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Rhode Island

Open Courts Compendium

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Author

Raymond A. Marcaccio, Esq.
Santiago H. Posas, Esq.
Oliverio & Marcaccio LLP
55 Dorrance Street
Suite 400
Providence, RI 02903
Phone: 401.861.2900

Special thanks to the previous authors of this chapter, Joseph V. Cavanagh, Jr., Esq., Mary Dunn, Esq., and Robert J. Cavanagh, Jr., Esq. of Blish & Cavanagh, LLP. 

Last updated Dec. 4, 2019

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I. Introduction: Access rights in the jurisdiction

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A. The roots of access rights

The Rhode Island Supreme Court recognizes two sources of the right to access court information.  One is “a general right” under the common law “to inspect and copy public records and documents, including judicial records and documents.”  Providence Journal Co. v. Rodgers, 711 A.2d 1131, 1135 (R.I. 1998) (quoting Nixon v. Warner Communications, Inc., 435 U.S. 589, 597 (1978)); Hillside Assocs. v. Stravato, 642 A.2d 664, 669 (R.I. 1994) (“[P]ublic policy supports open access to the courts[.]”).  The other is the First Amendment right of public access to criminal trials.  Rodgers, 711 A.2d at 1135 (“That the press and the public have a First Amendment right of access to criminal trials is beyond dispute.” (quoting Richmond Newspapers Inc. v. Virginia, 448 U.S. 555, 580 (1980))); see also In re Derderian, 972 A.2d 613, 617 (R.I. 2009).

The Rhode Island Superior Court Rules of Civil Procedure also provide for public access to court proceedings.  Rule 77(b) provides that “[a]ll trials upon the merits shall be conducted in open court and so far as practicable in a regular court room.”  Rule 43(a) also provides that “[i]n all trials the testimony of witnesses shall be taken orally in open court, unless otherwise provided by statute, by these rules, or by the Rhode Island Rules of Evidence.”

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B. Overcoming a presumption of openness

The Rhode Island Supreme Court has adopted tests to determine the scope of both the public’s common law and constitutional rights of access to court documents and proceedings.  Providence Journal Co. v. Rodgers, 711 A.2d 1131, 1136 (R.I. 1998) (quoting Nixon v. Warner Communications, Inc., 435 U.S. 589, 602 (1978)).  In a criminal case where the First Amendment right of access applies, “[a]ccess may be denied when such denial is narrowly tailored to serve a compelling government interest.”  Id. at 1135 (quoting Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 606-07 (1982)).  Addressing the propriety of a protective order, the Court has held that:

A protective order (1) must be narrowly tailored to serve the interests sought to be protected, (2) must be the only reasonable alternative, (3) must permit access to those parts of the record not deemed sensitive, and (4) must be accompanied by the trial justice’s specific findings explaining the necessity for the order.

State v. Cianci, 496 A.2d 139, 144 (R.I. 1985).

In civil matters, “[c]ourt records are generally public documents and are subject to supervision by the court. . . . Basically, all court documents are public.”  Providence Journal Co. v. Clerk of Family Court, 642 A.2d 210, 211 (R.I. 1994).  Although the Rhode Island Supreme Court has not addressed what constitutes a “court record,” a decision by the Superior Court adopted the approach that “documents that are filed with the court that reasonably may be relied upon in support of any part of the court’s adjudicatory function are judicial documents.”  Dauray v. Estate of Mee, No. PB-10-1195, 2013 WL 372647, at *10, 2013 R.I. Super. LEXIS 19, at *40-41 (R.I. Super. Ct. Jan. 23, 2013) (quoting Rosado v. Bridgeport Roman Catholic Diocesan Corp., 970 A.2d 656, 678 (Conn. 2009)).

Once a document is identified as a “court record,” the scope of the public’s common law right of access is determined according to a balancing test that weighs the competing interests for and against disclosure.  See id. at *48-49 (citing Chicago Tribune Co. v. Bridgestone/Firestone, Inc., 263 F.3d 1304, 1311 (11th Cir. 2001) (“[T]he common law right of access requires a balancing of competing interests.”)).

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C. Procedural prerequisites to closure

A protective order restricting access to court documents in a criminal case “must be accompanied by the trial justice’s specific findings explaining the necessity of the order,” as well as his or her consideration of alternatives to a protective order as a means for protecting the asserted interests.  State v. Cianci, 496 A.2d 139, 144 (R.I. 1985).

