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North Carolina

Open Courts Compendium

Author

C. Amanda Martin, amartin@smvt.com
Michael J. Tadych, mike@smvt.com
Stevens Martin Vaughn & Tadych, PLLC
The Historic Pilot Mill
1101 Haynes Street, Suite 100
Raleigh, North Carolina 27604
(919) 582-2300; (866) 593-7695

Last updated June 2018

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I. Introduction: Access rights in the jurisdiction

A. The roots of access rights

In a civil right of access context, the North Carolina Supreme Court has applied by analogy U.S. Supreme Court precedent on the First Amendment presumption of access in criminal cases—i.e., a heightened standard of scrutiny in favor of disclosure absent a compelling public interest. See Virmani v. Presbyterian Health Servs. Corp., 350 N.C. 449, 481-82 (1999).

The North Carolina Constitution confers a qualified right of access to civil court proceedings and records. See N.C. Const. Art. I, §18; Virmani, 350 N.C. at 476-77:

[T]he open courts provision of Article I, Section 18 of the North Carolina Constitution guarantees a qualified right on the part of the public to attend civil court proceedings . . . [which is] subject to reasonable limitations imposed in the interest of the fair administration of justice or for other compelling public purposes. Thus, although the public has a qualified right of access to civil court proceedings and records, the trial court may limit this right when there is a compelling countervailing public interest and closure of the court proceedings or sealing of documents is required to protect such countervailing public interests. In performing this analysis, the trial court must consider alternatives to closure. Unless such an overriding interest exists, the civil court proceedings and records will be open to the public. Where the trial court closes proceedings or seals records and documents, it must make findings of fact which are specific enough to allow appellate review to determine whether the proceedings or records were required to be open to the public by virtue of the constitutional presumption of access. (emphasis in original) (internal citations omitted).

The North Carolina Court of Appeals has said that the "open courts provision" of the state constitution "creates a strong presumption that civil court proceedings be kept open to the public and that ‘the occasion for closing presumptively open proceedings and sealing court records should be exceedingly rare.’” DTH Publ'g Corp. v. University of North Carolina at Chapel Hill, 496 S.E.2d 8, 13 (1998) (internal citation omitted).

The North Carolina Supreme Court has likewise suggested that the state constitution confers a qualified right of access in criminal cases. See State v. Lemons, 348 N.C. 335, 349-50 (1998) (citing, inter aliaGlobe Newspaper Co. v. Superior Ct. for Norfolk County, 457 U.S. 596, 606 (1982); Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 581 n.18 (1980)), vac'd on other grounds by Lemons v. North Carolina, 527 U.S. 1018 (1999).

The text of the North Carolina Constitution is available at http://www.ncga.state.nc.us/legislation/constitution/ncconstitution.html.

In Virmani, the North Carolina Supreme Court considered a newspaper's argument for a qualified common law right of access to public records and documents. The Court suggested that U.S. Supreme Court jurisprudence on the common law right of access did not recognize a federal common law right of access to state courts any broader than the right of access already conferred by the First Amendment of the U.S. Constitution. See 350 N.C. at 470-71.

Under North Carolina common law, "the decision to grant or deny access is 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." In re Investigation into Death of Cooper, 683 S.E.2d 418, 425 (N.C. App. 2009) (internal quotations admitted). Further, the North Carolina General Assembly may supersede the common law right of access by statute. See id.; and see, e.g., N.C.G.S. 132.1 et seq.

North Carolina law does recognize a common law right to inspect public records, see News & Observer Publ'g Co. v. State ex rel. Starling, 312 N.C. 276, 280 (1984), but the right as to certain documents is limited by statute.

The public's right of access is set forth in N.C.G.S. 7A-109(a), "which specifically grants the public the right to inspect court records in civil and criminal proceedings." Virmani v. Presbyterian Health Servs. Corp., 350 N.C. 449, 463 (1999). See also N.C.G.S. 7A-190; 7A-191.

Access to public records is generally governed by Public Records Act, N.C.G.S. 132, which courts construe liberally in favor of access. Without a “clear statutory exemption or exception, documents falling within the definition of ‘public records’ in the Public Records Law must be made available for public inspection.” News & Observer Publ’g Co. v. Poole, 330 N.C. 465, 486 (1992). The definition of “public records” is codified at N.C.G.S. §132-1. The Public Records Law itself enumerates some exceptions, and other statutes may exempt certain records as well (See, e.g., N.C.G.S. §131E-95, which specifically protects medical review committee records from discovery or introduction into evidence in certain civil proceedings).

The North Carolina Supreme Court has held that “[n]otwithstanding the broad scope of the public records statute and the specific grant of authority in N.C.G.S. § 7A-109(a), our trial courts always retain the necessary inherent power granted them by Article IV, Section 1 of the North Carolina Constitution to control their proceedings and records in order in ensure that each side has a fair and impartial trial. … Thus, even though court records may generally be public records under N.C.G.S. § 132-1, a trial court may, in the proper circumstances, shield portions of court proceedings and records from the public.” Virmani, 350 N.C. at 463 (internal citations omitted). A trial court may exercise this power when “its use is required in the interest of the proper and fair administration of justice or where, for reasons of public policy, the openness ordinarily required of our government will be more harmful than beneficial.” Id.

N.C.G.S. 15A-1034(a) provides that "[t]he presiding judge may impose reasonable limitations on access to the courtroom when necessary to ensure the orderliness of courtroom proceedings or the safety of persons present."  To search the North Carolina General Statutes, visit http://www.ncga.state.nc.us/gascripts/Statutes/Statutes.asp.

