea agreement and notice of that motion must be entered in the public docket;

2) The trial court . . . promptly allow[s] interested persons an opportunity to be heard before ruling on the motion and entering the sealing order;

3) The trial court . . . articulate[s] specific findings on the record demonstrating that the decision to seal the plea agreement is narrowly tailored and essential to preserve a compelling government interest; however, the trial court may file its findings under seal if it is necessary to protect the secrecy of the plea agreement;

4) The trial court . . . also place[s] the fact that it has sealed the plea agreement on the public docket; and

5) The government . . . [has an opportunity to] seek leave of the court to file under seal its written motion to seal along with the plea agreement itself, and any supporting documents, pending the disposition of the motion by the court; however, notice of the written motion to seal must be entered on the public docket, and interested individuals must be afforded an opportunity to be heard before the trial court ultimately rules on the motion and makes specific findings on the record.”

Washington Post v. Robinson, 935 F.2d 282, 289 (D.C. Cir. 1991).  Failing to observe the procedural prerequisites to closure will generally result in an appellate court vacating the district court ruling.  Id. at 292.

Lower courts have specified the procedure that should be followed. In a criminal case, for example:

First, the district court must give the public adequate notice that the closure of a hearing or the sealing of documents may be ordered. In particular, closure motions must be docketed reasonably in advance of their disposition so as to give the public and press an opportunity to intervene and present their objections to the court. Moreover, although individual notice is generally not necessary, when the district court has been made aware of the desire of specific members of the public to be present, reasonable steps to afford them an opportunity to submit their views should be taken before closure. Second, the district court must provide interested persons an opportunity to object to the request before the court ma[kes] its decision. Third, if the district court decides to close a hearing or seal documents, it must state its reasons on the record, supported by specific findings. Its findings must be specific enough to enable the reviewing court to determine whether closure was proper. In addition, the court must state its reasons for rejecting alternatives to closure.

In re Washington Post Co., 807 F.2d 383, 390-91 (4th Cir. 1986) (citations and quotations omitted). Failing to observe the procedural prerequisites to closure constitutes error even if the closure might otherwise be proper, and appellate courts generally will “remand the issue to the district court for a second consideration using correct procedures and correct substantive standards.” Id. at 393.

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

A. Media standing to challenge closure

The Supreme Court has noted that the public and the press have a right to challenge closure of court records and proceedings, holding that “representatives of the press and general public ‘must be given an opportunity to be heard on the question of their exclusion.’” Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 609 n. 25 (quoting Gannett Co. v. DePasquale, 443 U.S. 368, 401 (1979) (Powell, J., concurring)).  Federal courts in D.C. have found that “[m]embers of the news media may properly intervene for the purpose of seeking to unseal judicial records.” Dhiab v. Obama, 2014 U.S. Dist. LEXIS 140684 at *8 (D.D.C. Oct. 3, 2014).  The D.C. Court of Appeals has reached the same conclusion.  Mokhiber v. Davis, 537 A.2d 1100 (D.C. 1988).  Other courts agree, with the Ninth Circuit finding that “those excluded from the proceeding must be afforded a reasonable opportunity to state their objections.” U.S. v. Brooklier, 685 F.2d 1162, 1167‑68 (9th Cir. 1982). Likewise, the Second Circuit in In re Application of Dow Jones & Co., 842 F.2d 603, 608 (2nd Cir. 1988) found that “news agencies have standing as recipients of speech” to challenge gag orders. Many court rules specify the procedures by which a member of the press can object to closures or move to unseal documents.

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B. Procedure for requesting access in criminal cases

Third parties may request access to federal court materials in criminal cases pursuant to Local Criminal Rule 57.6.  See United States v. George, 1992 U.S. Dist. LEXIS 16882 at *1 (D.D.C. Jul. 23, 1992) (concerning the Washington Post’s request for access to voir dire questionnaires in a criminal case).  The relevant rule provides:

“Any news organization or other interested person, other than a party or a subpoenaed witness, who seeks relief relating to any aspect of the proceedings in a criminal case shall file an application for such relief in the Miscellaneous Docket of the Court. The application shall include a statement of the applicant’s interest in the matter as to which relief is sought, a statement of facts and a specific prayer for relief. The application shall be served on the parties to the criminal case and shall be referred by the Clerk to the trial judge assigned to the criminal case for determination.”  Id.

We are not aware of a similar rule in the D.C. Courts.  The Court of Appeals, however, has endorsed intervention in a criminal case as an appropriate means of obtaining access to case materials.  In re Jury Questionnaires, 37 A.3d 879, 884 (D.C. 2012).

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C. Procedure for requesting access in civil matters

D.C. local and federal courts have ruled that intervention is the proper procedure for third parties to seek access to court materials in civil cases. See In re Fort Totten Metrorail Cases, 960 F. Supp. 2d 2, 6 (D.D.C. 2013) (granting motion to intervene and for access to settlement agreements with minors filed in action against WMATA); EEOC v. Nat’l Children’s Ctr., Inc., 146 F.3d 1042, 1046 (D.C. Cir. 1998) (“[W]e hold that third parties may be allowed to permissively intervene under Rule 24(b) for the limited purpose of seeking access to materials that have been shielded from public view either by seal or by a protective order.”); Mokhiber v. Davis, 537 A.2d 1100, 1104 (D.C. 1988) (per curiam) (“The filing of a motion to intervene is simply recognized as an appropriate means of raising assertions of public rights of access to information regarding matters in litigation.”); see also, e.g., Aristotle Int’l, Inc. v. NGP Software, Inc., 714 F. Supp. 2d 1, 18 (D.D.C. 2010) (noting that motion to intervene and for access is proper procedure to challenge sealing); New York v. Microsoft Corp., 206 F.R.D. 19, 21 (D.D.C. 2002) (declining to hold that the press is entitled to intervention as of right, but finding that permissive intervention under Federal Rule of Civil Procedure 24(b) is “the appropriate avenue for advancing ‘third-party claims of access to information generated through judicial proceedings’”).