A protective order in a civil case requires a motion under Rhode Island Superior Court Rule of Civil Procedure 26(c), which may be granted upon a showing of “good cause . . . to protect a party or person from annoyance, embarrassment, oppression, or undue burden and expense,” “accompanied by a certification that the movant has in good faith conferred or attempted to confer with other affected parties in an effort to resolve the dispute without court action.”

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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

“It is well settled that ‘the First Amendment generally grants the press no right to information about a trial superior to that of the general public [and] . . . ‘a reporter’s constitutional rights are no greater than those of any other member of the public.’”  Providence Journal Co. v. Rodgers, 711 A.2d 1131, 1135 (R.I. 1998) (quoting Nixon v. Warner Commc’ns Inc., 435 U.S. 589, 609 (1978)).  However, “[t]he right to intervene to challenge a closure order is rooted in the public’s well established right to access to public proceedings.”  Dauray v. Estate of Mee, No. PB-10-1195, 2013 R.I. Super. LEXIS 19, at *19 (R.I. Super. Ct. Jan. 23, 2013) (quoting Jessup v. Luther, 227 F.3d 993, 997 (7th Cir. 2000)).  “‘The filing of a motion to intervene [under Rule 24(b)] is simply recognized as an appropriate means of raising assertions of public rights of access to information regarding matters in litigation.’”  Id. at *10 (quoting Mokhiber v. Davis, 537 A.2d 1100, 1104-05 (D.C. 1988)).  While it does not fit neatly into the framework of Rule 24, permissive intervention by media entities is routinely granted for the limited purpose of challenging a confidentiality order under the court’s “inherent power to modify protective orders that remain in effect.”  Id. at *15-17 (citations omitted).

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B. Procedure for requesting access in criminal cases

Rather than attempt to intervene in a criminal case, a member of the public or a media entity is advised “to institute a separate, independent action against the sealing authority by way of a complaint for declaratory judgment in the Superior Court” under the Uniform Declaratory Judgments Act., R.I. Gen. Laws § 9-30-1 through -16.  State v. Cianci, 496 A.2d 139, 146 (R.I. 1985).

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C. Procedure for requesting access in civil matters

“‘The filing of a motion to intervene [under Rule 24(b)] is simply recognized as an appropriate means of raising assertions of public rights of access to information regarding matters in litigation.’”  Dauray v. Estate of Mee, No. PB-10-1195, 2013 WL 372647 at *3, 2013 R.I. Super. LEXIS 19, at *10 (R.I. Super. Ct. Jan. 23, 2013) (quoting Mokhiber v. Davis, 537 A.2d 1100, 1104-05 (D.C. 1988)).

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D. Obtaining review of initial court decisions

In the civil context, the Rhode Island Supreme Court has adopted the view that an order allowing intervention is not a final order and, therefore, that the granting of a motion to intervene is not appealable.   Chariho Reg’l Sch. Dist. v. State, 207 A.3d 1007, 1013-14 (R.I. 2019).  Conversely, “a denial of a motion to intervene has sufficient finality to be appealable.”  Industrial National Bank v. Colt, 101 R. I. 488, 224 A.2d 900 (1966).  The decisions on a motion to vacate or modify a protective order according to the standard adopted in Dauray v. Estate of Mee is within the sound discretion of the trial justice and will not be reversed on appeal absent a showing of abuse of discretion or other error of law.  No. PB-10-1195, 2013 WL 372647, at *15, 2013 R.I. Super. LEXIS 19, at *52 (R.I. Super. Ct. Jan. 23, 2013) (citing Providence Journal Co. v. Clerk of Family Court, 643 A.2d 210, 211 (R.I. 1994)).

In the criminal context, denial of a declaratory judgment is reviewable in the same way as any other order, judgment, or decree.  R.I. Gen. Laws § 9-30-7.  As the Court in State v. Cianci suggested, “in [the] hearing [on the right of access] a record could be created for this court to review if the complaining party is still aggrieved.”  496 A.2d 139, 146 (R.I. 1985).

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III. Access to criminal proceedings

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A. In general

“That the press and the public have a First Amendment right of access to criminal trials is beyond dispute.”  Providence Journal Co. v. Rodgers, 711 A.2d 1131, 1135 (R.I. 1998) (citing Richmond Newspapers Inc. v. Virginia, 448 U.S. 555, 580 (1980)).  “This right is implied in the First Amendment’s ‘core purpose’ of assuring free and open public discussion[.]”  Providence Journal Co. v. Superior Court, 593 A.2d 446, 448 (R.I. 1991) (citing United States v. Peters, 754 F.2d 753, 758 (7th Cir. 1985)).  In addition, there is “a general right to inspect and copy public records and documents, including judicial records and documents” based on the common law.  Rodgers, 711 A.2d at 1135 (citing Nixon v. Warner Communications Inc., 435 U.S. 589, 597 (1978)).

