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New York

Open Courts Compendium

 

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Reporters Committee for Freedom of the Press staff

Last updated March 8, 2021

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I. Introduction: Access rights in the jurisdiction

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A. The roots of access rights

“The First Amendment to the United States Constitution guarantees the press and the public a right of access to trial proceedings.” Courtroom Television Network LLC v. State, 5 N.Y.3d 222, 231, 833 N.E.2d 1197 (2005) (citing Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 580 (1980)); see also Globe Newspaper Co. v. Superior Ct., 457 U.S. 596, 605 (1982); Press-Enterprise Co. v. Superior Ct., 464 U.S. 501, 510, (1984) (“Press-Enterprise I”); Press-Enterprise Co. v. Superior Ct., 478 U.S. 1, 9 (1986) (“Press-Enterprise II).

Additionally, “[u]nder New York law, there is a broad presumption that the public is entitled to access to judicial proceedings and court records.  This State has long recognized that civil actions and proceedings should be open to the public in order to ensure that they are conducted efficiently, honestly, and fairly. . . . The right of access to court proceedings and records also is firmly grounded in the common law, and the existence of the correlating common-law right to inspect and copy judicial records is beyond dispute.”  Mosallem v. Berenson, 76 A.D.3d 345, 348, 905 N.Y.S.2d 575, 578 (1st Dep’t 2010) (internal citations omitted); see also Coopersmith v. Gold, 156 Misc. 2d 594, 601, 594 N.Y.S.2d 521, 526 (N.Y. Sup. Ct. 1992) (“News media and the public have a federal constitutional right pursuant to the First, Sixth and Fourteenth Amendments, a presumptive state constitutional right under Article 1, Section 8 of the New York State Constitution, a statutory right as set forth in sections 4 of the Judiciary Law and 12 of the Civil Rights Law and common-law right to access to judicial proceedings and a common-law right to inspect things filed or admitted into evidence therein.”); N.Y. Ct. R. § 216.1 (providing that trial courts shall not seal court records “except upon a written finding of good cause, which shall specify the grounds thereof,” considering the interests of the public as well as of the parties, unless otherwise provided by statute or rule).

The press, however, is not imbued with any special right of access but possesses “the same right of access as the public.”  Courtroom Television Network LLC v. State, 5 N.Y.3d 222, 231, 833 N.E.2d 1197 (2005) (citing Richmond Newspapers, 448 U.S. at 573).

The right to access proceedings and records applies to both civil and criminal matters.  In re Adoption of Doe, 16 Misc. 3d 714, 716–17, 842 N.Y.S.2d 200, 202 (Sup. Ct. 2007) (“The First Amendment right of access to criminal trials applies equally to civil trials”); Coopersmith v. Gold, 156 Misc. 2d 594, 602, 594 N.Y.S.2d 521, 527 (Sup. Ct., Rockland Cnty., 1992) (“While most of the principles regarding the public nature of trials arise from criminal cases they are, of course, applicable to civil cases.”); Oles v. Houston, 138 Misc. 2d 1075, 1078, 525 N.Y.S.2d 1008, 1010–11 (Civ. Ct. 1988) (“[T]he right of public access to proceedings is of the same significance to the public whether the case is designated ‘civil’ or ‘criminal.’”).

New York's approach to courtroom closure is “comparable to the federal analysis.”  Daily News, L.P. v. Wiley, 126 A.D.3d 511, 512, 6 N.Y.S.3d 19, 22 (N.Y. App. Div. 2015) (citations omitted).

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B. Overcoming a presumption of openness

While there is a presumption of openness, the “right of the public and the press to attend court proceedings is not absolute.”  Westchester Rockland Newspapers, Inc. v. Leggett, 48 N.Y.2d 430, 446-47, 399 N.E.2d 518, 527–28 (1979).  Where leaving proceedings open to the public “would jeopardize the right of the accused to a fair trial, the competing interests must be balanced and reconciled as far as possible.”  Id.; Associated Press v. Bell, 70 N.Y.2d 32, 510 N.E.2d 313, 316–17 (1987) (“Although open criminal proceedings in general and open suppression hearings in particular serve to assure fairness and integrity, there are circumstances where the right of the accused to a fair trial might be inhibited or undermined by unrestricted publicity.  Where a defendant's right to a fair trial is threatened the trial court must determine whether the situation is such that the rights of the accused override the qualified First Amendment right of access.”) (citations omitted).

“In short, the right of the public to attend judicial proceedings ends only where the defendant's right to trial by an impartial jury is unalterably threatened.” Westchester Rockland Newspapers, Inc. v. Leggett, 48 N.Y.2d 430, 446–-47, 399 N.E.2d 518, 527–-28 (1979).

Moreover, “[w]here the Legislature has chosen to temper or abrogate the presumption of openness, it has done so in specific language (see, e.g., Judiciary Law, § 4; Public Officers Law, § 103), and these exceptions have been strictly construed by the courts.”  Herald Co., Inc. v. Weisenberg, 59 N.Y.2d 378, 381–82, 452 N.E.2d 1190, 1191 (1983).

Regarding sealing court records, “[t]he presumption against the sealing of court records remains unless there is a showing of good cause by the movant showing that the confidentiality of the parties outweighs the public interest in the proceedings.”  Doe v. Bellmore-Merrick Cent. High Sch. Dist., 1 Misc. 3d 697, 699, 770 N.Y.S.2d 847, 849 (N.Y. Sup. Ct. 2003).  Because “[c]onfidentiality is the exception and not the rule, the court is always required to make an independent determination of good cause.”  Id.

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C. Procedural prerequisites to closure

In criminal and civil cases, the press must be afforded an opportunity to be heard before a proceeding is closed or a record is sealed.  See, e.g., Coopersmith v. Gold, 156 Misc. 2d 594, 594 N.Y.S.2d 521 (Sup. Ct. 1992) (explaining that “the news media are accorded standing to be heard, on request, prior to a ruling on closure or sealing” in a medical malpractice action); Herald Co. v. Weisenberg, 59 N.Y.2d 378, 383, 452 N.E.2d 1190, 1192 (1983) (finding that “no hearing,” including the administrative unemployment insurance hearing at issue, “should be closed before affected members of the news media are given an opportunity to be heard in a preliminary proceeding adequate to determine the magnitude of any genuine public interest in the matter”); Capital Newspapers Div. of the Hearst Corp. v. Moynihan, 71 N.Y.2d 263, 272, 519 N.E.2d 825, 830 (1988) (holding that closure could only occur “upon a motion heard on the record in open court, with affected members of the media given an opportunity to participate”).

In addition, before a proceeding is closed, the court must make specific, written findings on the record that (1) “there is a substantial probability that the defendant's right to a fair trial will be prejudiced by publicity that closure would prevent,” and, (2) “reasonable alternatives to closure cannot adequately protect the defendant's fair trial rights.”  Associated Press v. Bell, 70 N.Y.2d 32, 510 N.E.2d 313, 316–17 (1987) (citations omitted).

“Closure is permitted only in ‘unusual circumstances' or upon a clear showing that such an order is required to prevent “a serious and imminent threat’ to ‘the integrity of the trial.’ Where no showing of prejudice has been made, an order closing the courtroom is inappropriate and must be vacated.”  Gannett Co. v. DePasquale, 55 A.D.2d 107, 112, 389 N.Y.S.2d 719, 723–24 (4th Dep’t 1976), modified sub nom. Gannett Co. v. De Pasquale, 43 N.Y.2d 370, 372 N.E.2d 544 (N.Y. 1977), aff'd sub nom. Gannett Co. v. DePasquale, 443 U.S. 368 (1979).