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D. Obtaining review of initial court decisions

An order denying access to court records is considered a collateral order, subject to immediate appellate review.  In re Reporters Committee for Freedom of the Press, 773 F.2d 1325, 1330 (D.C. Cir. 1985) (holding that order denying access to documents used in connection with summary judgment and trial was immediately appealable); cf. United States v. Hubbard, 650 F.2d 293, 314 (D.C. Cir. 1980) (holding that a district court order to unseal documents was a collateral order capable of being appealed immediately).  The D.C. Court of Appeals has reached the same conclusion, observing that “courts have consistently permitted ‘gag orders’ and orders restricting access to judicial proceedings to be appealed under the collateral order doctrine by non-parties—typically members of the press or other media—and by trial participants as well.” In re Ti. B., 762 A.2d 20, 25-26 (D.C. 2000).  Notably, however, the D.C. Court of Appeals also has issued published decisions on access issues in actions brought by mandamus petitions; those cases, however, did not resolve whether mandamus was a proper vehicle for review of access decisions. See United States v. Burka, 289 A.2d 376, 380 n.11 (D.C. 1972) (expressly holding open the question); Nellson v. Bayly, 856 A.2d 566 (D.C. 2004) (per curiam).

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III. Access to criminal proceedings

A. In general

D.C. courts recognize a presumptive right to access criminal proceedings.  The D.C. Court of Appeals has held that “the general nature of our form of government requires the highest degree of public exposure to trial court proceedings.”  United States v. Burka, 289 A.2d 376 (D.C. 1972); see also D.C. L. Cr. R. 17.2(a) (“Unless otherwise provided by law or by this Rule, all criminal proceedings . . . shall be held in open court and shall be available for attendance and observation by the public.”).

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B. Pretrial proceedings

In United States v. Edwards, 430 A.2d 1321 (D.C. 1981), the D.C. Court of Appeals held that the First Amendment provides a right of public access to pretrial proceedings, reasoning that “[p]ublic access to judicial proceedings serves an amalgam of functions, functions which are as applicable to critical pretrial hearings as to trials.” Id. at 1344. The court found that “[a]bsent findings of fact based upon a showing clearly demonstrating that pretrial publicity will jeopardize the parties’ right to a fair trial and that no alternative means are available to accord a fair trial without threatening the substantial public interest in open proceedings, it is error to order closure.” Id. at 1346. But see McClinton v. United States, 817 A.2d 844, 860 (D.C. 2003) (holding that there was no violation of a criminal defendant’s Sixth Amendment right to a public trial where “the trial judge temporarily closed the courtroom during a pretrial hearing on a motion to dismiss the indictment to avoid intimidation of one witness,” who the trial court found was “obviously intimidated by the people in the courtroom”).

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C. Criminal trials

In McIntosh v. United States, 933A.2d 370 (D.C. 2007), the D.C. Court of Appeals reversed a defendant’s criminal conviction because the closure of the courtroom during the testimony of his alleged sex assault victim—“a twelve-year-old girl who suffered from severe social disorders and borderline mental retardation and, in addition, exhibited physical discomfort while speaking in a courtroom setting”—violated the defendant’s Sixth Amendment right to a public trial. Id. at 372. The Court of Appeals held that the trial court “failed to give proper consideration to reasonable alternatives” and failed to “adequately consider[] other important interests before ordering the courtroom closed.” Id. at 379, 380. But see Tinsley v. United States, 868 A.2d 867, 871-72, 875-80 (D.C. 2005) (upholding trial court’s decision to exclude a criminal defendant’s family and friends from the courtroom during the testimony of a witness who had been stabbed and threatened with regard to her testimony and had become visibly shaken and reticent to testify as a result of their presence).

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D. Post-trial proceedings

The federal District Court in D.C. has recognized that “[t]he right of access is not limited to the criminal trial itself, but extends to many pre- and post-trial documents and proceedings.”  In re Special Proceedings, 842 F. Supp. 2d 232, 239 (D.D.C. 2012) (holding that court-commissioned report on prosecutorial misconduct during the trial of Ted Stevens would be released to the public).  The D.C. Court of Appeals has similarly suggested that the general right of access to criminal proceedings applies to post-trial proceedings as well.  Cf. Mokhiber v. Davis, 537 A.2d 1100, 1106 (D.C. 1988) (citing Newman v. Graddick, 696 F.2d 796 (11th Cir. 1983) while recognizing the right to access courts, and noting the case held that the “constitutional right of access applies to pretrial, trial, and post-trial proceedings”) (emphasis added)).

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E. Appellate proceedings

IV. Access to criminal court records

A. In general

The D.C. Courts’ Case Management Branch handles requests for access to criminal court records.

Access to criminal court records is more constrained than access to criminal court proceedings.  See Mokhiber v. Davis, 537 A.2d 1100, 1107 (D.C. 1988) (“We deal here with a question of access to court records, not to court proceedings...[The Supreme Court] has never held that the right is one of access to documents in the court record relating to those proceedings.”).

In a 1981 decision, the D.C. Circuit Court of Appeals weighed six factors that have now been commonly cited in D.C. decisions addressing sealed records: (1) the need for public access to the documents at issue; (2) the extent to which the public had access to the documents prior to the sealing order; (3) the fact that a party has objected to disclosure and the identity of that party; (4) the strength of the property and privacy interests asserted; (5) the possibility of prejudice to those opposing disclosure; and (6) the purposes for which the documents were introduced. See United States v. Hubbard, 650 F.2d 293, 317-22 (D.C. Cir. 1981).

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B. Arrest records

Arrest records can generally be obtained pursuant to the District of Columbia Freedom of Information Act of 1974, D.C. Code Ann. § 2-531 et seq. (“FOIA”).  See Newspapers, Inc. v. Metropolitan Police Dep’t, 546 A.2d 990, 1001 (D.C. 1988) (reversing a trial court decision “to withhold the disclosure of arrest records otherwise available under the FOIA”); see also DC-SCR Crim. 118.

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C. Dockets

Docket information for D.C. courts can be found on the District of Columbia Courts official website: http://www.dccourts.gov/internet/welcome.jsf.

Docket information for the United States District Court for the District of Columbia can be found on the court’s official website: http://www.dcd.uscourts.gov/.