For an overview of North Carolina’s Public Records Act and exceptions thereto, see the Open Government Guide chapter for North Carolina, available at https://www.rcfp.org/open-government-guide/north-carolina/.

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B. Overcoming a presumption of openness

To overcome the constitutional presumption of access, the party seeking closure must "demonstrat[e] that the public's right to open proceedings [is] outweighed by a countervailing public interest." France v. France, 2011 WL 294051at *6 (N.C. App. 2011). While the trial courts possess the inherent power to make this determination, "[i]n performing the analysis, the trial court must consider alternatives to closure. Unless such an overriding interest exists, the civil court proceedings and records will be open to the public. Where the trial court closes proceedings or seals records and documents, it must make findings of fact which are specific enough to allow appellate review to determine whether the proceedings or records were required to be open to the public by virtue of the constitutional presumption of access." Virmani v. Presbyterian Health Servs. Corp., 350 N.C. 449, 476-77 (1999).

The common law presumption of access may be "modified or repealed by the General Assembly," Gwathmey v. State, 342 N.C. 287, 296 (1995) and by the state supreme court.

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C. Procedural prerequisites to closure

[A]lthough the public has a qualified [constitutional] right of access to civil court proceedings and records, the trial court may limit this right when there is a compelling countervailing public interest and closure of the court proceedings or sealing of documents is required to protect such countervailing public interest. In performing this analysis, the trial court must consider alternatives to closure. Unless such an overriding interest exists, the civil court proceedings and records will be open to the public. Where the trial court closes proceedings or seals records and documents, it must make findings of fact which are specific enough to allow appellate review to determine whether the proceedings or records were required to be open to the public by virtue of the constitutional presumption of access.

Virmani v. Presbyterian Health Servs. Corp., 350 N.C. 449, 476-77 (1999) (finding public's interest in access to medical peer review documents and related proceedings was outweighed by compelling public interest in "protecting the confidentiality of [such] records in order to foster effective, frank and uninhibited exchange among medical peer review committee members." Id. at 478.).

The U.S. Court of Appeals for the Fourth Circuit (which has jurisdiction over North Carolina) has held that in considering a request to seal certain judicial records or documents, a district court must first consider the source (i.e., constitutional or common law), if any, of a public right of access. The purpose of this determination is to enable the court to weigh the competing interests under the appropriate test. However, regardless of whether the right of access flows from the common law or the First Amendment, the Fourth Circuit has said that the court must comply with the following procedure: "[I]t must give the public notice of the request to seal and a reasonable opportunity to challenge the request; it must consider less drastic alternatives to sealing; and if it decides to seal it must state the reasons (and specific supporting findings) for its decision and the reasons for rejecting alternatives to sealing. Adherence to this procedure serves to ensure that the decision to seal materials will not be made lightly and that it will be subject to meaningful appellate review." Virginia Dept. of State Police, 386 F.3d 567, 576 (4th Cir. 2004) (internal quotations omitted).

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

Under the N.C. Public Records Act, "[a]ny person who is denied access to public records for purposes of inspection and examination, or who is denied copies of public records, may apply to the appropriate division of the General Court of Justice for an order compelling disclosure or copying, and the court shall have jurisdiction to issue such orders if the person has complied with G.S. 7A-38.3E. Actions brought pursuant to this section shall be set down for immediate hearing, and subsequent proceedings in such actions shall be accorded priority by the trial and appellate courts." N.C.G.S. 132-9.

North Carolina General Statute §1-72.1 sets forth the procedure to assert the right of access. N.C.G.S. § 1-72.1(a) provides in part, “Any person asserting a right of access to a civil judicial proceeding or to a judicial record in that proceeding may file a motion in the proceeding for the limited purpose of determining the person's right of access.” Such a motion does not amount to a request to intervene, and a movant does not become a party to the action solely by filing a motion under this statute.

In the alternative, pursuant to North Carolina Rule of Civil Procedure Rule 24, a third party may file a motion to intervene in order to assert a right of access.

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A. Media standing to challenge closure

Under the N.C. Public Records Act, "[a]ny person who is denied access to public records for purposes of inspection and examination, or who is denied copies of public records, may apply to the appropriate division of the General Court of Justice for an order compelling disclosure or copying, and the court shall have jurisdiction to issue such orders if the person has complied with G.S. 7A-38.3E [relating to voluntary and mandatory mediation of public records disputes]. Actions brought pursuant to this section shall be set down for immediate hearing, and subsequent proceedings in such actions shall be accorded priority by the trial and appellate courts." N.C.G.S. 132-9(a).

In Goldsmith v. Henderson County Bd. of Pub. Ed., 2003 WL 23341192 (N.C. Super. 2003), the court held that a third-party newspaper had standing to bring a right of access motion, motion to unseal and motion to require filing by virtue of N.C.G.S. 1-72.1, explaining that "[b]y its terms, this statute gives any member of the public standing to move for access to documents, testimony, or other information in a judicial proceeding. Here, [the newspaper] is well-positioned to advocate for the interests of the public in gaining access to the documents, testimony, or other information sought in this matter. This case involves issues of significant public importance to the citizens of Henderson County." Id. at *3.

In Virmani v. Presbyterian Health Servs. Corp., 350 N.C. 449 (1999), a third-party newspaper moved to intervene in order to challenge certain trial court rulings on closure of proceedings and sealing of documents. The North Carolina Supreme Court rejected the newspaper’s argument that it was entitled to intervention as a matter of right. The Court noted that intervention in North Carolina is governed by statute (N.C.G.S. §1A-1, Rule 24), which specifies two circumstances in which a party may intervene as a matter of right. If there is no statute granting a party an unconditional right to intervene, then North Carolina laws require that the party seeking intervention have a direct, substantial interest in the litigation that will not be adequately protected unless the third party is permitted to intervene. See Virmani, 350 N.C. at 458-59.