Those seeking closure bear the heavy burden of:

[D]emonstrating that there exists a high degree of probability that defendant's right to a fair trial would be jeopardized to such an extent that dissemination of prejudicial pretrial publicity would result in reversal of any conviction thereafter obtained.  In making this determination, moreover, the court must always bear in mind that an open judicial proceeding is a necessary correlative to a free and open society.

Westchester Rockland Newspapers, Inc. v. Leggett, 48 N.Y.2d 430, 446-47, 399 N.E.2d 518, 527–28 (1979); see also Associated Press v. Bell, 70 N.Y.2d 32, 510 N.E.2d 313, 316–17 (1987) (“A defendant who asserts that his right to a fair trial may be compromised by an open proceeding bears the burden of supporting that contention.”).

With regards to court records, New York enacted New York Court Rules and Regulation § 216.1, which allow the sealing of court records only where good cause is shown:

(a) Except where otherwise provided by statute or rule, a court shall not enter an order in any action or proceeding sealing the court records, whether in whole or in part, except upon a written finding of good cause, which shall specify the grounds thereof. In determining whether good cause has been shown, the court shall consider the interests of the public as well as of the parties. Where it appears necessary or desirable, the court may prescribe appropriate notice and opportunity to be heard.

(b) For purposes of this rule, “court records” shall include all documents and records of any nature filed with the clerk in connection with the action. Documents obtained through disclosure and not filed with the clerk shall remain subject to protective orders as set forth in CPLR 3103(a).

While “good cause” is not defined, “a sealing order should clearly be predicated upon a sound basis or legitimate need to take judicial action” and “[a] finding of ‘good cause’ presupposes that public access to the documents at issue will likely result in harm to a compelling interest of the movant and no alternative to sealing can adequately protect the threatened interest.”  Doe v. Bellmore-Merrick Cent. High Sch. Dist., 1 Misc. 3d 697, 699, 770 N.Y.S.2d 847, 849 (N.Y. Sup. Ct. 2003).

The party seeking to seal court records bears the burden of justifying the restriction on public access.  Id.; see also Bd. of Managers of S. Star v. Grishanova, 38 Misc. 3d 1231(A), 969 N.Y.S.2d 801 (Sup. Ct. 2013) (“The Court's task i[n] determining whether sealing is warranted, is to balance the interests of the public as well as of the parties. . . . . Embarrassment, damage to reputation and the general desire for privacy do not constitute good cause to seal court records.”); Doe v. Bellmore-Merrick Cent. High Sch. Dist., 1 Misc. 3d 697, 699–700, 770 N.Y.S.2d 847 (Sup. Ct. 2003).

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

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A. Media standing to challenge closure

The media has standing to challenge closure and/or sealing.  See, e.g., Coopersmith v. Gold, 156 Misc. 2d 594, 599, 594 N.Y.S.2d 521, 525 (Sup. Ct., Rockland Cty., 1992) (finding media movant “correctly contends that it has standing to be heard on the questions of closure or sealing of records”); see also Nat'l Broad. Co., Inc. v. Cooperman, 116 A.D.2d 287, 289, 501 N.Y.S.2d 405, 406 (2d Dep’t 1986) (noting that “NBC clearly ha[d] standing to question the validity” of a trial court order prohibiting discussion of the case, as it had “been effectively cut off from any access whatever to important sources of information about the trial”).

Before a proceeding is closed or a record is sealed, “the Court is obligated, where possible, to afford the news media an opportunity to be heard.” Id. (citing Herald Co. v. Weisenberg, 59 N.Y.2d 378, 383, 465 N.Y.S.2d 862, 452 N.E.2d 1190 (1983); Gannett Co. v. DePasquale, 43 N.Y.2d 370, 381, 401 N.Y.S.2d 756, 372 N.E.2d 544 (1977), aff'd, 443 U.S. 368 (1979); Poughkeepsie Newspapers, Inc. v. Rosenblatt, 92 A.D.2d 232, 459 N.Y.S.2d 857 (2d Dep't 1983), aff'd, 61 N.Y.2d 1005, 475 N.Y.S.2d 370, 463 N.E.2d 1222 (1984)).  Formal intervention is not necessary; “the news media are accorded standing to be heard, on request, prior to a ruling on closure or sealing.”  Id. (emphasis original).

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B. Procedure for requesting access in criminal cases

The procedure for requesting access in criminal proceedings in New York courts is not well-defined. New York courts have allowed members of the press to file motions requesting access.  See, e.g., People v. Allen, 57 Misc. 3d 936 (Livingston Cty. Ct. 2017).

While many jurisdictions permit members of the press to assert their right of access by intervening in an ongoing matter, it is unclear if non-parties can intervene in New York criminal cases in order to assert the right of access.  New York’s Criminal Procedure Law does not provide a mechanism for a non-party to intervene.  See, e.g., People v. Conley, 165 A.D.3d 1602, 1602 (4th Dep’t 2018).

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C. Procedure for requesting access in civil matters

The press may move to intervene in the proceeding.  See Maxim, Inc. v. Feifer, 145 A.D.3d 516, 517, 43 N.Y.S.3d 313, 315 (N.Y. App. Div. 2016) (“The right of public access includes the right of the press to read and review court documents, unless those documents have been sealed pursuant to a statutory provision or by a properly issued sealing order. To allow them to assert their interests here, the proposed intervenors should be allowed to intervene in both actions for the limited purpose of obtaining access to court records.”); see also Mancheski v. Gabelli Grp. Capital Partners, 39 A.D.3d 499, 501, 835 N.Y.S.2d 595, 597 (2d Dep’t 2007) (citations omitted) (“[I]t was a provident exercise of discretion to permit Bloomberg News to intervene in the action for the limited purpose of challenging the sealing of the summary judgment motion papers.”).  The court in Mancheski also explained that the media intervener, Bloomberg News, was not required to meet “formal requirements for intervention under CPLR 1012 or 1013, since, prior to issuance of an order to seal judicial documents, the court is obligated, where possible, to afford news media an opportunity to be heard.”  Mancheski, 39 A.D.3d at 501, 835 N.Y.S.2d at 597.

The press may also move to vacate the sealing order.  See Crain Commc'ns, Inc. v. Hughes, 74 N.Y.2d 626, 628, 539 N.E.2d 1099, 1100 (1989) (“While petitioner, a nonparty in the original proceeding, could not have brought a direct appeal, it could have sought and may still seek relief from the sealing order via a motion to vacate pursuant to CPLR 5015(a) in which all interested parties may be joined.”); see also Coopersmith v. Gold, 156 Misc. 2d 594, 600–01, 594 N.Y.S.2d 521, 526 (Sup. Ct. 1992) (“[T]he appropriate remedy at this time is a motion to vacate the sealing orders pursuant to CPLR 5015(a).”).

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D. Obtaining review of initial court decisions

There are various manners in which the court’s initial decision may be reviewed.

In civil matters, orders granting or denying motions to seal the record are immediately appealable by interlocutory appeal to the Appellate Division under CPLR 5701(a)(1).  See Appeal of Sealing Decisions, 3 N.Y.Prac., Com. Litig. in New York State Courts § 25:18 (4th ed.).

