Missouri
Author
Jean Maneke, Esq.
The Maneke Law Group, L.C.
2345 Grand Blvd., Ste. 1600
Kansas City, MO 64108
(816) 753-9000
Special thanks to former RCFP legal fellow Audrey Greene for her contributions to this chapter.
Last updated June 2021
CompareOpen Courts Compendium
CompareI. Introduction: Access rights in the jurisdiction
CompareA. The roots of access rights
Missouri courts have recognized a presumption in favor of court records being open to the public, reasoning that justice is best served when done in full view of those to whom all courts are ultimately responsible: the public. Brewer v. Cosgrove, 498 S.W.3d 837, 841 (Mo. App. E.D. 2016).
Missouri courts have acknowledged the U.S. Supreme Court’s decisions “that the press and general public have a First Amendment right of access to criminal trials,” including “pretrial proceedings.” State ex rel. Pulitzer, Inc. v. Autrey, 19 S.W.3d 710, 712 (Mo. App. 2000) (citing cases, including Press-Enterprise Co. v. Superior Court, 478 U.S. 1, 15 (1986)).
Missouri courts have also recognized a common law right of access to court records. Pulitzer Publ'g. Co. v. Transit Cas. Co., 43 S.W.3d 293, 297-98 (Mo. 2001) (en banc) (“As a member of the public, however, Pulitzer had an inherent interest in the court records that is recognized by the common law.”) (citing Nixon v. Warner Commc’ns, 435 U.S. 589, 597–98 (1978)).
In Autrey, a Missouri appellate court observed:
Missouri's constitution expressly provides in Article 1, Section 14 that “the courts of justice shall be open to every person.” Additionally, there is support for such a right in Missouri's statutes. Section 476.170 RSMo (1994) states that “the sitting of every court shall be public and every person may freely attend same.” Section 510.200, RSMo (1994) also states “all trials upon the merits shall be conducted in open court and insofar as convenient in the regular courtroom.” Thus, the existence of a right of public access to criminal proceedings in Missouri is certain.
State ex rel. Pulitzer, Inc. v. Autrey, 19 S.W.3d 710, 713 (Mo. App. E.D. 2000).
Missouri Supreme Court Operating Rule 2 recognizes a general presumption in favor of openness with respect to court records, while identifying certain limited exceptions, such as for records deemed “confidential” by statute, court rule, or a court order.
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B. Overcoming a presumption of openness
Supreme Court Operating Rule 4.24 sets forth what records are deemed confidential and “inaccessible to the general public.”
The Missouri Court of Appeals for the Eastern District has acknowledged exceptions to the presumption of openness—as established by the legislature and by the courts—but observed that “the presumption of openness cannot be overcome absent a compelling justification that the records should be closed,” and a court seeking to seal court records must “identify specific and tangible threats to important values in order to override the importance of the public right of access.” Brewer v. Cosgrove, 498 S.W.3d 837, 841–42 (Mo. App. E.D. 2016). The court, therefore, held that a trial court considering the sealing of a record must conduct a balancing test that takes into account both the litigants’ interest in protection of sensitive information and the public’s interest in openness. Id. The trial court’s reasons for any sealing must be recorded, and “sealing the entire file will almost never be justified.” Id. at 842.
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C. Procedural prerequisites to closure
Prior to closing a courtroom, trial courts must allow the public the right to object to the closure. See State ex rel. Pulitzer, Inc. v. Autrey, 19 S.W.3d 710, 713 (Mo. App. 2000). There is also a “substantive requirement that the trial court make detailed findings, on the record regarding a proposed closure.” Id.
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II. Procedure for asserting right of access to proceedings and records
CompareA. Media standing to challenge closure
Media organizations have standing to seek a writ of prohibition challenging closure of a proceeding or sealing of court records, even when they are not parties to a case. See State ex rel. St. Louis Post-Dispatch, LLC v. Garvey, 179 S.W.3d 899, 900 (Mo. 2005) (en banc) (“Although neither the Post-Dispatch nor KSDK are parties to the underlying juvenile case, each has standing to seek a writ because the right of access sought to be protected is one owing to the entire public, thus reducing the interest necessary to confer standing.”); see also Pulitzer Publ’g. Co. v. Transit Cas. Co., 43 S.W.3d 293, 299 (Mo. 2001) (en banc). A writ of prohibition “may be issued when a party raises an important constitutional issue and has no other adequate legal remedy to pursue the issue.” Garvey, 179 S.W.3d at 900.