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The District Court in D.C. has held that there is a qualified First Amendment right of access to search warrant materials following the close of the investigation. See Matter of the Application of WP Co. LLC, No. CV 16-MC-351 (BAH), 2016 WL 1604976, at *2 (D.D.C. Apr. 1, 2016) (“under the First Amendment, the Post has a qualified right to access court records associated with searches conducted in furtherance of the now-closed Campaign Finance Investigation.”); In re Application of the N.Y. Times Co. For Access to Certain Sealed Court Records, 585 F. Supp. 2d 83 (D.D.C. 2008) (granting newspapers’ motion for access to search warrants, warrant applications, supporting affidavits and other warrant materials related to the federal anthrax investigation under both the First Amendment and the common law). Other related cases include an earlier decision of the D.C. Circuit Court of Appeals, staying the unsealing of documents seized from a third-party non-defendant that were introduced in a pretrial criminal suppression hearing. See United States v. Hubbard, 650 F.2d 293 (D.C. Cir. 1981); see also Ctr. for Nat’l Sec. Studies v. U.S. Dept. of Justice, 331 F.3d 918, 933-37 (D.C. Cir. 2003) (holding that the “narrow First Amendment right of access to information . . . does not extend to non-judicial documents that are not part of a criminal trial,” including “information compiled during the government’s investigation of terrorist acts,” and also holding that any common law right of access to such documents was preempted by FOIA); Bacha v. Obama, 653 F. Supp. 2d 32, 33-35 (D.D.C. 2009) (in habeas corpus proceeding brought by Guantanamo Bay detainee, court granted government’s motion to designate as “protected” the specific dates of interviews disclosed in intelligence reports because government’s argument that “someone could use that date to reconstruct the speaker’s identity” was a compelling reason to protect the information, but denied motion with respect to more general information).

After a series of administrative mistakes related to the docketing of search-warrant cases, the Chief Judge for the U.S. District Court for the District of Columbia “directed that a new category be added to the Court’s website where all search warrants and arrest warrants will be publicly available after execution, unless a separate sealing order is entered to redact all or portions when the government makes the showing required by United States v. Hubbard . . . and Washington Post v. Robinson.”  In re Email Account Maintained on Computer Servers Operated by Google, Inc. Headquartered at 1600 Amphitheatre Parkway, Mountain View, CA, 946 F. Supp. 2d 67, 69 (D.D.C. 2013).  Unsealed case materials are available at: http://www.dcd.uscourts.gov/dcd/CourtOpinions.

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E. Discovery materials

In United States v. Poindexter, 732 F. Supp. 165 (D.D.C. 1990), a D.C. federal district court ordered that President Reagan’s videotaped deposition in connection with the Iran-Contra investigation be held in camera because of the top secret and sensitive information that would pervade it, but agreed to release it to the public once the classified information had been edited out. See also In re Application of Am. Broad. Cos., 537 F. Supp. 1168 (D.D.C. 1982) (holding that there was no common law right to copy and broadcast the videotaped deposition of Jodie Foster taken in connection with the John Hinckley case and, even if there was, that the interest in access would be outweighed by the interest in the actress’s privacy and safety, but also holding that tape-recorded conversations between Foster and Hinckley could be copied or broadcast after they were played to the jury); see also United States v. Trabelsi, No. CR 06-89 (RWR), 2015 WL 5175882, at *8 (D.D.C. Sept. 3, 2015) (holding that inter-governmental correspondence between United States and Belgium would be sealed, if produced).

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F. Pretrial motions and records

Access to pretrial motions and records is governed by the D.C. Circuit Court of Appeals decision in United States v. Hubbard, 650 F.2d 293 (D.C. Cir. 1980) (discussing pre-trial records).  The D.C. Circuit established six factors in determining public and press access to sealed documents: (1) the need for public access to the documents at issue; (2) the extent to which the public had access to the documents prior to the sealing order; (3) the fact that a party has objected to disclosure and the identity of that party; (4) the strength of the property and privacy interests asserted; (5) the possibility of prejudice to those opposing disclosure; and (6) the purposes for which the documents were introduced.  Id. at 317-22; see also United States v. Armstrong, No. MISC. 11-565 DAR, 2012 WL 7148452, at *1 (D.D.C. Dec. 6, 2012) (denying motion to seal pretrial materials, citing Hubbard factors).   Pretrial materials generated in the course of plea negotiations, a U.S. District Judge recently held, do not implicate the First Amendment or common-law rights of access if they are not filed with the court, admitted in evidence, or otherwise played some role in the formal adjudicatory process.  United States v. Ring, 47 F. Supp. 3d 38, 41-42 (D.D.C. 2014).

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G. Trial records

The fact that materials were “admitted into evidence and played to the jury,” according to the D.C. Circuit, “weighs heavily in favor” of unsealing.  In re National Broadcasting Co., Inc., 653 F.2d 609, 614 (D.C. Cir. 1981).  That is because “the general rule is that a trial is a public event and what transpires in the court room is public property.”  Id. (internal quotation marks and alterations omitted).  Where materials were not used at trial, however, that reasoning does not apply.  See Tavoulareas v. Washington Post Co., 111 F.R.D. 653, 660 (D.D.C. 1986) (explaining, in a civil case, that materials not used at trial are subject to a different analysis than materials that were).  The factors the D.C. Circuit laid out in United States v. Hubbard, 650 F.2d 293 (D.C. Cir. 1980) are likely to govern the question of access to trial records in a criminal trial.

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H. Post-trial records

The District Court in D.C. has recognized that “[t]he right of access is not limited to the criminal trial itself, but extends to many pre- and post-trial documents and proceedings.”  In re Special Proceedings, 842 F. Supp. 2d 232, 239 (D.D.C. 2012).  In In re Special Proceedings, for example, the court held that a post-trial, court-commissioned report on prosecutorial misconduct during the trial of Ted Stevens would be released to the public.    Similarly, in In re: The Reporters Comm. or Freedom of the Press, 2015 WL 5297600, at *3 (D.D.C. Sept. 10, 2015), the District Court in D.C. concluded that certain sentencing-phase materials would remain under seal because releasing them would put law-enforcement officers, defendants, and their families in danger.  In re: The Reporters Comm. or Freedom of the Press, 2015 WL 5297600, at *3 (D.D.C. Sept. 10, 2015).  Although neither decision discussed the factors from United States v. Hubbard, 650 F.2d 293 (D.C. Cir. 1980), both relied on similar considerations.

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I. Appellate records

We are not aware of any published decisions concerning access to appellate records.  That issue, however, is likely governed by the D.C. Circuit Court of Appeals decision in United States v. Hubbard, 650 F.2d 293 (D.C. Cir. 1980) (discussing pre-trial records).  The D.C. Circuit established six factors in determining public and press access to sealed documents: (1) the need for public access to the documents at issue; (2) the extent to which the public had access to the documents prior to the sealing order; (3) the fact that a party has objected to disclosure and the identity of that party; (4) the strength of the property and privacy interests asserted; (5) the possibility of prejudice to those opposing disclosure; and (6) the purposes for which the documents were introduced.  Id. at 317-22.