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B. Pretrial proceedings

The Rhode Island Supreme Court has recognized that the public’s right of access “has been specifically interpreted as including the right of access to the voir dire examination of prospective jurors in a criminal trial.”  Providence Journal Co. v. Superior Court, 593 A.2d 446, 448 (R.I. 1991) (citing Press-Enterprise Co. v. Superior Court of California, Riverside County, 464 U.S. 501 (1984)).  In State v. Cianci, the Rhode Island Supreme Court delineated a four-part inquiry that applies when determining whether the presumption of access to criminal trials is rebutted.  496 A.2d 139, 144 (R.I. 1985) (citing Press-Enterprise Co., 464 U.S. at 511-14).  In In re Derderian, the Superior Court applied the test from Cianci to hold that a newspaper’s request for access to the completed preliminary jury questionnaires was denied.  M.P. No.: 06-835, 2006 R.I. Super. LEXIS 134, at *14-32 (R.I. Super. Ct. October 12, 2006) (citing State v. Cianci, 496 A.2d 139, 144 (R.I. 1985)).

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C. Criminal trials

“It is undisputed that the press and the public have a constitutional right of access to attend criminal trials.”  Providence Journal Co. v. Superior Court, 593 A.2d 446, 448 (R.I. 1991) (citing Globe Newspaper Co. v. Superior Court, 457 U.S. 596 (1982)) (reversing trial justice’s order for closure of individual voir dire examination of prospective jurors to the press and public because he failed to make factual findings on the record to justify such closure).  In a criminal case, “[a]ccess may be denied when such denial is narrowly tailored to serve a compelling government interest.”  Id. at 1135 (quoting Globe Newspaper Co., 457 U.S. at 606-07 (1982)).

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D. Post-trial proceedings

The Rhode Island Supreme Court has not directly addressed the right of access to post-trial proceedings.

However, looking to federal case law on the subject, which Rhode Island courts do when faced with a dearth of case law in the jurisdiction, the First Circuit has addressed public access to sentencing memoranda.  United States v. Kravetz, 706 F.3d 47 (1st Cir. 2013).  There the court said that “[public] oversight serves several values when a court is called upon to exercise its discretion to impose a criminal sentence.”  Id. at 57 (citation omitted).

“Public access in this context may serve to ‘check any temptation that might be felt by either the prosecutor or the court . . . to seek or impose an arbitrary or disproportionate sentence, promote accurate fact-finding, and in general stimulate public confidence in the criminal justice system by permitting members of the public to observe that the defendant is justly sentenced.”

Id.  In granting a journalist access to documents filed under seal in a criminal case, the court also permitted access to sentencing memoranda under the rationale that “sentencing memoranda are judicial documents subject to the common law presumption of public access.”  Id.

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E. Appellate proceedings

The Rhode Island Supreme Court has not directly addressed the right of access to appellate proceedings.  However, Rhode Island Supreme Court Rule of Appellate Procedure 22(b) states that arguments before the Court are held “in open session.”

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IV. Access to criminal court records

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A. In general

The Rhode Island Supreme Court recognizes a common law right “to inspect and copy public records and documents, including judicial records and documents.”  Providence Journal Co. v. Rodgers, 711 A.2d 1131, 1135 (R.I. 1998) (quoting Nixon v. Warner Communications, Inc., 435 U.S. 589, 597 (1978)).

Though the Rhode Island Supreme Court has not explicitly recognized that the constitutional right extends to court records, it would likely do so because in State v. Cianci it prescribed the four-part test to “closure” generally in reliance on a federal case citing the First Amendment right of access, doing so in a review of the trial justice’s order closing access to information that included court records.  496 A.2d 139, 144-145 (R.I. 1985) (citing Press-Enterprise Co. v. Superior Court, 464 U.S. 501 (1984)).

The First Circuit has also held that the constitutional right “extends to documents and kindred materials submitted in connection with the prosecution and defense of criminal proceedings.”  In re Providence Journal Co., 293 F.3d 1, 10 (1st Cir. 2002).