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B. Procedure for requesting access in criminal cases
A Missouri appellate court granted a news outlet’s petition for a writ of prohibition, challenging the closure of a criminal proceeding by the trial court. State ex rel. Pulitzer, Inc. v. Autrey, 19 S.W.3d 710, 713 (Mo. App. 2000). That appellate court recognized that the trial court must “allow the public the right to object to the closure of a courtroom,” but did not specify the procedure for doing so. Id.
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C. Procedure for requesting access in civil matters
Missouri courts appear to allow journalists to file motions to intervene, although there is little case law on this topic. In one case, a newspaper publisher intervened in an insolvent insurance company's receivership proceeding, seeking to unseal court records. The Missouri Supreme Court held that there was a presumption favoring the public's right to inspect and copy the court records and that the lower court had erred in denying the publisher’s request. See Transit Cas. Co. ex rel. Pulitzer Publ'g Co. v. Transit Cas. Co. ex rel. Intervening Emps., 43 S.W.3d 293 (Mo. 2001) (en banc), as modified (Apr. 24, 2001).
Missouri Supreme Court Rule 52.12(c) sets forth the procedure for filing a motion to intervene.
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D. Obtaining review of initial court decisions
Media organizations have standing to seek a writ of prohibition challenging denials of access, even when they are not parties to a case. See State ex rel. St. Louis Post-Dispatch, LLC v. Garvey, 179 S.W.3d 899, 900 (Mo. 2005) (en banc) (“Although neither the Post-Dispatch nor KSDK are parties to the underlying juvenile case, each has standing to seek a writ because the right of access sought to be protected is one owing to the entire public, thus reducing the interest necessary to confer standing.”); see also Pulitzer Publ’g. Co. v. Transit Cas. Co., 43 S.W.3d 293, 299 (Mo. 2001) (en banc). A writ of prohibition “may be issued when a party raises an important constitutional issue and has no other adequate legal remedy to pursue the issue.” Garvey, 179 S.W.3d at 900.
The Missouri Supreme Court observed that “[a]s a general matter, the proper course for an aggrieved party without a final judgment is ordinarily by extraordinary writ.” See Pulitzer Publ’g. Co., 43 S.W.3d at 297-98. The court continued:
Parties generally may seek a remedial writ in an appropriate court without intervening as a party in the main action. The relator “should show some interest in the records which he seeks to inspect, and it may well be doubted whether the writ would in any case be allowed upon the relation of a mere stranger.” Where, as here, the duty sought to be imposed on a public official is one owing to the entire public, the interest necessary to establish standing to seek a writ is exceedingly low.
Id. at 299 (citations omitted).
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III. Access to criminal proceedings
CompareA. In general
In Missouri, courts have held that the right of public access to criminal proceedings is “certain” but “qualified and must be carefully balanced with the defendant’s absolute Sixth Amendment right to a fair trial.” State ex rel. Pulitzer, Inc. v. Autrey, 19 S.W.3d 710, 713 (Mo. App. 2000); State v. Williams, 2010 WL 4282175 *5 (Mo. App. Nov. 2, 2010) (“The right to a public trial belongs not only to the accused, under the Sixth Amendment, but to the press and the public as well, under the First Amendment.”).
CompareB. Pretrial proceedings
Like the U.S. Supreme Court, Missouri courts recognize that the right of public access includes pretrial proceedings such as change of venue hearings. See State ex rel. Pulitzer, Inc. v. Autrey, 19 S.W.3d 710, 713 (Mo. App. 2000) (citing Press-Enterprise Co. v. Superior Court, 478 U.S. 1, 15 (1986)).
CompareC. Criminal trials
Missouri courts have recognized the constitutional and statutory basis for the right of access to criminal trials. See State ex rel. Pulitzer, Inc. v. Autrey, 19 S.W.3d 710, 712-13 (Mo. App. 2000).