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J. Other criminal court records issues

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

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V. Access to civil proceedings

A. In general

The D.C. Circuit has recognized a “strong presumption in favor of public access to judicial proceedings” in civil cases, as in criminal cases.  Metlife, Inc. v. Fin. Stability Oversight Council, 865 F.3d 661, 665 (D.C. Cir. 2017); SEC v. American International Group, 712 F.3d 1, 3 (D.C. Cir. 2013); see also Richmond Newspapers, 448 U.S. 555, 580 n. 17 (1980) (“[H]istorically both civil and criminal trials have been presumptively open.”); see also id. at 599 (Stewart, J., concurring) (“[T]he First and Fourteenth Amendments clearly give the press and the public a right of access to trials themselves, civil as well as criminal.”); In re Guantanamo Bay Detainee Litig., 630 F. Supp. 2d 1, 10 (D.D.C. 2009).

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B. Pre-trial proceedings

D.C. courts have stated that “although the First Amendment normally guarantees to the public and the press the right to attend criminal trials, the right of access to pretrial proceedings is only a qualified one.”  United States v. Poindexter, 732 F. Supp. 165, 167 (D.D.C. 1990).  In determining whether access should be granted, courts look to two factors: historical tradition and the public purpose to be served by public access.  Id.

As a general matter, D.C. courts have looked unfavorably upon attempts to restrict press access to pre-trial proceedings. See Avirgan v. Hull, 188 F.R.D. 257 (D.D.C. 1987).  In Avirgan, a D.C. federal district court held that a third-party deponent’s “bald assertion” that he would suffer “annoyance, embarrassment, [and] oppression” if the press was permitted to attend his deposition did not satisfy the showing of good cause required to grant a protective order preventing the media’s attendance, but the court ordered further briefing on the question of good cause. Id. at 262.

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C. Trials

D.C. courts have endorsed the unanimous view of other appellate courts that a tradition of public access to civil trials has deep roots in American legal history, from English common law to the modern day.  E.g., In re Guantanamo Bay Detainee Litig., 630 F. Supp. 2d 1 (D.D.C. 2009); see also In re Reporters Committee for Freedom of Press, 773 F.2d 1325 (D.C. Cir. 1985) (noting that the Supreme Court has intimated a public right to access civil trials) (citing Richmond Newspapers v. Virginia, 448 U.S. 555, 580, n.17 (1980)); Mokhiber v. Davis, 537 A2d 1110, 1123 n.4 (D.C. 1988) (“No court has expressly concluded that the first amendment does not guarantee some right of access to civil trials.”).

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D. Post-trial proceedings

E. Appellate proceedings

VI. Access to civil records

A. In general

There is a common-law right of access to court records from civil cases under D.C. law.  Mokhiber v. Davis, 537 A.2d 1100 (D.C. 1988); cf. Morgan v. Foretich, 521 A.2d 248 (D.C. 1987) (holding that presumption of access does not apply to civil contempt hearing in family-division case).  That right, however, “is not absolute” and “does not necessarily apply to all documents that one might arguably term ‘court records’ relating to a lawsuit.”  Id. at 1108-09.

In a 1981 decision, the D.C. Circuit Court of Appeals weighed six factors (in the context of a criminal proceeding) that have now been commonly cited in D.C. decisions addressing sealed records more generally: (1) the need for public access to the documents at issue; (2) the extent to which the public had access to the documents prior to the sealing order; (3) the fact that a party has objected to disclosure and the identity of that party; (4) the strength of the property and privacy interests asserted; (5) the possibility of prejudice to those opposing disclosure; and (6) the purposes for which the documents were introduced. United States v. Hubbard, 650 F.2d 293, 317-22 (D.C. Cir. 1981); see also, e.g., In re Reporters Committee for Freedom of Press, 773 F.2d 1325, 1339 (D.C. Cir. 1985) (citing Hubbard in discussing public access to civil records).   Hubbard, the D.C. Circuit recently wrote, “has consistently served as [the Court’s] lodestar” in deciding questions of access.  Metlife, Inc. v. Financial Stability Oversight Council, 865 F.3d 661 (D.C. Cir. 2017).

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B. Dockets

In deciding whether to unseal sealed case dockets, D.C. courts apply the familiar Hubbard factors:  namely, (1) the need for public access to the documents at issue; (2) the extent to which the public had access to the documents prior to the sealing order; (3) the fact that a party has objected to disclosure and the identity of that party; (4) the strength of the property and privacy interests asserted; (5) the possibility of prejudice to those opposing disclosure; and (6) the purposes for which the documents were introduced. United States v. Hubbard, 650 F.2d 293, 317-22 (D.C. Cir. 1981); see also Guttenberg v. Emery, 26 F. Supp. 3d 88, 92-97 (D.D.C. 2014) (declining to seal docket and other case materials, citing Hubbard factors); Friedman v. Sebelius, 672 F. Supp. 2d 54 (D.D.C. 2009) (unsealing case docket after granting defendants’ motion to dismiss (citing Hubbard factors)).

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C. Discovery materials

In Mokhiber v. Davis, 537 A.2d 1100 (D.C. 1988), the D.C. Court of Appeals held that the right of access, under either the First Amendment or the common law, attaches to discovery materials—such as depositions, interrogatories, and documents obtained in discovery—only when a party submits those materials as evidence at trial or files them in connection with a motion to the court. See also Aguirre v. Shapiro, 263 F.R.D. 26 (D.D.C. 2009) (“[P]laintiff has no First Amendment right to discuss or share protected information he receives as a function of pretrial discovery . . . .”); cf. Hajjar-Nejad v. George Washington Univ., No. CIV.A. 10-626 CKK, 2013 WL 178729, at *6 (D.D.C. Jan. 16, 2013) (unsealing plaintiff’s deposition transcript so that future motions could be filed without need for seal).

By contrast, Mokhiber explains, “the presumptive public right of access does apply to motions filed with the court concerning discovery, to evidence submitted with such motions—including materials produced during discovery—and to the court’s dispositions, if any.” 537 A.2d at 1111. Similarly, the court held that the presumptive public right of access applies to other pre-trial motions, as well, even if they do not go to the merits of the underlying lawsuit. Id. at 1113. But see In re the Reporters Comm. for Freedom of the Press, 773 F.2d 1325 (D.C. Cir. 1985) (finding no First Amendment right of access, prior to entry of judgment in a civil lawsuit, to court records consisting of documents and depositions used in connection with summary judgment and trial proceedings, and finding that trial court did not exceed its discretion in delaying fifty days after judgment to determine whether the documents should be unsealed); Willingham v. Ashcroft, 355 F. Supp. 2d 390 (D.D.C. 2005) (sealing pendente lite pleadings and exhibits that disclosed allegations of misconduct against non-parties and ordering parties to re-file redacted versions of the same documents).