In Virmani, the Court found the newspaper’s interest in the litigation was indirect and contingent—an interest it called “common to all persons—in seeing matters relating to all civil actions made public.” Virmani at 459. In that case, the newspaper’s claim for permissive intervention was at the trial court’s discretion. The Court did note that the newspaper’s argument for intervention “would [have been] more compelling if it could not raise the substantive issue of whether the court proceedings and records must be made public by any reasonable manner other than intervention as a party.” Id. at 461 (emphasis added). The trial court’s denial of the motion to intervene did not preclude the newspaper from “presenting full briefs and argument and obtaining a timely ruling on the questions of its right of access to the proceedings and documents [at issue].” Id. Finally, the Court listed alternative means of raising the right of access, including by extraordinary writ practice, a declaratory judgment action, or equitable remedies. Id. The Court indicated a preference for these approaches, writing that “these represent the legal methods by which questions of public access to courts and their records are most frequently and successfully raised.” Id.

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B. Procedure for requesting access in criminal cases

C. Procedure for requesting access in civil matters

Under N.C.G.S. 1-72.1(a), "[a]ny person asserting a right of access to a civil judicial proceeding or to a judicial record in that proceeding may file a motion in the proceeding for the limited purpose of determining the person's right of access. The motion shall not constitute a request to intervene . . . The movant shall not be considered a party to the action solely by virtue of filing a motion under this section or participating in proceedings on the motion. An order of the court granting a motion for access made pursuant to this section shall not make the movant a party to the action for any purpose." The court must issue a written ruling on the motion after considering "such facts, legal authority and argument as the movant and any other party to the action desire to present." N.C.G.S. 1-72.1(c). The court must state the reasons for its ruling with sufficient particularity to permit appellate review. Further, once the court has ruled on the motion, the movant or any other party to the action may initiate an immediate interlocutory appeal. N.C.G.S. 1-72.1(e).

A party seeking access may also file a motion to intervene. Intervention is governed by N.C.G.S. 1A-1, Rule 24. To intervene as a matter of right under Rule 24(a), a third-party applicant must be unconditionally entitled to intervene by some other statute, or must have a direct and substantial interest in the litigation that cannot be adequately represented by the existing parties. Thus, where the N.C. Supreme Court found a newspaper-movant had only an "'indirect' or 'contingent' interest--an interest common to all persons--in seeing matters relating to all civil actions made public," it was not entitled to intervene as a matter of right. Virmani v. Presbyterian Health Servs. Corp., 350 N.C. 449, 459 (1999). A media entity may seek permissive intervention where a statute confers a conditional right to intervene, or where its "claim . . . and the main action have a question of law or fact in common." N.C.G.S. 1A-1, Rule 24(b). However, beyond these criteria, "permissive intervention by a private party . . . rests within the sound discretion of the trial court." Virmani, 350 N.C. at 460. The N.C. Supreme Court has said that a trial court is not required to record specific findings of fact and conclusions of law in denying a motion to intervene per se, which is distinguishable from the substantive merits an intervenor hopes to raise. Virmani, 350 N.C. at 461. A denial of intervention does not prevent a party from obtaining a ruling on its right of access. Id. ln Virmani, the Court noted that even if a newspaper's motion to intervened was denied, it remained free to raise questions of access without intervening "by (1) extraordinary writ of practice, (2) a declaratory judgment action, or (3) resort to established remedies in equity; in fact, these represent the legal methods by which questions of public access to courts and their records are most frequently and successfully raised." Id.

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D. Obtaining review of initial court decisions

As in other states, North Carolina precedent indicates that access issues should be resolved expediently. See Harris v. Matthews, 361 N.C. 265, 270 (2007) ("[W]hen First Amendment rights are threatened or impaired by an interlocutory order, immediate appeal is appropriate.") (citing Elrod v. Burns, 427 U.S. 347, 373 (1976)); Sherrill v. Amerada Hess Corp., 130 N.C. App. 711, 719 (1998) (interlocutory orders touching First Amendment rights affect a substantial right, such that immediate appeal is proper).

N.C.G.S. 1-72.1 provides the procedure for asserting a right of access to civil judicial records and proceedings. Under the statute, a party asserting a right of access may file a motion in the proceeding for the sole purpose of determining that party's access rights. Under N.C.G.S. 1-72.1(e), the court's ruling on a motion under this statute is subject to:

[A]n immediate interlocutory appeal by the movant or any party to the proceeding. Notice of appeal must be given in writing, filed with the court, and served on all parties no later than 10 days after entry of the court's ruling. If notice of appeal is timely given and given before further proceedings are held in the court that might be affected by appellate review of the matter, the court, on its own motion or on the motion of the movant or any party, shall consider whether to stay any proceedings that could be affected by appellate review of the court's ruling on the motion. If notice of appeal is timely given but is given only after further proceedings in the trial court that could be affected by appellate review of the ruling on a motion made pursuant to this section, or if a request for stay of proceedings is made and is denied, then the sole relief that shall be available on any appeal in the event the appellate court determines that the ruling of the trial court was erroneous shall be reversal of the trial court's ruling on the motion and remand for rehearing or retrial. On appeal, the court may determine that a ruling of the trial court sealing a document or restricting access to proceedings or refusing to unseal documents or open proceedings was erroneously stated, but it may not retroactively order the unsealing of documents or the opening of testimony that was sealed or closed by the trial court's order.