In a criminal case or an administrative matter, the press may appeal a court’s decision to close proceedings by bringing an Article 78 proceeding.  See, e.g., Associated Press v. Bell, 128 A.D. 2d 59 (1st Dep’t 1987), aff’d, 70 N.Y.2d 32 (1987); In re Oneonta Star Div. of Ottoway Newspapers, Inc. v. Mogavero, 77 A.D.2d 376 (3d Dep’t 1980); Herald Co. v. Weisenberg, 59 N.Y.2d 378, 381 (1983). Such a petition would be filed with the applicable appellate division court and may name the judge and the criminal defendant as the respondents.

Mandamus petitions are not favored. In Daily News, L.P. v. Wiley, 126 A.D.3d 511, 511–12, 6 N.Y.S.3d 19, 22 (1st Dep’t 2015), the First Department explained that “[a]lthough New York courts have implicitly recognized that a writ of mandamus may be available where a trial court has allegedly not followed required procedures in closing criminal proceedings . . . because the court will have balanced the competing interests before closing pretrial proceedings or sealing court records—both acts within its full discretion and jurisdiction—typically neither mandamus nor prohibition is available.”

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III. Access to criminal proceedings

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A. In general

The right of the public to access criminal proceedings is “implicit in the guarantees of the First Amendment.”  Richmond Newspapers v. Virginia, 448 U.S. 555, 580 (1980).The presumed “public character of trial at which guilt or innocence was decided” dates back to English common-law traditions, People v. Colon, 71 N.Y.2d 410, 521 N.E.2d 1075 (1988), and has since been enshrined not only in the U.S. Constitution’s First Amendment but also explicitly in the Sixth Amendment.  See U.S. Const. amend. VI (“In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial”) (emphasis added); Waller v. Georgia, 467 U.S. 39, 47 (1984).

In New York, the defendant’s right to a public trial is also protected by statute.  N.Y. Civ. Rights Law § 12 (“In all criminal prosecutions, the accused has a right to a speedy and public trial . . . .”).  New York courts have understood the right of access to extend beyond “the criminal trial itself . . . to other phases of a criminal action.”  Associated Press v. Bell, 70 N.Y.2d 32, 510 N.E.2d 313, 316 (1987) (granting press access to suppression hearings); see also People v. Burton, 189 A.D.2d 532, 535 (3d Dep’t 1993) (granting press access to motion papers).

The right is qualified, however.  When a defendant feels that his or her “right to a fair trial is threatened, the trial court must determine whether the situation . . . override[s] the qualified First Amendment right of access.”  Bell, 70 N.Y.2d at 38–39 (internal quotation marks omitted).  Restrictions must be narrowly tailored, and the test is whether “(1) there is a substantial probability that defendant’s right to a fair trial will be prejudiced by publicity that sealing would prevent, and (2) reasonable less restrictive alternatives to sealing cannot adequately protect defendant's fair trial rights.”  Burton, 189 A.D.2d at 535.  Bare conclusory assertions are insufficient to close the proceedings.  See, e.g., People v. Arthur, 178 Misc. 2d 419, 422, 682 N.Y.S.2d 811 (Sup. Ct. N.Y. Cty. 1998); People v. DeBeer, 3 Misc. 3d 515, 517, 774 N.Y.S.2d 314 (Ontario Cty. Ct. 2004).

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B. Pretrial proceedings

New York’s highest court has recognized a First Amendment right of access to suppression hearings, reasoning: “the First Amendment right of access is not limited to the criminal trial itself.”  Associated Press v. Bell, 70 N.Y.2d 32, 510 N.E.2d 313, 316 (1987) (“The many policy concerns favoring open proceedings . . . may pertain equally to other phases of a criminal action . . . .”). Of course, the right of access is not “absolute” and is counterbalanced by “a defendant's right to a fair trial and other such considerations that may “override the qualified First Amendment right of access.” Bell, 510 N.E.2d at 316 (citing Press-Enterprise II, 478 U.S. at 12–13); see also Johnson Newspaper Corp. v. Clary, 167 A.D.2d 968, 970, 562 N.Y.S.2d 307, 309–10 (4th Dep’t 1990) (refusing access to suppression hearing where “the nature of the case and the extensive publicity it [had] received in the relatively small community” indicated that it would be “inevitable” that “highly prejudicial evidence will be disclosed to the community from which the jury is to be drawn, even though there is a probability that the court will rule that the evidence will not be admissible at the trial”).

New York appellate courts have also recognized the right of access to other pre-trial hearings, including the procedural right to notice and an opportunity to be heard on the closure issue. See Capital Newspapers Div. of Hearst Corp. v. Lee, 139 A.D.2d 31, 34–35, 530 N.Y.S.2d 872, 875 (3d Dep’t 1988) (“[T]he procedural requirements for overriding the qualified constitutional right of access must be met before the court may order closure of a preliminary hearing.”).

Similarly, case law suggests that defendants’ competency hearings are also public.  Addressing the question of press access during defendant’s competency hearing, Leggett suggests that “[e]ven when a case has attracted public attention, public attendance at a pretrial competency hearing would not ordinarily generate the type of adverse pretrial publicity which could impair the defendant's right to a fair trial” and that “the defendant has the burden of establishing [such a risk].”  Leggett, 48 N.Y.2d at 440–41.  The court granted the press access to the transcripts of a previously non-public competency hearing.  Id.

Courts have reasoned that since “in most criminal cases, there are only pretrial proceedings”—“because either the charges are dismissed or the determination at the hearing substantially affects or destroys a party's chance of succeeding at trial”—it is especially important that the public be granted access prior to trial to ensure that the bulk of the work of the criminal court is not “done behind closed doors.”  Westchester Rockland Newspapers, Inc. v. Leggett, 48 N.Y.2d 430, 440, 399 N.E.2d 518, 523 (1979) (citing People v. Grant, 45 N.Y.2d 366, 379, 408 N.Y.S.2d 429, 436, 380 N.E.2d 257, 264 (1978); Matter of Forte v. Supreme Ct., 48 N.Y.2d 179, 422 N.Y.S.2d 26, 397 N.E.2d 717 (1979)).  “Moreover, preliminary hearings, like suppression hearings, are commonly followed by plea negotiations resulting in the disposition of many criminal cases without a trial. Thus, the preliminary hearing may be the only opportunity to satisfy the ‘community therapeutic value’ of open criminal proceedings.”  Capital Newspapers Div. of Hearst Corp. v. Lee, 139 A.D.2d 31, 34, 530 N.Y.S.2d 872, 875 (3d Dep’t 1988) (citing Press–Enterprise II,, 478 U.S. at 13; Gannett Co. v. De Pasquale, 443 U.S. 368, 397 n. 1 (1979)).

 

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C. Criminal trials

As established in this section’s introduction, generally speaking, the public has a qualified right of access to criminal trials, where access does not prejudice the defendant’s right to a fair trial.  See Associated Press v. Bell, 70 N.Y.2d 32, 37–38, 510 N.E.2d 313 (1987) (citing Richmond Newspapers v. Virginia, 448 U.S. 555, 580 (1980)).

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D. Post-trial proceedings

Given that the “the First Amendment right of access is not limited to the criminal trial itself,” courts have generally held that this right applies to post-trial proceedings as well.  Associated Press v. Bell, 70 N.Y.2d 32, 510 N.E.2d 313, 316 (1987).