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B. Arrest records

The Rhode Island Supreme Court has not directly addressed this question.  However, the Rhode Island Superior Court has held that “[t]he fact that certain copies of this evidence may have been presented to the Grand Jury will not automatically bar its disclosure.”  Heikkinen v. Kilmartin, No. PC 14-4836, 2014 R.I. Super. LEXIS 159, *8 (R.I. Super. Ct. November 18, 2014).  Thus, whether an arrest record may be accessed is not absolutely prohibited, but is subject to Rhode Island Superior Court Rules of Criminal Procedure 6(e), which limits the disclosure of matters before a grand jury.  See id.

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C. Dockets

Rhode Island Courts have not directly addressed this question.

As Rhode Island courts would look to federal case law in such circumstance, the U.S. Court of Appeals for the First Circuit cited with approval the  Second Circuit’s reasoning that “docket sheets provide a kind of index to judicial proceedings and documents, and endow the public and press with the capacity to exercise their [access] rights . . . .”  United States v. Kravetz, 706 F.3d 47, 59-60 (1st Cir. 2013) (citing Hartford Courant Co. v. Pellegrino, 380 F.3d 83, 93 (2d Cir. 2004)).

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The Rhode Island Supreme Court has not directly addressed this question.

As Rhode Island courts would look to federal case law in such circumstances, the U. S. District Court for the District of Rhode Island concluded that the public does not have a First Amendment right of access to search warrant documents but does have a qualified common law right of access.  United States v. Cianci, 175 F. Supp. 2d 194, 199-201 (D.R.I. 2001).  The court applied the test from Press-Enterprise Co. v. Superior Court, 478 U.S. 1, 8 (1986), which states that a qualified First Amendment right applies when “the place and process have historically been open to the press and general public,” and where “public access plays a significant positive role in the functioning of the particular process in question.”  United States v. Cianci, 175 F. Supp. 2d at 199-201.  The court concluded that the test is typically not satisfied with regard to search warrants and supporting affidavits since “historically, proceedings to obtain search warrants have been conducted ex parte and have not been open to the public.”  Id. at 200.  It went on to explain that:

[The fact that search warrants and supporting affidavits are often filed with the district court without seal . . . merely describes a practice in cases where the government presumably believes secrecy is unnecessary; it does not establish that the First Amendment requires that warrant materials be filed without seal.

Id. (quoting Times Mirror Co. v. United States, 873 F.2d 1210, 1217 (9th Cir. 1989)).

However, the court went on to recognize that the public has “a qualified common law right of access to judicial records, in general.”  Id. (citing Nixon v. Warner Communications, 435 U.S. 589, 597-99 (1978)). “Since Federal Rule of Criminal Procedure 41(g) requires that warrant documents be filed with the clerk of court, and since those documents become part of the court file they, clearly, are judicial records.  Id. (citation omitted).  “[T]he 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.’”  Id. (quoting Baltimore Sun Co. v. Goetz, 886 F.2d 60, 64 (4th Cir. 1989)).

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E. Discovery materials

In a criminal case, access to discovery materials may be denied when “necessitated by a compelling governmental interest, and [closure] is narrowly tailored to serve that interest.”  State v. Cianci, 496 A.2d 139, 144 (R.I. 1985) (quoting Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 606-07 (1982)).  Addressing the propriety of a protective order concerning pretrial discovery, the Court held that:

A protective order (1) must be narrowly tailored to serve the interests sought to be protected, (2) must be the only reasonable alternative, (3) must permit access to those parts of the record not deemed sensitive, and (4) must be accompanied by the trial justice’s specific findings explaining the necessity for the order.

Cianci, 496 A.2d at 144.  Concluding that such a standard was not satisfied, in Cianci the Rhode Island Supreme Court thus reversed the trial court’s order to seal discovery documents in the state criminal prosecution of a former mayor of Providence.  Id. at 145.

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F. Pretrial motions and records

The Rhode Island Supreme Court has not directly addressed this question.  However, in State v. Cianci, it prescribed a four-part test to “closure” in a review of the trial justice’s order closing access to information that included court records.  496 A.2d 139, 144-45 (R.I. 1985) (citing Press-Enterprise Co. v. Superior Court, 464 U.S. 501 (1984)).

A protective order (1) must be narrowly tailored to serve the interests sought to be protected, (2) must be the only reasonable alternative, (3) must permit access to those parts of the record not deemed sensitive, and (4) must be accompanied by the trial justice’s specific findings explaining the necessity for the order.