N.C.G.S. 7A-31 provides for discretionary review by the N.C. Supreme Court, on motion of any party to the proceedings or on the court's own motion. (Note that a motion asserting a right of access made under N.C.G.S. 1-72.1 does not, in and of itself, render the movant a party to the proceeding.) The Supreme Court may certify the cause for its review before or after determination by the Court of Appeals if it finds that "[t]he subject matter of the appeal has significant interest," or "[t]he cause involves legal principles of major significance to the jurisprudence of the State." N.C.G.S. 7A-31(b)-(c).

See also

North Carolina courts appear to follow U.S. Supreme Court precedent on the public's right of access to judicial proceedings in criminal cases. See,e.g., DTH Publ'g Corp. v. University of North Carolina at Chapel Hill, 496 S.E.2d 8, 16 (1998) (invoking the "tests of experience and logic" applied by the U.S. Supreme Court in Press-Enterprise Co. v. Superior Court, 478 U.S. 1, 8-13 (1986) (Press-Enterprise II)); see also In re Nowell, 293 N.C. 235, 250 (1077) (noting “the basic principle that the disposition of any criminal case should be made in open court . . . The gravamen of this matter is that the State was not allowed its day in court and that the public was excluded. . . . [T]he district attorney was entitled to be heard and the public was entitled to hear the judgment rendered."); In re Edens, 290 N.C. 299, 306 (1976) (“The trial and disposition of criminal cases is the public's business and ought to be conducted in public in open court.”).

N.C.G.S. 7A-27 (appeals of right from the trial courts); N.C.G.S. 7A-30 (appeals of right from certain decisions of the Court of Appeals).

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III. Access to criminal proceedings

A. In general

North Carolina courts appear to follow U.S. Supreme Court precedent on the public's right of access to judicial proceedings in criminal cases. Seee.g., DTH Publ'g Corp. v. University of North Carolina at Chapel Hill, 496 S.E.2d 8, 16 (1998) (invoking the "tests of experience and logic" applied by the U.S. Supreme Court in Press-Enterprise Co. v. Superior Court, 478 U.S. 1, 8-13 (1986) (Press-Enterprise II)); see also In re Nowell, 293 N.C. 235, 250 (1077) (noting “the basic principle that the disposition of any criminal case should be made in open court . . . The gravamen of this matter is that the State was not allowed its day in court and that the public was excluded. . . . [T]he district attorney was entitled to be heard and the public was entitled to hear the judgment rendered."); In re Edens, 290 N.C. 299, 306 (1976) (“The trial and disposition of criminal cases is the public's business and ought to be conducted in public in open court.”).

While the state recognizes a presumptive right of access, the right is not absolute. See State v. Lemons, 348 N.C. 335, 349-50 (1998), vac'd on other grounds by Lemons v. North Carolina, 527 U.S. 1018 (1999). Instead, it "is subject to reasonable limitations [by the trial court] imposed in the interest of the fair administration of justice or for other compelling public purposes." Virmani v. Presbyterian Health Servs. Corp., 350 N.C. 449, 476 (1999). Under the North Carolina Criminal Procedure Act, for example, "[t]he presiding judge may impose reasonable limitations on access to the courtroom when necessary to ensure the orderliness of courtroom proceedings or the safety of persons present." N.C.G.S. 15A-1034(a). See also State v. Burney, 502 N.C. 529, 533-38 (1981) (trial court did not err when it restricted courtroom access to members of certain identifiable groups, for only a short portion of the overall proceeding, during the testimony of a seven-year-old rape victim).

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B. Pretrial proceedings

In State v. Demery, 0094 WL 16067890 (N.C. Super. 1994), a criminal defendant asked the court to exclude the public and press from all pretrial hearings and to temporarily seal all records and transcripts. In denying the request in favor of media-intervenors, the court cited Waller v. Georgia, 467 U.S. 39 (1984) (holding that the presumptive right of access to all phases of criminal proceedings may be overcome only if the party seeking closure demonstrates an overriding interest that will be prejudiced if closure is not granted), and said that "if a trial court grants a closure order, it must enter a narrowly tailored written order containing specific findings based on particularized evidence demonstrating why the court must be closed during each separate proceeding or hearing as to which closure is sought." Demery at 1.

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C. Criminal trials

North Carolina courts appear to follow U.S. Supreme Court precedent on the public’s right of access to judicial proceedings in criminal cases: while the state recognizes a presumptive right of access, the right is not absolute. See State v. Lemons, 348 N.C. 335, 349-50 (1998), vac’d on other grounds by Lemons v. North Carolina, 527 U.S. 1018 (1999). Instead, it “is subject to reasonable limitations [by the trial court] imposed in the interest of the fair administration of justice or for other compelling public purposes.” Virmani v. Presbyterian Health Servs. Corp., 350 N.C. 449, 476 (1999). Under the North Carolina Criminal Procedure Act, for example, “[t]he presiding judge may impose reasonable limitations on access to the courtroom when necessary to ensure the orderliness of courtroom proceedings or the safety of persons present.” N.C.G.S. 15A-1034(a). See also State v. Burney, 502 N.C. 529, 533-38 (1981) (trial court did not err when it restricted courtroom access to members of certain identifiable groups, for only a short portion of the overall proceeding, during the testimony of a seven-year-old rape victim).

See also State v. McDougald, 38 N.C. App. 244, 259 (1978) (in camera proceedings) (when presence of reporters will not prejudice either party, trial court may in its discretion allow presence of reporters during conferences in chambers; this represents "a practical accommodation of the public's interest in knowing the workings of its court system and the interests of the press under the First Amendment").