For example, courts have held that parole revocation hearings should remain open to the public, “since those hearings deal with issues of crime and punishment which touch the lives of all citizens.”  Herald Co. v. Bd. of Parole of N.Y., 131 Misc. 2d 36, 45–46, 499 N.Y.S.2d 301, 308 (Sup. Ct. Onondaga Cty. 1985) (granting press access to parole revocation hearing), aff'd as modified, 125 A.D.2d 985, 510 N.Y.S.2d 382 (4th Dep’t 1986), aff'd, 125 A.D.2d 1015, 510 N.Y.S.2d 500 (4th Dep’t 1986).  In fact, the Herald court felt the policy reasons motivating press access prior to and during trial could be just as acute in post-trial proceedings:

Although respondents are correct in noting that parole revocation hearings are neither the equivalent of criminal trials nor post-trial proceedings as such, the cases dealing with the First Amendment right of access in the context of criminal trials are relevant to the present inquiry because much of the structural rationale underlying the decisions in those cases would apply . . . Despite the fact that there is no evidence that parole revocation hearings have historically been open to the public and press, access to the parole revocation process is “important in terms of that very process” (Richmond Newspapers, Inc., 448 U.S. at 589 [Brennan, J., concurring]). At a time when the merits of the parole process are being hotly debated, the “structural value of public access” (id. at 598) can scarcely be doubted. By opening parole revocation hearings to the public and press, the free, open, and informed discussion of the parole process would be furthered. The time has come for parole revocation hearings to be exposed to “the salutary scrutiny of the public and the press” (Press-Enterprise I, 464 U.S. at 521 [Marshall, J., concurring]).

Herald, 131 Misc. 2d at 45–46, 499 N.Y.S.2d at 308.

The public’s right of access is not overcome merely because the defendants are minors.  In Capital Newspapers Div. of Hearst Corp. v. Moynihan, the court upheld the right of the press to access sentencing proceedings, despite the fact that the defendants were minors.  71 N.Y.2d 263, 272, 519 N.E.2d 825, 830 (1988) (“We therefore conclude . . . the proceedings were presumptively open to the public, and that the trial courts acted improperly in closing them simply because they concerned youthful offenders.”).

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E. Appellate proceedings

New York courts do not appear to have addressed the right of access to appellate proceedings in criminal matters.

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IV. Access to criminal court records

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A. In general

There is generally a presumption that the public (and press) have a right to access criminal court records, provided the release of such records would not prejudice the defendant’s right to a fair trial or impartial jury.Given the constitutional and statutory authority for transparency of court proceedings, “flatly mandating denial of public access to court documents . . . would raise serious constitutional questions under the First Amendment.”  People v. Burton, 189 A.D.2d 532, 535‒36, 597 N.Y.S.2d 488, 491 (3d Dep’t 1993) (citing Globe Newspaper Co. v Superior Ct., 457 US 596, 608–10).

Movants may press defendants to demonstrate that each category of documents sought would otherwise prejudice the fairness of the proceedings or the disposition of the jury and require the court to make a specific finding with respect to each category.  See, e.g., People v. Burton, 189 A.D.2d 532, 535‒36, 597 N.Y.S.2d 488, 491 (3d Dep’t 1993).

[T]he applicants for sealing the records were required to demonstrate, and County Court was required to make specific findings supporting its conclusion, that (1) there is a substantial probability that defendant's right to a fair trial will be prejudiced by publicity that sealing would prevent, and (2) reasonable less restrictive alternatives to sealing cannot adequately protect defendant's fair trial rights.

Burton, 189 A.D.2d at 535‒36, 597 N.Y.S.2d at 491 (citing Press-Enterprise II, 478 U.S. at 12‒13; Washington Post v. Robinson, 935 F.2d 282, 289-290 (D.C. Cir. 1991); Bell, 70 NY2d at 39).

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B. Arrest records

A defendant’s arrest records should generally be accessible to the public.  See, e.g., Johnson Newspaper Corp. v. Stainkamp, 94 A.D.2d 825, 827, 463 N.Y.S.2d 122, 124 (3d Dep’t 1983) (granting access to “arrest records” including “traffic tickets issued and lists of violations of the Vehicle and Traffic Law”), aff'd as modified, 61 N.Y.2d 958, 463 N.E.2d 613 (1984).

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C. Dockets

Case dockets should be accessible to the public.  See, e.g., Werfel v. Fitzgerald, 23 A.D.2d 306, 313, 260 N.Y.S.2d 791, 793 (2d Dep’t 1965) (affirming the public’s right to inspect court dockets).

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By contrast, some courts have held that the warrant process—at least before the warrants have been executed—is outside the presumption of public access to criminal proceedings and court records because of the risk such transparency would pose to ongoing government investigations:

Since the warrant application process has historically not been open to the public and public access “would hinder, rather than facilitate the warrant process and the government's ability to conduct criminal investigations” we conclude that the warrant records sought are not subject to the qualified First Amendment right of access. Even assuming, arguendo, that there is a qualified constitutional right of access to warrant records, such a right would be outweighed if there is substantial probability that disclosure would compromise an ongoing investigation, a circumstance that would justify denial of access in this case.

Newsday, Inc. v. Morgenthau, 4 A.D.3d 162, 163, 771 N.Y.S.2d 639, 640 (2004) (internal citations omitted).

Courts have also denied press access to certain evidence where such access is premised on the court’s warrant and subpoena powers:

The limited 1st Amendment public right of access to criminal proceedings emanates from the long, historical tradition of openness of criminal trials and the major role which public access plays in the proper functioning of the criminal justice process, whereas proceedings to obtain corporeal evidence are creatures of recent judicial creation which derive from the court's power to issue search warrants, a traditionally nonpublic component of the criminal process.

Troy Publ’g. Co. v. Dwyer, 110 A.D.2d 327, 329–30, 494 N.Y.S.2d 537, 539 (3d Dep’t 1985); see also Matter of Death of Manners, 143 Misc. 2d 945, 949, 542 N.Y.S.2d 485, 488 (Suffolk Cty. Ct. 1989).

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E. Discovery materials

New York courts’ position on the right of access to discovery materials is less clear.  In People v. Burton, the Appellate Division of the Third Department held that discovery materials are subject to the First Amendment right of access only “[t]o the extent that the documents were submitted in connection with contested motions, the hearing of which were or would be accessible to the news media and the public.” 189 A.D.2d 532, 535, 597 N.Y.S.2d 488, 491 (3d Dep’t 1993).  The court recognized that other discovery materials would be subject to the common law right of access, which requires “those seeking to seal records to show that the public's right of access is outweighed by competing interests.” Id. “Specificity of proof and of judicial findings are required, and a trial court must also consider less drastic alternatives to sealing the records which would adequately serve the competing interests.” Id. As a result, courts have placed some limitations on press access to exhibits that have not yet been admitted into evidence at trial.  See Hearst Corp. v. Vogt, 62 A.D.2d 840, 841–42, 406 N.Y.S.2d 567, 569 (3d Dep’t 1978) (granting press access to review exhibits before their admission at trial, but denying request to copy them citing to protect the defendant’s fair trial rights).

Of course, documents presented only to the judge for in camera review are typically not subject to public access.  See Daily News L.P. v. Teresi, 265 A.D.2d 129, 133–34, 706 N.Y.S.2d 527, 530–31 (2000) (denying access to documents presented during in camera review because
“by definition, an in camera review or inspection is conducted ‘out of the hearing of the public’ and therefore, has not historically been open to the press and general public”) (citations and internal quotations omitted).  Public access would “frustrate the process by providing a defendant with immediate access to the very material that is subject to the disclosure dispute.”  Id.