In Johnson v. Greater Southeast Community Hospital Corp., 951 F.2d 1268 (D.C. Cir. 1991), the D.C. Circuit Court of Appeals ordered a district court to reconsider its decision to seal the entire record in a civil case (except plaintiff’s complaint), finding that a hospital’s interest in keeping the peer-review processes out of the public eye to be insufficient and instructing the district court to weigh the Hubbard principles on remand. Id. at 1277-78; see also U.S. v. USS Marine Services, 905 F. Supp. 2d 121 (D.D.C. 2012) (applying Hubbard factors, unsealing case concerning compliance with administrative agency’s subpoena for contractor’s internal audit).

In In re Guantanamo Bay Detainee Litig., 630 F. Supp. 2d 1 (D.D.C. 2009), a D.C. federal district court held that the public has a limited First Amendment and common law right to access the unclassified factual returns filed in habeas corpus litigation brought by Guantanamo Bay detainees, and thus denied the government’s motion to seal completely all such returns. And in Mokhiber v. Davis, 537 A.2d 1100 (D.C. 1988) (per curiam), the D.C. Court of Appeals held that the public has a presumptive right of access to pre-trial motions and evidence submitted with those motions. Id. at 1113.  See also In re Rail Freight Fuel Surcharge Antitrust Litig., 2014 WL 5803136, at *1 (D.D.C. Nov. 7, 2014) (unsealing transcripts of pretrial hearings (citing Hubbard factors)); Guttenberg v. Emery, 26 F. Supp. 3d 88, 92-97 (D.D.C. 2014) (declining to seal docket and other case materials, citing Hubbard factors); United States ex rel. Grover v. Related Companies, LP, 4 F. Supp. 3d 21, 30 (D.D.C. 2013) (unsealing dismissed False Claims Act complaint (citing Hubbard factors)); cf. Hamiduva v. Obama, No. CV 08-1221(CKK), 2015 WL 5176085, at *4 (D.D.C. Sept. 3, 2015) (weighing Hubbard factors, keeping Guantanamo Bay prisoner’s factual returns under seal).

D.C. courts have addressed the sealing of motions. In United States v. General Motors Corp., 99 F.R.D. 610 (D.D.C. 1983), a D.C. federal district court granted the government’s motion to unseal its motion for summary judgment and supporting exhibits in an action against the automaker under the National Traffic and Motor Vehicle Safety Act, rejecting GM’s argument that sealing was warranted until the filing of GM’s opposition. See also Educ. Assistance Found. for Descendants of Hungarian Immigrants in Performing Arts, Inc. v. United States, No. CV 11-1573 (RBW), 2015 WL 4055415, at *1 (D.D.C. July 1, 2015) (declining to seal summary judgment motion); Zapp v. Zhenli Ye Gon, 746 F. Supp. 2d 145, 151 (D.D.C. 2010) (citing Hubbard factors; denying motion to seal motions and other materials filed with Court); TIG Ins. Co. v. Firemen’s Ins. Co. of Washington, D.C., 2010 WL 2505878, at *3 (D.D.C. 2010) (denying without prejudice plaintiff’s motion for leave to file summary judgment motion under seal because the motion “simply assert[ed] that the documents at issue contain confidential information,” which “is not sufficient to properly evaluate the instant motion under the six-part balancing test articulated by this Circuit”).

D.C. courts have also addressed the sealing of judicial decisions. See, e.g., Berliner Corcoran & Rowe LLP v. Orian, 662 F. Supp. 2d 130 (D.D.C. 2009) (ordering that the court’s Memorandum Opinion in the case be released on the public docket in unsealed, unredacted form (citing Hubbard factors)); Fudali v. Pivotal Corp., 623 F. Supp. 2d 25 (D.D.C. 2009) (unsealing ruling on sufficiency of evidence, except for pricing information contained in contract at issue (citing Hubbard factors)); Doe I v. Exxon Mobil Corp., 570 F. Supp. 2d 49 (D.D.C. 2008) (unsealing Memorandum and Opinion denying motion to dismiss and rejecting proposed redactions of portions containing information designated as confidential (citing Hubbard factors)); McConnell v. FEC, 251 F. Supp. 2d 919, 922 (D.D.C. 2003) (unsealing opinions related to campaign finance litigation and “the vast amount of information contained therein supporting the Court’s conclusions,” but not unsealing “any part of the record originally filed under seal that is not contained in the opinions” (citing Hubbard factors)); see also Friedman v. Sebelius, 672 F. Supp. 2d 54 (D.D.C. 2009) (unsealing case docket after granting defendants’ motion to dismiss (citing Hubbard factors)).

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D. Pre-trial motions and records

D.C. courts have recognized a right to access trial records in the common law, but have found that the right is not absolute.  See Mokhiber v. Davis, 537 A.2d 1100, 1106-09 (D.C. 1988).  A court’s decision to allow access to trial records would likely be based on the factors laid out in United States v. Hubbard, 650 F.2d 293 (D.C. Cir. 1981):  (1) the need for public access to the documents at issue; (2) the extent to which the public had access to the documents prior to the sealing order; (3) the fact that a party has objected to disclosure and the identity of that party; (4) the strength of the property and privacy interests asserted; (5) the possibility of prejudice to those opposing disclosure; and (6) the purposes for which the documents were introduced.  Id. at 317-22.

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E. Trial records

In EEOC v. National Children’s Center, 98 F.3d 1406 (D.C. Cir. 1996), the D.C. Circuit Court of Appeals held that a district court abused its discretion in sealing a consent decree entered in connection with the settlement of an EEOC action for sexual harassment against a D.C. charitable entity that received public funding. Id. at 1410-11 (citing Hubbard factors). The court noted that the “public should be able to learn how the money it has contributed to a charitable organization is being spent” and that “because the Center provides services to children and the alleged misconduct by the Center’s staff in this case was of a sexual nature, the public interest in disclosure is compelling.” Id. at 1410.  Likewise, in In re Fort Totten Metrorail Cases, 960 F. Supp. 2d 2, 6 (D.D.C. 2013), the U.S. District Court for the District of Columbia unsealed a number of settlement-related documents, including settlement agreements with minors and documents relevant to settlement negotiations among other parties.