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D. Post-trial proceedings

E. Appellate proceedings

IV. Access to criminal court records

A. In general

The North Carolina Constitution provides a qualified right of access to records and documents in a criminal proceeding. In re Investigation into Death of Cooper, 683 S.E.2d 418, 426 (N.C. App. 2009); N.C. Const. art. I, sec. 18. This qualified right of access may be outweighed by a compelling, countervailing governmental interest, and any subsequent sealing or closure must be narrowly tailored to serve that interest. A trial court’s decision to seal documents or close proceedings must be supported by specific findings of fact stated on the record, and it must consider alternatives to sealing before issuing sealing orders. See Cooper, 683 S.E.2d at 427. In Cooper, for example, the sufficiently compelling government interests were the protection of the ongoing investigation; the State’s right to prosecute the perpetrator; and the rights of any future accused to a fair and impartial trial. Id.

Additionally, N.C.G.S. 7A-109(a) specifically grants the public a right to inspect court records in criminal and civil proceedings.  This right is not unlimited, however.  In Brooksby v. NC Admin. of the Courts, 789 S.E.2d 540 (2016), a real estate company sought copies of all foreclosures since 2010. The court clerk provided copies of records sequentially as staff resources permitted.  Requestors sued the Administrative Office of the Courts, arguing a right of independent access to all of the clerk's office's foreclosure records. The Court of Appeals upheld the actions of the clerks.  Similarly, the Court of Appeals found nonexclusive contracts addressing remote electronic access to court records as the sole means of remote electronic access to ACIS database were acceptable.  LexisNexis Risk Data Mgmt. Inc. v. N. Carolina Admin. Office of Courts, 368 N.C. 180, 775 S.E.2d 651 (2015).

Under North Carolina law, “[t]he following court records are public records and may be withheld only when sealed by court order: arrest and search warrants that have been returned by law enforcement agencies,indictments, criminal summons, and nontestimonial identification orders.” N.C.G.S. §132.1.4(k).

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B. Arrest records

C. Dockets

In North Carolina, arrest and search warrants and related documents (e.g., indictments, criminal summonses, and nontestimonial identification orders) become public records once they have been executed and returned to the Clerk of Court and may be withheld only by a court order to seal. See N.C.G.S. 132-1.4(k). In March 2011, a state superior court issued an order detailing the proper procedures for sealing or redacting arrest or search warrants and related materials. The court said that any request to seal or redact should be made by written motion, by or on behalf of the State's acting attorney (i.e., the Attorney General or a district attorney), and be accompanied by an affidavit signed "by the movant, or by another person involved in the investigation, setting forth detailed grounds for the request sealing [sic]." Because the latter affidavit requires specificity, it should be sealed. All information related to sealing orders must be maintained as public record, and for each sealing order, the public must, at minimum, have access to the following: (1) the identity of the law enforcement agency or official at whose request the search warrant was issued; (2) the identity of the attorney who signed the sealing motion; (3) the identity of the judge who signed the sealing order; (4) the date the order was signed; and (5) the date and time the order expires. Citing In re Investigation into Death of Cooper, 683 S.E.2d 418 (N.C. App. 2009) (see below), and Baltimore Sun Co. v. Goetz, 886 F.2d 60 (4th Cir. 1989), the court reiterated that courts should seal arrest or search warrants (and related documents) "only when doing so is essential to preserve higher values and is narrowly tailored to serve that interest." (internal quotations omitted). The court continued: "Interests that may justify sealing, when supported by sufficient evidence that public disclosure of the document would jeopardize such interests, include but are not limited to, the right of the State or defendant to receive a fair trial, the need for law enforcement to maintain the integrity of an ongoing investigation, the privacy rights of innocent third parties, and the protection of witnesses and other third parties." Further, the order said that before ruling on a sealing request, courts should first consider "whether the need for confidentiality can be served by redacting portions of the document or its supporting documentation or by any other less restrictive alternative." The order also provided that court orders to seal or redact "shall expire in thirty days unless a different expiration date is specified in the order." Finally, the superior court order said that courts should treat motions to vacate or modify sealing orders as motions to compel disclosure of public records, which should be given priority and "scheduled as soon a reasonably practicable." Full motion available at http://richmedia.onset.freedom.com/jdn/lhykda-sealingofwarrantsorder.pdf.

In In re Investigation into Death of Cooper, 683 S.E.2d 418 (N.C. App. 2009), the court found no First Amendment right of access to search warrants and related documents in a criminal proceeding. Citing the Fourth Circuit’s opinion in Baltimore Sun Co. v. Goetz, 886 F.2d 60 (4th Cir. 1989), the court considered “whether the place and process have historically been open to the press and general public.” Id. at 425. The court held that because “the issuance of search warrants has [historically] not been open to the press and general public,” plaintiffs (media entities) had no qualified First Amendment right of access. Id. However, there is a qualified right of access under the North Carolina Constitution to records and documents in a criminal proceeding. Thus, before sealing a search warrant, the court must make specific findings of fact, stated on the record, that sealing is necessary to serve a compelling interest. It must also consider alternatives to closure and ensure its sealing orders are the least restrictive means of serving that interest.

In In re Baker Investigation, 220 N.C. App. 108, 117, 727 S.E.2d 316, 322 (2012), a judge ordered the release of 22 search warrants that originally were sealed but, by operation of a local administrative order, no longer should be sealed.  The State appealed the trial court’s ruling, and the Court of Appeals ruled that the release was proper.