CompareD. Post-trial proceedings
There does not appear to be any Missouri case law addressing this. However, the U.S. Court of Appeals for the Eighth Circuit held in United States v. Thompson that the Sixth Amendment right to a public trial attaches at sentencing, although the court found that closure was warranted in that case to protect a witness’ safety. 713 F.3d 388, 394 (8th Cir. 2013) (recognizing “the First Amendment public trial access jurisprudence . . . and, most importantly . . . that public access at a sentencing hearing plays a significant positive role in its functioning and furthers the benefits sought to be afforded the accused under the Sixth Amendment”).
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E. Appellate proceedings
Missouri Court Operating Rule 20 discusses access to state Supreme Court hearings and records, recognizing that “[a]ll case records of the Supreme Court, including opinions and votes thereon, orders, briefs, and records on appeal, shall be open to the public unless closed by order of the Supreme Court.” Likewise, oral argument before the Supreme Court is presumptively open to the public, unless closed by order of the court.
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IV. Access to criminal court records
CompareA. In general
Missouri Court Operating Rule 2 recognizes a general presumption in favor of access to court records, with limited exceptions, such as for materials deemed “confidential.”
Missouri Court Operating Rule 20 discusses access to state Supreme Court hearings and records, recognizing that “[a]ll case records of the Supreme Court, including opinions and votes thereon, orders, briefs, and records on appeal, shall be open to the public unless closed by order of the Supreme Court.” Likewise, oral argument before the Supreme Court is presumptively open to the public, unless closed by order of the court.
CompareB. Arrest records
Missouri law permits persons to petition the court to have their arrest record expunged if several criteria apply. Those criteria are identified in Section 610.140 of the Revised Statutes of Missouri.
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C. Dockets
Operating Rule 2 provides that docket entries are presumptively public.
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D. Warrants, wiretaps and related materials
The Eighth Circuit has held that the First Amendment right of public access extends to the documents filed in support of search warrant applications. In re Search Warrant for Secretarial Area Outside Off. of Gunn, 855 F.2d 569, 573 (8th Cir. 1988).
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E. Discovery materials
CompareF. Pretrial motions and records
CompareG. Trial records
Missouri law sets forth when an accused’s case file may be closed:
If the person arrested is charged but the case is subsequently nolle prossed, dismissed, or the accused is found not guilty or imposition of sentence is suspended in the court in which the action is prosecuted, official records pertaining to the case shall thereafter be closed records when such case is finally terminated except as provided in subsection 2 of this section and section 610.120 and except that the court's judgment or order or the final action taken by the prosecutor in such matters may be accessed.
Mo. Ann. Stat. § 610.105 (West). In one case, the Missouri Court of Appeals held that a case was not “terminated” because the defendant had not completed his probation term, nor had that term been shortened by the trial court. State ex rel. Pulitzer Missouri Newspapers, Inc. v. Seay, 330 S.W.3d 823, 827 (Mo. Ct. App. 2011). Therefore, the file could not be closed. Id.
CompareH. Post-trial records
CompareI. Appellate records
Missouri Court Operating Rule 20 discusses access to state Supreme Court hearings and records, recognizing that “[a]ll case records of the Supreme Court, including opinions and votes thereon, orders, briefs, and records on appeal, shall be open to the public unless closed by order of the Supreme Court.” Likewise, oral argument before the Supreme Court is presumptively open to the public, unless closed by order of the court.
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J. Other criminal court records issues
The Missouri Supreme Court has held that the First Amendment does not “guarantee[] the public and the news media access to an investigative proceeding whose purpose is to determine whether there is probable cause that a non-criminal violation of the campaign finance disclosure law occurred.” Geier v. Mo. Ethics Comm’n, 474 S.W.3d 560, 571 (Mo. 2015).
CompareV. Access to civil proceedings
CompareA. In general
Missouri Court Operating Rule 20.02 recognizes the presumptive right of access to Supreme Court oral arguments and meetings when the court is operating in an administrative capacity.
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B. Pre-trial proceedings
CompareC. Trials
CompareD. Post-trial proceedings
CompareE. Appellate proceedings
Missouri Court Operating Rule 20 discusses access to state Supreme Court hearings and records.