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F. Pretrial motions and records

Like pretrial proceedings themselves, records from pretrial hearings are generally accessible to the public.  See, e.g., People v. Burton, 189 A.D.2d 532, 533, 597 N.Y.S.2d 488, 490 (3d Dep’t 1993) (reversing trial court’s decision to seal DNA records from pre-trial hearing).  Again, “the burden is on those seeking to seal records to show that the public's right of access is outweighed by competing interests . . . and a trial court must also consider less drastic alternatives to sealing the records which would adequately serve the competing interests.”  Id. (citing Baltimore Sun Co. v. Goetz, 886 F.2d 60, 65–66 (4th Cir. 1989); Matter of Knight Pub’g. Co., 743 F.2d 231, 235 (4th Cir. 1984)). Where the justification for the abridgement of the right of access is a criminal defendant's right to a fair trial, “sealing may only be ordered upon a showing of a reasonable likelihood that the publicity from disclosure of the records would render it impossible to obtain a fair and impartial jury.” Id. (citing United States v. Martin, 746 F.2d 964, 970 (3d Cir. 1984)).  By contrast, in Daily News L.P. v. Teresi, the court upheld the sealing of Brady and Sandoval motions and related materials. 265 A.D.2d 129, 134, 706 N.Y.S.2d 527, 531 (3d Dep’t 2000).

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G. Trial records

New York courts recognize a common law right to “inspect and copy judicial records, including physical evidence.” People v. McCray, 147 Misc. 2d 1103, 1104 (Sup. Ct. 1990). “When physical evidence is in a form that permits inspection and copying without any significant risk of impairing the integrity of the evidence or interfering with the orderly conduct of the trial, only the most compelling circumstances should prevent contemporaneous public access to it.” Id. at 1104–05 (citing In re Application of Nat’l Broad. Co., Inc., 635 F.2d 945, 952 (2d Cir. 1980)). In McCray, the press sought access to graphic photographs of the victim that had been shown at trial.  147 Misc. 3d at 1106.  The court permitted the press to examine the photographs, but did not allow them to be reproduced, citing concerns for the victim’s dignity and noting that the public had full access to information about the photographs and their contents by other means. Id.

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H. Post-trial records

Though, generally speaking, post-trial records are subject to the same presumptions of public access as post-trial proceedings themselves, there are key exceptions.  For example, though sentencing proceedings are generally open to the public, pre-sentence reports and memoranda are initially subject to a presumption of confidentiality by statute.  See N.Y. Crim. Proc. Law § 390.50 (confidentiality of pre-sentence reports and memoranda).  However, once those documents become part of the trial record, they are subject to the First Amendment presumptive right of access.  See, e.g., People v. Private Sanitation Indus. Ass'n of Nassau/Suffolk, Inc., 136 Misc. 2d 612, 617, 519 N.Y.S.2d 106, 110 (Suffolk Cty, Co. Ct. 1987) (“Once the information [in pre-sentence reports and memoranda] is used at trial or pre-sentence proceedings, it becomes subject to First Amendment rights.”).

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I. Appellate records

New York courts have not yet addressed the right of access to appellate records in criminal matters.

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J. Other criminal court records issues

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V. Access to civil proceedings

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A. In general

New York courts recognize thebroad constitutional proposition” arising from the First and Sixth Amendments,  “that the public, as well as the press, is generally entitled to have access to court proceedings.”  Danco Labs., Ltd. v. Chem. Works of Gedeon Richter, Ltd., 274 A.D.2d 1, 6, 711 N.Y.S.2d 419, 423 (N.Y. App. Div. 2000).  Although the right of access is not absolute, “any order denying access must be narrowly tailored to serve compelling objectives, such as a need for secrecy that outweighs the public's right to access.” Id. (citing Globe Newspaper Co. v Superior Ct., 457 U.S. 596, 609 (1982)).  Even where “‘the State’s legitimate concern for the well-being’ of an individual” justifies some degree of restriction on sensitive information, the right of access must be respected as much as possible.  Id. (citing Globe Newspaper Co., 457 U.S. at 609).

The right of access to proceedings and court records is “also firmly grounded in common law principles.”  Id. (citing Nixon v. Warner Communications, 435 U.S. 589, 597 (1978); Brown & Williamson Tobacco Co. v. FTC, 710 F.2d 1165, 1179 (6th Cir. 1983); Republic of the Philippines v. Westinghouse Elec. Corp., 949 F.2d 653, 659 (3d Cir. 1991)).  The existence of the correlating common law right to inspect and copy judicial records is “beyond dispute,” id. (citing In re Nat’l Broad. Co., 635 F.2d 945, 949 (2d Cir. 1980)), although “a different analysis applies when applying the right of access under” the common law and the constitution, id. 

The right of access, under either common law or the First Amendment, applies equally to both criminal and civil proceedings.  Id.  In New York, “statutory and common law . . . have long recognized that civil actions and proceedings should be open to the public in order to ensure that they are conducted efficiently, honestly and fairly.”  Id. (citing Matter of Brownstone, 191 A.D.2d 167, 168 (1st Div. 1993)).  “New York's presumption of public access is broad” and courts “have required that a ‘legitimate basis’ justify the sealing of court documents.”  Id. (citing Matter of Brownstone, 191 A.D.2d 167, 168 (1st Div. 1993)).

The right of access to court records has also been enshrined in statute.  Under New York’s Uniform Rules for Trial Courts (22 NYCRR) § 216.1(a):

(a) Except where otherwise provided by statute or rule, a court shall not enter an order in any action or proceeding sealing the court records, whether in whole or in part, except upon a written finding of good cause, which shall specify the grounds thereof. In determining whether good cause has been shown, the court shall consider the interests of the public as well as of the parties. Where it appears necessary or desirable, the court may prescribe appropriate notice and opportunity to be heard.

(b) For purposes of this rule, “court records” shall include all documents and records of any nature filed with the clerk in connection with the action. Documents obtained through disclosure and not filed with the clerk shall remain subject to protective orders as set forth in CPLR 3103(a).

 “The media's right of access and the public's right of access are on the same footing.”  Danco Labs., Ltd., 274 A.D.2d at 6, 711 N.Y.S.2d at 423.

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B. Pre-trial proceedings

Although New York courts have not yet specifically addressed the right of access to pre-trial proceedings in civil matters, they have recognized the broad constitutional proposition, arising from the First and Sixth Amendments, as applied to the States by the Fourteenth Amendment, that the public, as well as the press, is generally entitled to have access to court proceedings.”  Danco Labs., Ltd. v. Chem. Works of Gedeon Richter, Ltd., 274 A.D.2d 1, 6, 711 N.Y.S.2d 419, 423 (N.Y. App. Div. 2000).  Although the right of access is not absolute, “any order denying access must be narrowly tailored to serve compelling objectives, such as a need for secrecy that outweighs the public's right to access.” Id. (citing Globe Newspaper Co. v Superior Ct., 457 U.S. 596, 609 (1982)).

However, proceedings that are not public components of a civil trial—namely, depositions—are not subject to the presumptive right of access. See, e.g., Seattle Times Co. v. Rhinehart, 467 U.S. 20, 33 (1984); Seaman v. Wyckoff Heights Med. Ctr., Inc., 8 Misc. 3d 628, 632, 798 N.Y.S.2d 866, 870 (Sup. Ct. 2005).