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E. Discovery materials

In North Carolina, criminal discovery is governed by N.C.G.S. 15A-901 to 910. This statute, not the Public Records Act, determines disclosure of discovery materials in criminal cases. The N.C. Supreme Court has held that the criminal discovery statute only provides for discovery by the State or by a defendant in the action. See Piedmont Publ'g Co., Inc. v. City of Winston Salem, 334 N.C. 595, 598 (1993) (denying newspaper access to police telephone and audio recordings gathered in the course of criminal investigation); accord News and Observer Publ'g Co. v. State ex rel. Starling, 312 N.C. 276, 284 (1984) (newspaper not before the court as criminal defendant not entitled to discovery under procedures applicable in criminal cases); cf. News and Observer Co., Inc. v. Poole, 330 N.C. 465 (1992) (where S.B.I. prepared investigative reports for public commission, investigative findings became public records subject to Public Records Law once submitted to commission).

The N.C. Supreme Court has acknowledged that criminal defendants have a constitutional right of access to obtain certain pretrial evidence from the prosecution.

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F. Pretrial motions and records

G. Trial records

H. Post-trial records

I. Appellate records

J. Other criminal court records issues

V. Access to civil proceedings

A. In general

The North Carolina Constitution confers a qualified right of access to civil court proceedings and records. See N.C. Const. Art. I, §18 (“All courts shall be open; every person for an injury done him in his lands, goods, person, or reputation shall have remedy by due course of law; and right and justice shall be administered without favor, denial, or delay.”).

The North Carolina Supreme Court has held that:

[A]lthough the public has a qualified [constitutional] right of access to civil court proceedings and records, the trial court may limit this right when there is a compelling countervailing public interest and closure of the court proceedings or sealing of documents is required to protect such countervailing public interest. In performing this analysis, the trial court must consider alternatives to closure. Unless such an overriding interest exists, the civil court proceedings and records will be open to the public. Where the trial court closes proceedings or seals records and documents, it must make findings of fact which are specific enough to allow appellate review to determine whether the proceedings or records were required to be open to the public by virtue of the constitutional presumption of access.

Virmani v. Presbyterian Health Servs. Corp., 350 N.C. 449, 476-77.

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B. Pre-trial proceedings

C. Trials

D. Post-trial proceedings

E. Appellate proceedings

VI. Access to civil records

The North Carolina Public Records Act, N.C.G.S. 132 et seq., defines public records as "all documents, papers, letters, maps, books, photographs, films, sound recordings, magnetic or other tapes, electronic data‑processing records, artifacts, or other documentary material, regardless of physical form or characteristics, made or received pursuant to law or ordinance in connection with the transaction of public business by any agency of North Carolina government or its subdivisions. Agency of North Carolina government or its subdivisions shall mean and include every public office, public officer or official (State or local, elected or appointed), institution, board, commission, bureau, council, department, authority or other unit of government of the State or of any county, unit, special district or other political subdivision of government." N.C.G.S. 132-1(a). The statute is liberally construed in favor of access. Seee.g., Advance Publications v. City of Elizabeth City, 53 N.C. App. 504, 506-07 (1981).

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A. In general

The public's right of access to court records is provided by N.C.G.S. 7A-109(a), which prescribes record-keeping procedures and specifically grants the public the right to inspect records in criminal and civil proceedings.

Public records are generally governed by the North Carolina Public Records Act ("Act"), N.C.G.S. 132 et seq. The Act is liberally construed in favor of access to public records (which are defined by the Act), unless the records sought are specifically exempted by law. See State Employees Ass'n, Inc. v. North Carolina Dep't. of State Treasurer, 364 N.C. 205, 211 (2010); see also N.C.G.S. 132-1.2; 132-1.4.

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B. Dockets

C. Discovery materials

D. Pre-trial motions and records

Under the Public Records Act, a custodian may deny access to a public record that is also trial preparation material, which is defined in N.C.G.S. 132-1.9(h)(2). Where access is denied on the basis that the records were prepared in anticipation of a legal proceeding that has not yet commenced, any person may petition the court for a determination as to whether the public record is in fact trial preparation material that was prepared in anticipation of a legal proceeding. N.C.G.S. 132-1.9(c). Further, during the course of a legal proceeding, "[a]ny person who is denied access to a public record that is also claimed to be trial preparation material and who is not a party to the pending legal proceeding to which such record pertains, and who is not acting in concert with or as an agent for any party to the pending legal proceeding, may petition the court pursuant to G.S. 132-9 for a determination as to whether the public record is trial preparation material." N.C.G.S. 132-1.9(d)(3).

Documents filed by a party with the clerk of court—even records that may be otherwise statutorily exempt—immediately become subject to the Public Records Act, giving the news media the right to inspect and obtain copies of those records. This is true even though the records may remain inadmissible as evidence. See Virmani v. Presbyterian Health Servs. Corp., 350 N.C. 449, 466-67 (1999) (exhibits attached to plaintiff’s complaint, even though exempted by statute, became public records upon filing).

However, where documents are exempted by statute, a party may avoid subjecting them to the public records laws by submitting them directly to the trial court for consideration during pretrial motions and hearings (as opposed to filing them). See id. at 467-69.

One federal district court sitting in North Carolina has distinguished dispositive motions, defined as those affecting litigants' substantive rights (e.g., motions for summary judgment or to dismiss) from non-dispositive motions (such as those related to pre-trial discovery, which involve procedural rights). See Kinetic Concepts, Inc. v. Convatec Inc., 2010 WL 1418312 at *9 (M.D.N.C. 2010). In that case, the court favorably cited precedent holding that a public right of access--both constitutional and common law--extends to dispositive motions and records. Seee.g., Rushford v. The New Yorker Magazine, Inc., 846 F.2d 249, 252 (4th Cir.1988); see also Jennings v. University of North Carolina at Chapel Hill, 340 F. Supp.2d 679, 681 (M.D.N.C. 2004) ("[a] party moving to seal documents filed in support of a motion for summary judgment in a civil case bears a heavy burden").