Cianci, 496 A.2d at 144.  The First Circuit has also held that the constitutional right “extends to documents and kindred materials submitted in connection with the prosecution and defense of criminal proceedings.”  In re Providence Journal Co., 293 F.3d 1, 10 (1st Cir. 2002).

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G. Trial records

The Rhode Island Supreme Court addressed access to trial records in Providence Journal Co. v. Rodgers, 711 A.2d 1131 (R.I. 1988), in the context of criminal cases involving sex crimes against minors.  In that case the Rhode Island Supreme Court adopted a “dual filing” docket system for criminal cases involving sex crimes against minors.  Under this system, the court is required to maintain a “public file” and a “confidential court file” during the prosecution and disposition of any case where a child is identified as the victim of a sexual assault. Id. at 1138.  The “public file” must include versions of documents where the victims’ names and identifying facts are redacted, in order to protect child victims from further trauma. The “public file” “shall not include in any form, redacted or otherwise, victim-specific documents relating to the child victim that are otherwise confidential under the statutes and policies of our state. Such excluded documents include, but are not limited to, school records, medical records, reports from the Department of Children, Youth and Families, reports or records of counselors, therapists, and social workers . . . .”  Id. (emphasis in original). This system has been codified in Rule 3.3 of the Superior Court Rules of Practice.

In a federal court case, In re Providence Journal Co., 293 F.3d 1, 10 (1st Cir. 2002), a newspaper requested copies of edited videotapes and audiotapes played at trial. The trial court denied this request, and the First Circuit upheld the denial, in part because “the public and the press . . . had ample opportunity to see and hear the evidentiary tapes when those tapes were played in open court during trial” and thus satisfied the public’s right of access.  Id. at 17-18.

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H. Post-trial records

The Rhode Island Supreme Court has not directly addressed the question of access to court records post-trial.  In the absence of local case law, Rhode Island courts typically look to federal case law on the same topics, particularly emphasizing cases from the U.S. District Court of the District of Rhode Island and the First Circuit Court of Appeals.  In Globe Newspaper Co. v. Pokaski, the First Circuit held that the media had a qualified First Amendment right of access to records in closed criminal cases where the defendant had been adjudicated not guilty, but not to records in cases where the grand jury had failed to indict.  See 868 F.2d 497, 509 (1st Cir. 1989).  The First Circuit reasoned that, “in contrast to criminal trials, ‘grand jury proceedings have traditionally been closed to the public,’” and the “public has no right to attend grand jury proceedings.”  See Globe Newspaper, 868 F.2d at 509 (quoting Press-Enterprise Co. v. Superior Court, 478 U.S. 1, 10 (1986)).

In United States v. Kravetz, the First Circuit concluded that the public availability of sentencing memoranda and sentencing-related letters sent by third-parties directly to the district court are “judicial documents subject to the common law presumption of public access[,]” but reserved judgment as to whether a constitutional right of access attaches to those documents. 706 F.3d 47, 53, 57 (1st Cir. 2013).

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I. Appellate records

The Rhode Island Supreme Court has not directly addressed this question.  Rule 16(a) requires filing briefs with the clerk of the Court.  Under the approach adopted by the Rhode Island Superior Court in Dauray v. Estate of Mee, “documents that are filed with the court that reasonably may be relied upon in support of any part of the court‘s adjudicatory function are judicial documents” and must be disclosed.  No. PB-10-1195, 2013 WL 372647 at *12-15, 2013 R.I. Super. LEXIS 19, at *40-41 (R.I. Super. Ct. January 23, 2013) (quoting Rosado v. Bridgeport Roman Catholic Diocesan Corp., 970 A.2d 656, 678 (Conn. 2009)).  Under such a standard, appellate documents would likewise be open to public access.  See id.

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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

The Rhode Island Superior Court Rules of Civil Procedure provide for public access to court proceedings.  Rule 77(b) states that “All trials upon the merits shall be conducted in open court and so far as practicable in a regular court room.”  Rule 43(a) also provides that “In all trials the testimony of witnesses shall be taken orally in open court, unless otherwise provided by statute, by these rules, or by the Rhode Island Rules of Evidence.”

The question of media coverage of court proceedings is addressed below in the section on Cameras and other technology in the courtroom.