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F. Settlement records

D.C. courts have not explicitly addressed this issue, although the D.C. Circuit has held that “[t]o the extent a First Amendment right to post-judgment civil records exists, it does not exceed…the traditional common law right.”  In re Reporters Committee for Freedom of Press, 773 F.2d 1325, 1339 (D.C. Cir. 1985).

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G. Post-trial records

H. Appellate records

At least one federal district court in the District of Columbia has also addressed public access to agency administrative records and—while not reaching the issue of whether there is a First Amendment right of access—has held that “access to administrative records is favored by public policy and that this interest is substantive and entitled to [Administrative Procedure Act] protection.” Nat’l Ass’n of Waterfront Emp’rs v. Solis, 665 F. Supp. 2d 10, 17 n.11 (D.D.C. 2009).

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I. Other civil court records issues

VII. Jury and grand jury access

A. Access to voir dire

At both local and federal courts in D.C., the names of potential jurors are not read aloud during voir dire.  See Journalists’ Handbook to the Courts in the District of Columbia, Council for Court Excellence 30, https://www.dccourts.gov/sites/default/files/pdf-forms/JournalistsHandbook.pdf.

In Cable News Network, Inc. v. United States, 824 F.2d 1046 (D.C. Cir. 1987), the D.C. Circuit Court of Appeals reversed an order entered by the federal district court denying the press’s request for voir dire of prospective jurors to be conducted in open court. The appeals court held that the district court had failed to abide by the standards set out by the Supreme Court in Press-Enterprise I.

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B. Juror identities, questionnaires and other records

Juror identities are withheld throughout the course of the trial, and are usually made part of the case record after the verdict.  See Journalists’ Handbook to the Courts in the District of Columbia, Council for Court Excellence 30, https://www.dccourts.gov/sites/default/files/pdf-forms/JournalistsHandbook.pdf.

In United States v. Espy, 31 F. Supp. 2d 1 (D.D.C. 1998), a federal district court ordered that the names of jurors be sealed for seven days following the announcement of their verdict in a “high-profile” criminal case. The court noted that “[m]any of the purposes served by open access to criminal proceedings are also served by recognizing the interest and putative right of the press to have access to the names of jurors following a verdict,” but found that the seven-day “limitation on the interests of the press is narrowly tailored in time and scope and will not ultimately thwart the purposes served by providing open access to criminal proceedings.” Id. at 2.

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C. Grand jury proceedings and records

Grand jury proceedings are secret, and transcripts are rarely made available to the press or public.  It is up to the court to determine if and when to release grand jury materials.  Fed. R. Crim. Pro. 6(e)(6); Journalists’ Handbook to the Courts in the District of Columbia, Council for Court Excellence 33, https://www.dccourts.gov/sites/default/files/pdf-forms/JournalistsHandbook.pdf.

The D.C. Circuit Court of Appeals reviewed the legal principles governing access to grand jury materials in In re Grand Jury Subpoena, Judith Miller, 493 F.3d 152 (D.C. Cir. 2007) (per curiam). In that case, the D.C. Circuit Court of Appeals held that portions of a concurring judicial opinion previously filed in the case, as well as portions of two ex parte affidavits filed in the same case, discussing grand jury matters that had since been publicly revealed at trial or by the witnesses themselves, should be released in unredacted form. The court explained that “‘[g]rand jury secrecy is not unyielding’ where there is no secrecy left to protect,” id. at 154 (quoting In re Grand Jury Subpoena, Judith Miller, 438 F.3d 1138, 1140 (D.C. Cir. 2006)), but cautioned that “[i]nsofar as materials concern still-secret grand jury matters, they must remain sealed.” Id.; see also In re Motions of Dow Jones & Co., Inc., 142 F.3d 496 (D.C. Cir. 1998) (explaining that “there is no First Amendment right of access to grand jury proceedings,” and finding no basis for right of access to proceedings ancillary to a grand jury investigation, but suggesting that if the judge “can allow some public access without risking disclosure of grand jury matters . . . Rule 6(e)(5) contemplates that this shall be done” and remanding questions of whether to release transcripts from the ancillary proceeding and to unseal the docket). Id. at 499, 502.

In the spring of 2014, a U.S. Magistrate Judge issued an order requiring the government to file publicly an application for an order commanding Twitter not to inform anyone of the existence of grand-jury subpoenas.  In re Application of the United States of Am. for Nondisclosure Order Pursuant to 18 U.S.C. § 2705(b) for Grand Jury Subpoena #GJ2014032122836, No. MC 14-480 (JMF), 2014 WL 1775601 (D.D.C. Mar. 31, 2014).  The Magistrate Judge reasoned that the government “has no interest in preventing what amount to legal arguments from being made public.  Furthermore, there is a significant public interest in allowing the public to know that the government is affirmatively seeking to silence an entity that is not a party to any judicial proceedings.”  Id. at *4.

The U.S. District Court for the District of Columbia reversed, holding that there was no First Amendment or common-law right of access to the government’s application because of the strong presumption that grand-jury proceedings and ancillary materials related to grand-jury proceedings are secret.  Matter of Application of United States of Am. for an Order of Nondisclosure Pursuant to 18 U.S.C. §2705(B) for Grand Jury Subpoena # GJ2014031422765, 41 F. Supp. 3d 1, 6-8 (D.D.C. 2014).

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D. Interviewing jurors

A D.C. federal district court has recognized Butterworth’s holding that grand jury witnesses have the right to “discuss any prior testimony [they] gave to a grand jury whose investigation is completed.” North v. U.S. Dept. of Justice, 658 F. Supp. 2d 163, 177 (D.D.C. 2009). However, the court refused to extend that right to encompass access by the witness to a copy of his grand jury subpoena. See id. at 176-78 (holding that the Executive Office of the U.S. Attorneys properly invoked FOIA Exemption 3 in denying former grand jury witness’s request for a copy of a grand jury subpoena issued to him in a previous trial because “disclosure of a subpoena would constitute official confirmation of [his] involvement and reveal some secret aspect of the grand jury proceedings”).