The North Carolina Supreme Court has said that there is no absolute common law right of access to discovery materials in civil cases; instead, civil discovery is governed by statute. See News and Observer Pub. Co. v. State ex rel. Starling, 312 N.C. 276, 280 (1984) (noting that the U.S. Supreme Court "has indicated that rules governing discovery in civil cases are a matter of legislative grace." (citing Seattle Times Co. v. Rhinehart, 467 U.S. 20 (1984))). Although North Carolina recognizes a general constitutional right of access to information about the activities of public agencies, "the legislature still may properly limit the right of public access in appropriate cases." Starling, 312 N.C.at 285 (upholding restrictions on disclosure of S.B.I. investigative records).

The rules permitting discovery in civil cases are found in N.C.G.S. 1A-1, Rules 26-37. Under Rule 26(b)(1), information sought pursuant to this article must be "reasonably calculated to lead to the discovery of admissible evidence" to be used in the trial of the action in which discovery is sought. See N.C.G.S. 1A-1, Rule 26(b)(1); see also News and Observer Publ'g Co. v. State ex rel. Starling, 312 N.C. at 284. Thus, where the N.C. Supreme Court determined that a newspaper "sought access to S.B.I. records only due to its desire to know and publish the contents," the rules permitting discovery in civil cases were unavailable.

Further, N.C.G.S. Rule 26(c) provides in part that:

Upon motion by a party or by the person from whom discovery is sought, and for good cause shown, the judge of the court in which the action is pending may make any order which justice requires to protect a party or person from unreasonable annoyance, embarrassment, oppression, or undue burden or expense, including one or more of the following: . . . (v) that discovery be conducted with no one present except persons designated by the court; (vi) that a deposition after being sealed be opened only by order of the court; (vii) that a trade secret or other confidential research, development, or commercial information not be disclosed or be disclosed only in a designated way; (viii) that the parties simultaneously file specified documents or information enclosed in sealed envelopes to be opened as directed by the court.

The U.S. Court of Appeals for the Fourth Circuit (which has jurisdiction over North Carolina) has not resolved the question of whether the public right of access applies to documents relating to discovery motions. However, one federal district court sitting in North Carolina recently interpreted Fourth Circuit precedent as strongly suggesting that no right of access attaches in this context. See Kinetic Concepts, Inc. v. Convatec Inc., 2010 WL 1418312 at *9-10 (M.D.N.C. 2010) (citing, inter alia, Seattle Times Co. v. Rhinehart, 467 U.S. 20, 33 & n.19 (1984)).

In Haas v. Golding Transport, 2010 WL 1257990 (M.D.N.C. 2010), the parties sought to enter a mutual consent protective order to insulate themselves from embarrassment and from having to make personal records public. The proposed order suggested the parties could, at their own discretion, prevent disclosure of discovery materials and other evidence offered in open court simply by designating such materials as "confidential." The parties' proposed order defined "confidential information" to "include documents, information contained in documents, depositions, interrogatory answers, and all other discovery pursuant to the Federal Rules of Civil Procedure, court testimony, matters in evidence and other information furnished by or on behalf of any party in connection with this litigation which falls within the scope of this Order." Id. at *3. The court refused to enter the order as proposed because the language would preclude the court from following procedural requirements (e.g., considering less drastic alternatives to sealing, and stating its reasons for sealing and rejecting those alternatives) and substantive requirements (e.g., determining the source of the right of access with respect to each document, and weighing the competing interests accordingly). Id. at *8.

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E. Trial records

The North Carolina Constitution confers a qualified right of access to civil court proceedings and records. See N.C. Const. Art. I, §18 (“All courts shall be open; every person for an injury done him in his lands, goods, person, or reputation shall have remedy by due course of law; and right and justice shall be administered without favor, denial, or delay.”). Further, N.C.G.S. 7A-109(a) specifically grants the public a right to inspect court records in criminal and civil proceedings.

The North Carolina Supreme Court has held that “although the public has a qualified [constitutional] right of access to civil court proceedings and records, the trial court may limit this right when there is a compelling countervailing public interest and closure of the court proceedings or sealing of documents is required to protect such countervailing public interest. In performing this analysis, the trial court must consider alternatives to closure. Unless such an overriding interest exists, the civil court proceedings and records will be open to the public. Where the trial court closes proceedings or seals records and documents, it must make findings of fact which are specific enough to allow appellate review to determine whether the proceedings or records were required to be open to the public by virtue of the constitutional presumption of access.” Virmani v. Presbyterian Health Servs. Corp., 350 N.C. 449, 476-77.

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F. Settlement records

SeeN.C.G.S. 132-1.3 (settlements made by or on behalf of public agencies, public officials, or public employees): no judge may "order or permit the sealing of any settlement document in any proceeding described [in N.C.G.S. 132-1.3(a)] except on the basis of a written order concluding that (1) the presumption of openness is overcome by an overriding interest and (2) that such overriding interest cannot be protected by any measure short of sealing the settlement. Such order shall articulate the overriding interest and shall include findings of fact that are sufficiently specific to permit a reviewing court to determine whether the order was proper." N.C.G.S. 132-1.3(b). Settlement documents in any proceeding against an agency of North Carolina government or its subdivisions are public records, except in medical malpractice actions against hospitals. See also Goldsmith v. Henderson County Bd. of Pub. Ed., 2003 WL 23341192 at *4 (N.C. Super. 2003) (granting newspaper's motion to require filing of parties' settlement, noting that N.C.G.S. 132-1.3 specifically provides that settlement agreements involving public agencies shall not be confidential).