CompareVI. Access to civil records
CompareA. In general
In Missouri, courts have recognized that court records are presumptively open under the common law and public records law. See Pulitzer Publ’g. Co. v. Transit Cas. Co. (In re. Transit Cas. Co.), 43 S.W. 3d 293, 300 (Mo. 2001) (en banc) (citing Nixon v. Warner Comm’cns, 435 U.S. 589, 597–98 (1978)).
Missouri Statutes section 109.180 “codifies the presumption in favor of openness, stating that: ‘Except as otherwise provided by law, all state, county and municipal records kept pursuant to statute or ordinance shall at all reasonable times be open for a personal inspection by any citizen of Missouri, and those in charge of the records shall not refuse the privilege to any citizen.’” Id. (emphasis added). To learn more about Missouri’s public records laws, check out the Missouri Open Government Guide.
The court in Pulitzer recognized that the “public's right to inspect court and other public records . . . stems from the public's presumed interest in the integrity and impartiality of its government.” Id. at 301. “[I]t is simply beyond dispute that public records are freely accessible to ensure confidence in the impartiality and fairness of the judicial system, and generally to discourage bias and corruption in public service.” Id. The court explained:
In accordance with this long-established legal tradition, this Court in 1998 adopted Court Operating Rule 2, (formerly Administrative Rule 2) which governs public access to the records of the judicial department. It also provides for exceptions to the general rule of openness. . . .
[T]his Court affirms, subject to the exceptions of Court Operating Rule 2, that there is a presumption in favor of the public's right of access to court records and that the presumption cannot be overcome absent a compelling justification [from the objecting party] that the records should be closed.
In order to close court or other public records, however, a court in its order must identify specific and tangible threats to important values in order to override the importance of public right of access. Vague or uncertain threats claimed by one party normally would not justify closure.
Id. at 301–02.
For further discussion, see Brewer v. Cosgrove:
We acknowledge that the parties here may consider the matters giving rise to this litigation to be embarrassing, but parties are not entitled to litigate in private even if both agree with the request to do so. Nevertheless, our courts have long been adept at handling sensitive matters such as trade secrets, the identity of juvenile crime victims or certain juvenile perpetrators, illicit photographs, and medical records of non-parties. Trade secrets are routinely kept from the public eye through protective orders. Yet, the entire case is not sealed or even all of the company's sensitive information if it does not rise to the level of being confidential, and courts can issue protective orders that limit the dissemination of confidential information to only those persons involved in the litigation.
498 S.W.3d 837, 841–42 (Mo. App. E.D. 2016) (citations omitted).
Missouri Court Operating Rule 20 discusses access to state Supreme Court hearings and records.
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B. Dockets
Missouri Court Operating Rule 2 establishes that docket entries in civil cases are publicly available.
CompareC. Discovery materials
CompareD. Pre-trial motions and records
CompareE. Trial records
CompareF. Settlement records
CompareG. Post-trial records
CompareH. Appellate records
Missouri Court Operating Rule 20.02 provides:
Compare(a) All case records of the Supreme Court, including opinions and votes thereon, orders, briefs, and records on appeal, shall be open to the public unless closed by order of the Supreme Court.
I. Other civil court records issues
The U.S. Court of Appeals for the Eighth Circuit has held that the First Amendment right of access applies to contempt proceedings. In re Iowa Freedom of Info. Council, 724 F.2d 658, 661 (8th Cir. 1983).
CompareVII. Jury and grand jury access
CompareA. Access to voir dire
CompareB. Juror identities, questionnaires and other records
Missouri Court Operating Rule 16 prohibits “media coverage” of any “prospective juror, juror, and jury selection, including any audio, video or other electronic recording, photograph, or report of any kind, taken or made in or out of the courtroom, in which the face or other identifying characteristic of a juror or prospective juror is discernable.” The rule defines “media coverage” as “audio, video or electronic recording; broadcasting, filming or televising; photographing; or otherwise transmitting information, including by text, electronic mail, online post or other electronic message, whether for live or later dissemination in any medium.”
CompareC. Grand jury proceedings and records
CompareD. Interviewing jurors
CompareVIII. Proceedings involving minors
CompareA. Delinquency
For a discussion of delinquency proceedings, see State ex rel. St. Louis Post-Dispatch, LLC v. Garvey, 179 S.W.3d 899, 901 (Mo. 2005) (en banc) (per curiam) (“[Mo. Rev. Stat.] Section 211.171.6 establishes a rule generally excluding the public from all juvenile proceedings, while specifically exempting from mandatory closure those cases in which the juvenile is accused of conduct that would be a class A or B felony. . . . The statute does not limit public access to a particular phase of the proceedings. It provides for access to the entire case.”)