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VIII. Proceedings involving minors

Juvenile proceedings are closed to the public. Journalists may be admitted by applying to the presiding judge. The D.C. Superior Court Rules Governing Juvenile Proceedings specifically provide that “the general public shall be excluded from judicial hearings concerning juvenile delinquency or persons in need of supervision.” Super. Ct. Juv. R. 53(a)(1); see also D.C. Code § 16-2316(e). Nonetheless, “a person having a proper interest in a particular case or in the work of the Family Court may be admitted,” Super Ct. Juv. R. 53(a)(1), and “[a]ny authorized representative of the news media” are among the persons who “shall be deemed to have a proper interest in the work of the Family Court, and shall be admissible to Family Court proceedings after filling out an application pursuant to” Rule 53(a)(1). See Super. Ct. Juv. R. 53(a)(3). Among other things, the applicant is required to state that he or she “will refrain from divulging information identifying the respondent or members of the respondent’s family or any other child involved in the proceedings.” Id. at 53(a)(1).

Interpreting these rules in In re J.D.C., 594 A.2d 70 (D.C. 1991), the D.C. Court of Appeals directed that all media be excluded from proceedings in the trial of a juvenile charged in a shooting death, where the juvenile had already been identified in an article in The Wall Street Journal. The court held that the admission of the press at juvenile proceedings was a “discretionary” determination for the trial court. Id. at 75. In particular, the court explained: “[I]f there is no reasonable assurance that the admission of the press will be consistent with the protection of a juvenile respondent’s anonymity, then exclusion may be the only alternative which will not compromise the legislature’s paramount aim.” Id.

The general rule excluding the public from family-division proceedings may apply even when the family division performs a civil-division function.  In Morgan v. Foretich, for example, the D.C. Court of Appeals held that the presumption of access does not apply to civil contempt hearings in family-division cases.  521 A.2d 248 (D.C. 1987).

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A. Delinquency

See section regarding the D.C. Superior Court Rules Governing Juvenile Proceedings.

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B. Dependency

C. Other proceedings involving minors

In Morgan v. Foretich, 521 A.2d 248 (D.C. 1987) the D.C. Court of Appeals held that “the presumption of openness that underlies the Press-Enterprise standard does not attach to the evidentiary phase of a civil contempt hearing in a child custody and visitation rights case. Openness or closure must be determined on a case by case basis with no presumption attaching to either.” Id. at 253. “The trial court must balance the qualified due process right of the contemnor to an open civil contempt proceeding against the best interests and possible privacy rights of the child and the reputational or other interests of those opposing an open hearing.” Id.

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D. Prohibitions on photographing or identifying juveniles

According to the D.C. Superior Court Rules Governing Juvenile Proceedings, “[t]he taking of photographs, or radio or television broadcasting will not be permitted in any of the courtrooms of the Family Court during the progress of judicial proceedings, or in any of the anterooms adjacent thereto, in the detention rooms, in the lobby, or in the corridors of the court house occupied by the Family Court.”  Super. Ct. Juv. R. 53(b)(1).

While the public is generally excluded from juvenile proceedings, persons with a “proper interest” in the case may be admitted upon approval of the presiding judge.  In the event a third party is admitted, he or she “will refrain from divulging information identifying the respondent or members of the respondent’s family or any other child involved in the proceedings.” Id. at 53(a)(1).

Moreover, the D.C. Superior Court Rules of Civil Procedure state that “the names of minor children are to be excluded from public filings” and that “[i]f a party intends to file any document in which a minor child will be identified, only the initials of that child should be used in any public filing.”  Super. Ct. R. Civ. P. 5(f)(1)(b).

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E. Minor testimony in non-juvenile courts

IX. Special proceedings

A. Tribal Courts in the jurisdiction

B. Probate

D.C. superior court rules for the probate division exclude the following personal information from all filed documents: Social security numbers, drivers license numbers, dates of birth, and financial account numbers.  Super Ct. R. Prob. Div. 5.1.

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C. Competency and commitment proceedings

D. Attorney and judicial discipline

E. Immigration proceedings

F. Other proceedings

X. Restrictions on participants in litigation

A. Media standing to challenge third-party gag orders

All parties, including the media, have a right to challenge third-party gag orders.  See, e.g., In re United States for Nondisclosure Order Pursuant to 18 U.S.C. § 2705(b), 2014 U.S. Dist. LEXIS 43950 at *14 (D.D.C. 2014) (noting, in a ruling involving the government’s application for a gag order against Twitter, that “Twitter has a Fifth Amendment right to be heard before being subjected to a gag order.”).

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B. Gag orders on the press

In 2010, a D.C. Superior Court judge issued a restraining order, preventing the National Law Journal from publishing information obtained from a public court file that was supposed to be sealed. The information concerned the name of the agency that was investigating the former client of a law firm, which was now involved in litigation with that client in the Superior Court. The judge withdrew the restraining order at the request of the law firm’s former client. The newspaper, joined by media amici, had appealed the prior restraint to the D.C. Court of Appeals. The case was POM Wonderful, LLC v. ALM Media Properties LLC, No. 10-cv-904.

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C. Gag orders on participants

We are aware of only scant D.C. case law addressing issues related to gag orders. But for some discussion of related issues, see, for example, Roberson v. Bair, 242 F.R.D. 130, 132-24 (D.D.C. 2007) (applying Hubbard factors to a request that plaintiff be prevented from disclosing confidential information); Public Citizen Health Research Grp. v. FDA, 953 F. Supp. 400, 404-05 (D.D.C. 1996) (finding that order prohibiting plaintiff from disseminating certain information does not violate the First Amendment because the order is only temporary in nature and therefore is not a classic “prior restraint”).

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D. Interviewing judges

XI. Other issues

A. Interests often cited in opposing a presumption of access

National security is a recurring theme in cases in which press access to court records or proceedings is denied.  See, e.g., United States v. Poindexter, 732 F. Supp. 165 (D.D.C. 1990).  In Poindexter, several news organizations applied for access to the videotaped deposition of former President Ronald Reagan.  The court denied press access to the proceeding because, “[i]n short, national security concerns may be expected to permeate the questioning, and the unforeseeability of their specific emergence at any point means that an attempt to have press representatives present at some parts of the examination and not others, as the media applicants suggest, is not subject to reasonable implementation.”  Id. at 168.  The court, however, ruled that “immediate post-editing disclosure of the videotape will give assurances of fairness to both the public and the accused, as open criminal proceedings are properly designed to do, but it will do so without jeopardizing sensitive national security information.”  Id. at 170.  See also Dhiab v. Trump, 852 F.3d 1087 (D.C. Cir. 2017) (holding that there is no First Amendment right of access to classified material filed in court).