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G. Post-trial records

H. Appellate records

I. Other civil court records issues

VII. Jury and grand jury access

A. Access to voir dire

B. Juror identities, questionnaires and other records

C. Grand jury proceedings and records

D. Interviewing jurors

VIII. Proceedings involving minors

A. Delinquency

Under North Carolina law, all juvenile hearings "shall be open to the public unless the court closes the hearing or part of the hearing for good cause, upon motion of a party or its own motion." N.C.G.S. 7B-2402. The statute provides that when determining whether good cause exists to close all or part of a hearing, the court should consider the circumstances, including (but not limited to) the nature of the allegations against the juvenile; the juvenile's age and maturity; the benefit to the juvenile of confidentiality; the benefit to the public of an open hearing; and the extent to which the confidentiality of the juvenile's file will be compromised by an open hearing. Id. Accordingly, North Carolina courts recognize that "[t]he decision to close a juvenile hearing to the public is one that lies within the discretion of the trial court." In re K.T.L., 177 N.C. App. 365, 370 (2006) (citing In re Potts, 14 N.C. App. 387, 391-92 (1972)).

In North Carolina, "many statutes restrict the dissemination of information about juvenile cases." In re M.B., 153 N.C. App. 278, 281 (2002). See, e.g., N.C.G.S. 7B-3001(b) ("all law enforcement records and files concerning a juvenile shall be . . . withheld from public inspection"; subject to five exceptions, the records and files may only be examined or copied by court order); N.C.G.S. 7B-3100(b) (subject to two exceptions, "[d]isclosure of information concerning any juvenile under investigation or alleged to be within the jurisdiction of the court that would reveal the identity of that juvenile is prohibited . . . ."); N.C.G.S. 7B-2102(d) (fingerprints and photographs of juveniles taken pursuant to the Juvenile Code are not public records and "shall be withheld from public inspection or examination.").

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B. Dependency

C. Other proceedings involving minors

Adoptions: See N.C.G.S. 48-2-203 ("A judicial hearing in any proceeding pursuant to this Chapter [adoption of a minor child] shall be held in closed court.")

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D. Prohibitions on photographing or identifying juveniles

See N.C.G.S. 7B-2102(d) (fingerprints and photographs of juveniles taken pursuant to the Juvenile Code are not public records and "shall be withheld from public inspection or examination.").

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E. Minor testimony in non-juvenile courts

In North Carolina, "a trial court may close proceedings to protect minors in certain situations, such as where a child is testifying about alleged abuse that child has suffered, or adoption proceedings." France v. France, 2011 WL 294051 at *8 (N.C. App. 2011). However, the state Court of Appeals has held that North Carolina case law does not "[support] the closing of an entire proceeding merely because some evidence relating to a minor child would be admitted." In France, the court held that "[i]n most instances, a proceeding will only be closed during the testimony of the minor child." Id. The trial court has discretion to decide whether any part of a proceeding should be closed to protect a minor child.

N.C.G.S. 15-166 provides, for instance, that "[i]n the trial of cases for rape or sex offense or attempt to commit rape or attempt to commit a sex offense, the trial judge may, during the taking of the testimony of the prosecutrix, exclude from the courtroom all persons except officers of the court, the defendant, and those engaged in the trial of the case."

In State v. Robinson, 191 N.C. App. 612 (2008) (unpub'd opinion), the Court of Appeals applied N.C.G.S. 15-166 in upholding closure of a courtroom during a child rape victim's testimony, reasoning that "there was no general exclusion of the public or to the proceedings as a whole but a limited exclusion for the duration of a child's testimony." Id. at *4. Citing an earlier North Carolina Supreme Court case (see below), the court held that in applying N.C.G.S. 15-166, the trial court was follow the criteria set forth by the U.S. Supreme Court in Waller v. Georgia, 467 U.S. 39, 48 (1984): the court must (1) determine whether the party seeking closure has shown an overriding interest that is likely to be prejudiced if closure is not granted; (2) order closure no broader than necessary to protect that interest; (3) consider reasonable alternatives to closure; and (4) make adequate findings to support the closure granted. Note: An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored but may be permitted under certain state rules of appellate procedure.

In State v. Burney, 302 N.C. 529 (1981), the North Carolina Supreme Court upheld the exclusion of all but certain persons from the courtroom during the testimony of an alleged 7-year-old rape victim (also applying N.C.G.S. 15-166, supra). The court found it significant that "access to the courtroom was restricted to the members of identifiable groups for only a small segment of the overall proceeding," id. at 535, and concluded that "the delicate nature of child sex abuse . . . as well as the age of the child . . . [made] out a showing of an overriding interest to justify closure," (internal quotations and citations omitted), id. at 538.

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IX. Special proceedings

A. Tribal Courts in the jurisdiction

B. Probate

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

B. Gag orders on the press

C. Gag orders on participants

In Beaufort Cty. Bd. of Educ. v. Beaufort Cty. Bd. of Comm'rs, 184 N.C. App. 110, 116, 645 S.E.2d 857, 861 (2007), the Court of Appeals found the gag order put in place by the trial court failed constitutional standards.

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D. Interviewing judges

XI. Other issues

A. Interests often cited in opposing a presumption of access

N.C.G.S. 15A-1034(a) provides that "[t]he presiding judge may impose reasonable limitations on access to the courtroom when necessary to ensure the orderliness of courtroom proceedings or the safety of persons present."  To search the North Carolina General Statutes, visit http://www.ncga.state.nc.us/gascripts/Statutes/Statutes.asp

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B. Cameras and other technology in the courtroom

C. Tips for covering courts in the jurisdiction

For more information on North Carolina Court Rules, visit http://www.aoc.state.nc.us/www/public/html/rulesgen.htm.

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