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C. Trials

New York courts recognize that “the public, as well as the press, is generally entitled to have access to court proceedings” under both the First Amendment and common law rights of access.  Danco Labs., Ltd. v. Chem. Works of Gedeon Richter, Ltd., 274 A.D.2d 1, 6, 711 N.Y.S.2d 419, 423 (N.Y. App. Div. 2000).  Although the right of access is not absolute, “any order denying access must be narrowly tailored to serve compelling objectives, such as a need for secrecy that outweighs the public's right to access.” Id. (citing Globe Newspaper Co. v Superior Ct., 457 U.S. 596, 609 (1982)). New York has memorialized this right under Judiciary Law § 4:

The sittings of every court within this state shall be public, and every citizen may freely attend the same, except that in all proceedings and trials in cases for divorce, seduction, abortion, rape, assault with intent to commit rape, criminal sexual act, bastardy or filiation, the court may, in its discretion, exclude therefrom all persons who are not directly interested therein, excepting jurors, witnesses, and officers of the court.

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D. Post-trial proceedings

New York courts have not yet addressed the right of access to post-trial proceedings in civil matters.

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E. Appellate proceedings

New York courts have not yet addressed the right of access to appellate proceedings in civil matters.

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VI. Access to civil records

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A. In general

“[T]here is a broad presumption that the public is entitled to access to judicial proceedings and court records.”  Mosallem v. Berenson, 76 A.D.3d 345, 348–49, 905 N.Y.S.2d 575, 578 (N.Y. App. Div. 2010).  As codified in section 216.1(a) of the Uniform Rules for Trial Courts (22 NYCRR 216.1 (a)), “[e]xcept where otherwise provided by statute or rule, a court shall not enter an order in any action or proceeding sealing the court records, whether in whole or in part, except upon a written finding of good cause, which shall specify the grounds thereof. In determining whether good cause has been shown, the court shall consider the interests of the public as well as of the parties.”  Id. at 348.

“Although the rule does not further define ‘good cause,’ a standard that is ‘difficult to define in absolute terms,’ a sealing order should rest on a ‘sound basis or legitimate need to take judicial action,’ a showing properly burdening the party seeking to have a sealed record remain sealed.”  Danco Labs., Ltd. v. Chem. Works of Gedeon Richter, Ltd., 274 A.D.2d 1, 7–8, 711 N.Y.S.2d 419 (2000) (citing Coopersmith v. Gold, 156 Misc. 2d 594, 606 (N.Y. Sup. Ct. 1992)).

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B. Dockets

Under New York’s Uniform Justice Court Act § 2019-a, “[t]he records and dockets of the court except as otherwise provided by law shall be at reasonable times open for inspection to the public . . . .”  

Moreover, courts are reluctant to completely seal the entire record, including the docket.  In Landberg v National Enterprises, No. 0103104/2006, 2007 WL 2176343, at *4 (Sup. Ct. July 06, 2007), the court explained that where “a less drastic remedy than wholesale sealing of the record can achieve the purported goals of a party seeking sealing, i.e., the sealing of only certain exhibits or affidavits, then the Court should only grant such a partial scaling. If the parties seek renewal of this application in order to satisfy the criteria identified by the Court, they should also explain why partial sealing is inadequate.”

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C. Discovery materials

Documents obtained in discovery that are not filed with the court are generally not subject to a public right of access. N.Y. Ct. R. § 216.1(b).

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D. Pre-trial motions and records

“[T]he First Department rejects wholesale sealing of motion papers, even when both sides to the litigation request sealing.” L.K. Station Grp., LLC v. Quantek Media, LLC, 20 Misc. 3d 1142(A), 872 N.Y.S.2d 691, at *1 (N.Y. Sup. 2008).  “Instead, the presumption of the benefit of public access to court proceedings takes precedence, and sealing of court papers is permitted only to serve compelling objectives, such as when the need for secrecy outweighs the public's right to access, i.e. in the case of trade secrets and the like.  Thus, the Court is required to make its own inquiry to determine whether sealing is warranted.” Id. (citing Danco Labs., Ltd. v. Chem. Works of Gedeon Richter, Ltd., 274 A.D.2d 1, 6 (1st Dep’t 2000); Gryphon Domestic VI, LLC v. APP Int’l Fin. Co., 28 A.D.3d 322, 324 (1st Dep’t 2006)); see also Mosallem v. Berenson, 76 A.D.3d 345, 346, 905 N.Y.S.2d 575, 576 (1st Dep’t 2010) (reversing motion court’s decision to grant request to seal motion exhibits because “defendants-respondents failed to meet their burden to justify sealing the documents”).

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E. Trial records

“The right of access to proceedings as well as to court records is also firmly grounded in common-law principles, and the existence of the correlating common-law right to inspect and copy judicial records is ‘beyond dispute’.” Gryphon Domestic VI, LLC v. APP Int'l Fin. Co., B.V., 28 A.D.3d 322, 324–25, 814 N.Y.S.2d 110, 113 (1st Dep’t 2006) (citing Matter of Hofmann, 284 A.D.2d at 93–94, 727 N.Y.S.2d 84 (“[c]onfidentiality is clearly the exception, not the rule”); Danco Labs., Ltd. v. Chem. Works of Gedeon Richter, Ltd., 274 A.D.2d 1, 8, 711 N.Y.S.2d 419 (1st Dep’t 2000) (noting necessity for a “legitimate basis” to justify the sealing of court documents); Matter of Brownstone, 191 A.D.2d 167, 168, 594 N.Y.S.2d 31 (1st Div. 1993) (“statutory and common law have ‘long recognized’ that civil actions and proceedings should be open to the public to ensure that they are conducted efficiently, honestly, and fairly”)).

Courts have “authorized sealing only in strictly limited circumstances.”  Id. (citing Matter of Bernstein v. On–Line Software Intl., Inc., 232 A.D.2d 336, 337, 648 N.Y.S.2d 602 (1st Dep’t 1996) (protective order issued in arbitration proceedings to preserve the confidentiality of trade secrets); Matter of Twentieth Century Fox Film Corp., 190 A.D.2d 483, 486–487, 601 N.Y.S.2d 267 (1st Dep’t 1993) (finding parties had made sufficient showing to warrant sealing for purpose of preserving the privacy of an infant)).

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F. Settlement records

In certain context, settlement records are considered “judicial documents and court records[.]” Matter of Hayes, 59 Misc. 3d 543, 547–48, 72 N.Y.S.3d 358 (N.Y. Sur. 2018).  For example, where settlement papers “are required filings in connection with an application for judicial approval of the settlement of claims,” they are properly considered judicial documents.  Id.

However, one court permitted the temporary sealing of settlement terms where the parties had “clearly expressed that confidentiality was a necessary condition” to the settlement, even though the rest of the settlement was entered into the record with the court. In re E. 51st St. Crane Collapse Litig., 31 Misc. 3d 406, 415–16, 920 N.Y.S.2d 584, 591–92 (Sup. Ct. 2011) (emphasis original).  The court concluded that the interest in confidentiality outweighed the interest in public access, explaining that “disclosure of the settlement terms, sum and allocation at this juncture could derail” the  settlement, and “would certainly have a chilling effect on the willingness of defendants to participate in settlement negotiations in the remaining consolidated actions.” Id.

Where settlement records are properly considered court records, “the party seeking to seal court records has the burden to demonstrate compelling circumstances to justify restricting public access.”  Matter of Hayes, 59 Misc. 3d 543, 547–48, 72 N.Y.S.3d 358 (N.Y. Sur. Essex Cty. 2018).  And while “there is a strong public interest in encouraging the settlement of private disputes,” merely “conclusory claims of the need for confidentiality of settlement agreements are insufficient to seal a record.” Id.