Trade secrets and sensitive business information can also be a factor in rebutting a presumption of access.  See, e.g., United States v. Hubbard, 650 F.2d 293 (D.C. Cir. 1980) (“[A] proprietary interest in a document, in combination with the privacy interests implicated by the facts and circumstances of the seizure, may give rise to a protectable interest in preventing indiscriminate public access to the records of which the document has become a part.”); Mokhiber v. Davis, 537 A.2d 1100 (D.C. 1988) (affirming the denial of press access to pretrial records that included, inter alia, confidential information that included trade secrets.).

Privacy, too, is frequently a prevailing concern.  D.C. courts, when determining whether to grant press access to civil and criminal case records, balance the public’s interest in the documents and the defendant’s privacy interest.  See United States v. Hubbard, 650 F.2d 293 (D.C. Cir. 1980) (staying the trial courts unsealing orders based on privacy concerns).

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B. Cameras and other technology in the courtroom

The following policy guidelines apply at the federal courthouse in D.C. with respect to cameras and related technology:

1. The use of any device that has the capability to photograph, record, or videotape is prohibited except in connection with ceremonial and educational functions of the courts (naturalization proceedings, investitures of new judges, memorial services, portrait presentation ceremonies, etc.). The use of such equipment is permissible within a judge’s chambers and courtroom at the discretion of the judge. Videotaping, recording, or photographing court events, ceremonies, and educational programs may be permitted with prior approval of the chief judge or court unit executive of the sponsoring court and under such conditions as he or she may prescribe. Acting at the direction of the chief judge of the sponsoring court, the special assistants to the chief judges are also authorized to approve these requests. The chief judge, court unit executive, or special assistant to the chief judge will notify the U.S. Marshal in writing in advance of the event that use of these devices is authorized.

2. Notwithstanding the above, the Court of Appeals may decide whether to permit the taking of photographs and radio and television coverage of Court of Appeals proceedings, subject to any restrictions in statutes, national and local rules, and such guidelines as the Judicial Conference may adopt.

Moreover, D.C. federal district court Local Civil Rule 83.1 provides:

The taking of photographs and operation of tape recorders inside the United States Courthouse and radio or television broadcasting from inside the courthouse during the progress of or in connection with judicial proceedings, including proceedings before a United States Magistrate Judge, whether or not court is actually in session, are prohibited. A judge may, however, permit (1) the use of electronic or photographic means for the presentation of evidence or the perpetuation of a record, (2) the broadcasting, televising, recording, or photographing of investitive, ceremonial, or naturalization proceedings, and (3) the videotaping or audio taping of educational programs with prior approval of the Chief Judge and under such conditions as he or she may prescribe. The use of the above equipment is permissible within a judge's chambers at the discretion of the judge. Contents of official tapes that are made as part of the record in a case will be treated in the same manner as official stenographic notes.

And D.C. federal district court Local Criminal Rule 53.1.1 provides:

The taking of photographs and operation of tape recorders inside the United States Courthouse and radio or television broadcasting from inside the courthouse during the progress of or in connection with judicial proceedings, including proceedings before a United States Magistrate Judge, whether or not court is actually in session, are prohibited. A judge may, however, permit (1) the use of electronic or photographic means for the presentation of evidence or the perpetuation of a record, and (2) the broadcasting, televising, recording, or photographing of investitive, ceremonial, or naturalization proceedings. Contents of official tapes that are made as part of the record in a case will be treated in the same manner as official stenographic notes.

As for cell phones, visitors at the federal courthouse may keep their cell phones with them if they do not have cameras. Additionally, camera phones may be brought into the courthouse by members of the bar, jurors, credentialed members of the media, and Parole Commission Hearing Examiners. The policy is available at https://www.dcd.uscourts.gov/electronic-device-policy.

In the D.C. local courts, Rule 53(b) of the Superior Court Rules of Criminal Procedure provides:

(1) In General. The taking of photographs, or radio or television broadcasting, or except with the approval of the court the use of any mechanical recording device, shall not be permitted in any courtroom of this court during the progress of judicial proceedings, or in any of the anterooms adjacent thereto, in any of the cellblocks, in the lobby, or in the corridors of the courthouse.

(2) Exception. The taking of photographs in any office or other room of the courthouse shall be only with the knowledge and consent of the official or person in charge of such office or room and of the person or persons photographed.

Rule 203(b) of the Superior Court Rules of Civil Procedure and Superior Court Juvenile Proceedings Rule 53(b) contain similar limitations on photography and broadcasting.

Further, according to guidance on the local D.C. courts website, available at https://www.dccourts.gov/sites/default/files/COURT-BUILDING-REGULATIONS.pdf:

Photography, video-recording, and audio-recording are prohibited within the District of Columbia Courts. Prohibited photography, video-recording, and audio-recording includes cellular telephones and other electronic devices, such as personal assistant devices or palm notepads with built-in features enabling the device to take photographs, or make audio- or video- recordings.

All persons entering the courthouse with a camera or recording device will be asked to leave it with the Court Security Officer.

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C. Tips for covering courts in the jurisdiction

The local D.C. court system is the equivalent of a state court system, and is comprised of a trial court called the Superior Court, and an appellate court called the D.C. Court of Appeals.  The Superior Court has five divisions—Civil, Criminal, Family Court, Probate, and Tax—along with a domestic violence unit.  The Court of Appeals sits in three-judge panels, and audio of the cases they hear can be streamed real-time through the official website: https://www.dccourts.gov/court-of-appeals/oral-arguments.  For a useful guide on covering the D.C. courts, which includes contact information for the courts and additional press-related information, see Journalists’ Handbook to the Courts in the District of Columbia, Council for Court Excellence, https://www.dccourts.gov/sites/default/files/pdf-forms/JournalistsHandbook.pdf.

Information on permissible conduct within the local D.C. courts, including decorum, dress code, and prohibited items can be found here: https://www.dccourts.gov/contact-us.

Information on permissible conduct within the federal D.C. courts, including decorum, prohibited items, and press access, can be found here: http://www.cadc.uscourts.gov/internet/home.nsf/Content/VL+-+Rules+Policies+Procedures+-+Media Information+-+Media+Policy.

Information on ordering court transcripts within the local D.C. court system can be found here: https://www.dccourts.gov/about/learn-more/court-reporting-and-recording-division.

Information on ordering court transcripts within the federal court system in D.C. can be found here: https://www.dcd.uscourts.gov/content/request-transcript.

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