CompareB. Dependency
CompareC. Other proceedings involving minors
Missouri law prohibits the general public from juvenile court hearings. Mo. Rev. Stat. § 211.171.5 (1986). It further provides that certain juvenile records be destroyed or sealed when the child reaches the age of seventeen if “the court finds that it is in the best interest of the child.” Id. § 211.321.4.
In State ex rel. St. Louis Post-Dispatch LLC v. Garvey, the court held that the statutory rule excluding the public from juvenile proceedings did not apply to a juvenile defendant charged with conduct that would constitute a class A felony if the defendant were tried as an adult. State ex rel. St. Louis Post-Dispatch LLC v. Garvey, 179 S.W.3d 899 (Mo. 2005).
Juvenile courts in Missouri also have jurisdiction over proceedings involving children in need of care or support, adoption proceedings, and guardianship proceedings, Mo. Rev. Stat. § 211.031.1 (1986), and records of those proceedings are regarded as confidential. Webster Groves Sch. Dist. v. Pulitzer Publ’g Co., 898 F.2d 1371, 1375 (1990). Records of those actions “also are regarded as confidential.” Id.
CompareD. Prohibitions on photographing or identifying juveniles
Missouri Court Operating Rule 16 prohibits “media coverage” of any “judicial proceeding Missouri law requires to be closed, including certain juvenile, adoption, domestic relations, or child custody proceedings, except a judge may permit media coverage of a juvenile who is being prosecuted as an adult in a criminal proceeding.” The rule defines “media coverage” as “audio, video or electronic recording; broadcasting, filming or televising; photographing; or otherwise transmitting information, including by text, electronic mail, online post or other electronic message, whether for live or later dissemination in any medium.”
Missouri Court Operating Rule 16.02(b)(4) also provides that if a juvenile requests not to be included in media coverage, the media must comply with this request.
CompareE. Minor testimony in non-juvenile courts
CompareIX. Special proceedings
CompareA. Tribal Courts in the jurisdiction
CompareB. Probate
CompareC. Competency and commitment proceedings
CompareD. Attorney and judicial discipline
In State ex rel. Missouri Lawyers Media, LLC v. Disciplinary Hearing Panel No. DHP-11-029, 396 S.W.3d 931, 932 (Mo. 2013), the court held that an attorney disciplinary proceeding is public except for matters which are subject to a narrowly crafted protective order, based on whether records being relied upon are otherwise sealed or any identifiable “good cause” why other records should be closed.
CompareE. Immigration proceedings
CompareF. Other proceedings
CompareX. Restrictions on participants in litigation
CompareA. Media standing to challenge third-party gag orders
CompareB. Gag orders on the press
CompareC. Gag orders on participants
Missouri Court Operating Rule 16 states that it “should not be interpreted to prohibit a juror whose term of service is complete from voluntarily disclosing his or her identity to media after the judge has discharged the jury.”
CompareD. Interviewing judges
CompareXI. Other issues
CompareA. Interests often cited in opposing a presumption of access
In Brewer v. Cosgrove, a Missouri appellate court held:
We acknowledge that the parties here may consider the matters giving rise to this litigation to be embarrassing, but parties are not entitled to litigate in private even if both agree with the request to do so. Nevertheless, our courts have long been adept at handling sensitive matters such as trade secrets, the identity of juvenile crime victims or certain juvenile perpetrators, illicit photographs, and medical records of non-parties. Trade secrets are routinely kept from the public eye through protective orders. Yet, the entire case is not sealed or even all of the company's sensitive information if it does not rise to the level of being confidential, and courts can issue protective orders that limit the dissemination of confidential information to only those persons involved in the litigation.
498 S.W.3d 837, 841–42 (Mo. App. E.D. 2016) (citations omitted).
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B. Cameras and other technology in the courtroom
Missouri Court Operating Rule 16 details the use of cameras and audio-recording devices in court proceedings. It also lists scenarios in which no photography or videography is permitted.
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