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G. Post-trial records

New York courts have not yet addressed the right of access to post-trial records in civil matters.

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H. Appellate records

New York courts have not yet addressed the right of access to appellate records in civil matters.

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I. Other civil court records issues

In New York, matrimonial proceedings are given greater protection under New York’s Domestic Relations Law § 235 (emphasis added):

(1) An officer of the court with whom the proceedings in a matrimonial action or a written agreement of separation or an action or proceeding for custody, visitation or maintenance of a child are filed . . . shall not permit a copy of any of the pleadings, affidavits, findings of fact, conclusions of law, judgment of dissolution, written agreement of separation or memorandum thereof, or testimony, or any examination or perusal thereof, to be taken by any other person than a party, or the attorney or counsel of a party, except by order of the court.

(2) If the evidence on the trial of such an action or proceeding be such that public interest requires that the examination of the witnesses should not be public, the court or referee may exclude all persons from the room except the parties to the action and their counsel, and in such case may order the evidence, when filed with the clerk, sealed up, to be exhibited only to the parties to the action or proceeding or someone interested, on order of the court.

. . . .

(5) The limitations of subdivisions one, two and three of this section in relation to confidentiality shall cease to apply one hundred years after date of filing, and such records shall thereupon be public records available to public inspection.

See also Shiles v. News Syndicate Co., 27 N.Y.2d 9, 14, 261 N.E.2d 251, 253 (1970) (“Section 235 of the Domestic Relations Law, which prohibits the taking of copies, or even the inspection, of the records of matrimonial proceedings by any one other than the parties or their counsel, manifests a clear legislative design that those proceedings be kept secret and confidential.”).

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VII. Jury and grand jury access

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A. Access to voir dire

The right of public access to criminal proceedings encompasses the examination of jurors, known as voir dire. Press-Enterprise Co. v. Superior Ct., 464 U.S. 501 (1984). Nevertheless, “there are important caveats and exceptions to this constitutional right.”  People v. Roberts, 31 N.Y.3d 406, 425–26, 104 N.E.3d 701, 714–15 (2018) (rejecting defendant’s claim that his Sixth Amendment rights were violated when the trial court temporarily excluded a member of his family, due to overcrowding, while the jury was being seated, since defense counsel failed to object and the family member was not excluded from voir dire). “The ability of the public to observe questioning of [jurors] is important, both so that the judge, the lawyers and the prospective jurors will be conscious that they are observed, and so that the public can evaluate the fairness of the jury selection process.” Id. (citing Martin, 16 N.Y.3d at 613).

Courts have “limited discretion” to “close the courtroom to the public” where circumstances warrant.  Id. “Where the voir dire entails discussion of controversial or sensitive issues such that public access to the jurors' responses would significantly inhibit their candor, the presumption of access may be outweighed by fair trial considerations.” Daily News, L.P. v. Wiley, 126 A.D.3d 511, 514, 6 N.Y.S.3d 19, 23 (1st Dep’t 2015) (citing United States v. King, 140 F.3d 76, 82–84 (2d Cir. 1998)); see also People v. Arthur, 178 Misc. 2d 419, 425, 682 N.Y.S.2d 811, 816 (Sup. Ct. N.Y. Cty. 1998) (“Any measure short of sealing [jury selection documents], including the most probing voir dire followed by the clearest jury instruction, could not effectively eliminate the prejudicial impact on the jury of the publication of defendant's alleged uncharged bad acts in this case.”).

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B. Juror identities, questionnaires and other records

Despite the presumption of public access, courts have on occasion limited the public’s access to records underlying jury selection.  See, e.g., People v. Owens, 721 N.Y.S.2d 489, 721 N.Y.S.2d 489 (2001) (granting a request to make jurors’ names and addresses private, despite the rest of the trial being accessible by the public); Newsday, Inc. v. Sise, 71 N.Y.2d 146, 153, 518 N.E.2d 930, 933 (1987) (restricting access to jury selection records); see also People v. Arthur, 178 Misc. 2d 419, 425, 682 N.Y.S.2d 811, 816 (Sup. Ct. N.Y. Cty. 1998).

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C. Grand jury proceedings and records

Courts have held that “a presumption of confidentiality attaches to the record of Grand Jury proceedings.” People v. Fetcho, 91 N.Y.2d 765, 769, 676 N.Y.S.2d 106, 698 N.E.2d 935 (1998).  The court must consider “the competing interests involved, the public interest in disclosure against that in secrecy.”  People v. Di Napoli, 27 N.Y.2d 229, 234, 316 N.Y.S.2d 622, 265 N.E.2d 449, 451 (1970).

There are, however, exceptions where the policy reasons behind the confidentiality—to protect an ongoing investigation, a pending trial, or the identity of the accused, id.—are at their weakest. For example, courts have unsealed grand jury minutes where there are accusations that “go to the heart of the grand jury process and county government and disclosure to the public in order to maintain the integrity of the grand jury process and county government creates a compelling interest for disclosure.”  People v. Cipolla, 184 Misc. 2d 880, 882, 711 N.Y.S.2d 303, 305 (Rensselaer Cty. Ct. 2000); see also Aiani v. Donovan, 98 A.D.3d 972, 950 N.Y.S.2d 745, 748 (2d Dep’t 2012) (finding that a “discretionary balancing of the public interest in disclosure against the public interest in secrecy of the grand jury favor[ed] disclosure” where the petitioner needed the information to recover in his civil claims).

But petitions that fail to identify a compelling and particularized need for access have been denied.  See, e.g., Williams v. City of Rochester, 151 A.D.3d 1698, 1698, 55 N.Y.S.3d 843, 844 (4th Dep’t); In re NYP Holdings, Inc., 196 Misc. 2d 708, 766 N.Y.S.2d 477 (Sup. Ct. Kings Cty. 2003); In re Carey, 68 A.D.2d 220, 416 N.Y.S.2d 904 (4th Dep’t 1979); Matter of Dist. Attorney of Suffolk Cty., 86 A.D.2d 294, 300, 449 N.Y.S.2d 1004, 1008 (2d Dep’t 1982) (finding that disclosure of grand jury materials was not warranted).

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D. Interviewing jurors

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VIII. Proceedings involving minors

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A. Delinquency

Delinquency proceedings in New York are administered by Family Courts, which apply Section 205.4(a) of the Uniform Rules for Trial Courts in determining whether the public and the press should be excluded from a proceeding. These factors include whether:

1. The person is causing or is likely to cause a disruption to the proceedings;

2. The presence of a person is objected to by one of the parties;

3. The orderly and sound administration of justice, including the nature of the proceeding and the privacy of the parties, requires that all observers be excluded from the courtroom.

22 NYCRR § 205.4(a).

“Judicial discretion must be exercised against a strong presumption of openness. . . . Section 205.4(a) provides a set of guidelines to be utilized by the presiding Judge in making a determination, but the existence of any one factor does not presumptively mandate closure.” Matter of Application for News Media Coverage in the Matter of M.S., 173 Misc. 2d 656, 659, 662 N.Y.S.2d 207, 209 (N.Y. Fam. Ct. 1997).

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B. Dependency

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C. Other proceedings involving minors

In Capital Newspapers v. Moynihan, 519 N.E.2d 825 (N.Y. 1988), New York’s highest court held that sentencing proceedings in felony cases in which the defendant has been granted youthful offender status are presumptively open to the press and public.

In In re Adoption of Doe, the Surrogate’s Court considered whether the courtroom should be closed and the record sealed in a proceeding involving argument on the legal effect of apparently conflicting adoption certificates from Cambodia and the United States. 16 Misc.3d 714, 715–16 (N.Y. Sur. 2007). Applying the First Amendment right of access, the court ruled that the courtroom would not be closed and allowed only portions of the transcript discussing the details of the specific adoption in question to be sealed. Id. at 731.

Where proceedings are closed due to the involvement of minors, courts may substitute access to redacted transcripts.  For example, in Merola ex rel. People v. Bell, 393 N.E.2d 1038 (N.Y. 1979), the court upheld the closure of a suppression hearing in the prosecution of a thirteen-year-old defendant charged with murder, but granted access to redacted transcripts of the hearing.

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D. Prohibitions on photographing or identifying juveniles

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E. Minor testimony in non-juvenile courts

In Herald Co, Inc. v. Mariani, 490 N.E.2d 539 (N.Y. 1985), the court held that a request for access to a juvenile rape victim’s preliminary hearing testimony must be addressed by Family Court, which could apply a traditional veil of confidentiality to juvenile proceedings.

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IX. Special proceedings

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A. Tribal Courts in the jurisdiction

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B. Probate

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C. Competency and commitment proceedings

In Westchester Rockland Newspapers, Inc. v. Leggett, 48 N.Y.2d 430, 440–41, 423 N.Y.S.2d 630, 636, 399 N.E.2d 518, 523–24 (1979), the court granted access to transcripts of a pre-trial competency hearing.

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D. Attorney and judicial discipline

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E. Immigration proceedings

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F. Other proceedings

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X. Restrictions on participants in litigation

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A. Media standing to challenge third-party gag orders

Members of the media have standing to challenge gag orders.  In New York Times Co. v. Rothwax, 143 A.D.2d 592, 533 N.Y.S.2d 73, 74 (1st Dep’t 1988), NBC and others brought an action to prohibit enforcement of an oral ruling in a criminal action which directed all counsel in the action to refrain from communicating with members of the news media “on matters related to the case.”  The court held that “the restrictive order in question is constitutionally impermissible and, accordingly, the petition is granted to the extent of prohibiting enforcement thereof . . . . Absent this requisite showing of necessity for prior restraints, respondent's imposition of a gag order upon the attorneys and other participants in the trial is constitutionally impermissible.”  Id. 

Similarly, in NBC v. Cooperman, 116 A.D.2d 287, 289, 501 N.Y.S.2d 405, 406 (2d Dep’t 1986), the court explained that “NBC clearly has standing to question the validity of the respondent's directive” prohibiting counsel from communicating with the news media on any matters related to the pending trial.” The court explained that “a trial court must be mindful of the fact that prior restraints upon the rights of free speech and publication by the media bear a heavy presumption of constitutional invalidity which may only be overcome upon a showing of a ‘clear and present danger’ of a serious threat to the administration of justice.”  Id. (citing Bridges v. California, 314 U.S. 252, 263 (1941); Matter of Oliver v. Postel, 30 N.Y.2d 171, 180, 331 N.Y.S.2d 407, 282 N.E.2d 306 (1972)).

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B. Gag orders on the press

Courts have recognized that “any direct limitations on the freedom traditionally exercised by the news media” is not “a permissible restraint.”  N.Y. Times Co. v. Starkey, 51 A.D.2d 60, 67, 380 N.Y.S.2d 239, 246 (1976) (concurrence) (stressing that the court was “dealing with an attempt to impose a direct ‘gag’ on the press and not with the issuance of a restrictive order directed against court personnel, or attorneys, or others directly involved in the judicial process”) (citing Sheppard v. Maxwell, 384 U.S. 333, 350 (1966)).

Even an indirect exclusionary order cannot be sustained where it “is entered merely as a substitute for a ‘gag order’ which would otherwise place a direct restraint on what the press can publish, [as] such exclusionary order infringes upon protected First Amendment rights.”  Gannett Co. v. DePasquale, 55 A.D.2d 107, 111, 389 N.Y.S.2d 719, 722 (1976) (“An exclusionary order is merely a substitute for a direct prior restraint where, as here, the sole purpose behind the order is to prevent the publication of what transpires in the courtroom during a pretrial hearing.”), modified sub nom. Gannett Co. v. De Pasquale, 43 N.Y.2d 370, 372 N.E.2d 544 (1977), aff'd sub nom. Gannett Co. v. DePasquale, 443 U.S. 368 (1979).

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C. Gag orders on participants

In criminal matters, “extrajudicial statements of attorneys may be subject to prior restraint by a trial court upon a demonstration that such statements present a ‘reasonable likelihood’ of a serious threat to a defendant's right to a fair trial.” Fischetti v. Scherer, 44 A.D.3d 89, 93, 840 N.Y.S.2d 575 (2007). “An attorney acting as counsel in a legal matter may be prohibited from making extrajudicial statements which are likely to materially prejudice the case.  In such instances, the attorney's First Amendment rights are overcome by concern for the parties' fair trial rights.”  Id.  The party seeking to impose such a prior restraint, however, bears a heavy burden.  People v. Fioretti, 135 Misc. 2d 541, 542, 516 N.Y.S.2d 422, 422 (Sup. Ct. 1987) (emphasizing “heavy burden” of party seeking to enjoin opposing counsel from making public statements and the “strong presumption” against the “Constitutional validity” of such a prior restraint); see also Jane Doe No. 1 v. Zeder, 5 Misc. 3d 574, 782 N.Y.S.2d 349 (Sup. Ct., Onondaga Cnty., 2004) (rejecting defendant’s request for “gag order restraining the plaintiff and her counsel . . . from talking about, or distributing materials or documents concerning this case with any members of the media”).

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D. Interviewing judges

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XI. Other issues

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A. Interests often cited in opposing a presumption of access

A New York appellate court has held that “genuine” trade secrets could be subject to protection from public disclosure, as could the “identities of persons legitimately exposed to violence.” Danco Labs., Ltd. v. Chem. Works of Gedeon Richter, Ltd., 274 A.D.2d 1, 8, 711 N.Y.S.2d 419, 425 (N.Y. App. Div. 2000).

Additionally, New York Civil Rights Law § 50-b provides that court files identifying “any victim of a sex offense, as defined in article one hundred thirty or section 255.25 of the penal law, or of an offense involving the alleged transmission of the human immunodeficiency virus” shall not be disclosed. Doe v. N.Y. Univ., 6 Misc. 3d 866, 877, 786 N.Y.S.2d 892, 901-02 (N.Y. Sup. Ct. 2004).

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B. Cameras and other technology in the courtroom

New York’s highest court has held:

Civil Rights Law § 52 does not prevent the press, including television journalists, from attending trials and reporting on the proceedings. What they cannot do under the statute is bring cameras into the courtroom. This is not a restriction on the openness of court proceedings but rather on what means can be used in order to gather news. The media's access is thus guaranteed. But it does not extend to a right to televise those proceedings.

Courtroom Television Network LLC v. State of New York, 5 N.Y.3d 222, 229, 833 N.E.2d 1197, 1200 (2005) (citing Westmoreland v. Columbia Broad. Sys., Inc., 752 F.2d 16, 23 (2d Cir.1984)).

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C. Tips for covering courts in the jurisdiction

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