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B. Pre-trial proceedings

“[T]he traditional openness of public trials ‘evolved into a presumption of public access to court proceedings and records that remains a fundamental part of our judicial system today.’”  Dauray v. Estate of Mee, No. PB-10-1195, 2013 WL 372647 at *10, 2013 R.I. Super. LEXIS 19, at *40-41 (R.I. Super. Ct. January 23, 2013) (quoting Rosado v. Bridgeport Roman Catholic Diocesan Corp., 970 A.2d 656, 676 (Conn. 2009)).  “Though its original inception was in the realm of criminal proceedings, the right of access has since been extended to civil proceedings because the contribution of publicity is just as important there.”  Id. (quoting Grove Fresh Distributors, Inc. v. Everfresh Juice Co., 24 F.3d 893, 897 (7th Cir. 1994)).

There is no express prohibition on any person attending a deposition, though Rhode Island Superior Court Rule of Civil Procedure 30(c) states that non-parties “shall not be permitted [to attend depositions] unless notice of same has been given to all attorneys of record and self-represented litigants at least forty-eight (48) hours before the deposition.”  Although this means that members of the public, other witnesses, and the media are not expressly excluded so long as they provide the required notice, they may be excluded by a protective order issued by the court.  R.I. Super. R. Civ. P. 26(c).

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C. Trials

“[T]he traditional openness of public trials ‘evolved into a presumption of public access to court proceedings and records that remains a fundamental part of our judicial system today.’”  Dauray v. Estate of Mee, No. PB-10-1195, 2013 WL 372647, at *10, 2013 R.I. Super. LEXIS 19, at *40-41 (R.I. Super. Ct. Jan. 23, 2013) (quoting Rosado v. Bridgeport Roman Catholic Diocesan Corp., 970 A.2d 656, 676 (Conn. 2009)).  “Though its original inception was in the realm of criminal proceedings, the right of access has since been extended to civil proceedings because the contribution of publicity is just as important there.”  Id. (quoting Grove Fresh Distribs., Inc. v. Everfresh Juice Co., 24 F.3d 893, 897 (7th Cir. 1994)).

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D. Post-trial proceedings

Rhode Island courts have not addressed the extent to which civil post-trial proceedings are subject to public access.  Audio and video recording and photography of such proceedings is regulated by Article VII of the Supreme Court Rules, which governs media coverage of judicial proceedings.  Those rules are covered more fully in the section on Cameras and other technology in the courtroom below.

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E. Appellate proceedings

The Rhode Island Supreme Court has not directly addressed the right of access to appellate proceedings.  However, Rhode Island Supreme Court Rule of Appellate Procedure 22(b) states that arguments before the Court are held “in open session.”  That said, recording and photography of such proceedings is regulated by Article VII of the Supreme Court Rules, which governs media coverage of judicial proceedings.  Those rules are covered more fully in the section below on Cameras and other technology in the courtroom.

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VI. Access to civil records

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A. In general

In civil matters, “[c]ourt records are generally public documents and are subject to supervision by the court. . . . Basically, all court documents are public.”  Providence Journal Co. v. Clerk of Family Court, 643 A.2d 210, 211 (R.I. 1994).  Although the Rhode Island Supreme Court has not addressed what constitutes a “court record,” the Rhode Island Superior Court has adopted the approach that “documents that are filed with the court that reasonably may be relied upon in support of any part of the court‘s adjudicatory function are judicial documents.”  Dauray v. Estate of Mee, No. PB-10-1195, 2013 WL 372647, at *13, 2013 R.I. Super. LEXIS 19, at *40-41 (R.I. Super. Ct. January 23, 2013) (quoting Rosado v. Bridgeport Roman Catholic Diocesan Corp., 970 A.2d 656, 678 (Conn. 2009)). In Dauray, media intervenors and the plaintiff sought documents produced in discovery and filed in the Superior Court by filing a motion to vacate or modify a probate judge’s protective order.  Id. at 2013 WL 372647, at *1-2, 2013 R.I. Super. LEXIS 19, at *1-2.  That order was entered in the probate court before appeal to the Superior Court, and was not a part of the appeal to the Superior Court.  Id.  Citing federal law, the Superior Court recognized that court documents and judicial records are open to the public and cannot be withheld, but documents produced in discovery are not necessarily public just because they were filed with the court.  Id. at 2013 WL 372647, at *12-13, 2013 R.I. Super. LEXIS 19, at *38-39 (citing Nixon v. Warner Communications, Inc., 435 U.S. 589 (1978); Seattle Times Co. v. Rhinehart, 467 U.S. 20 (1984)).

The Superior Court also determined that once a document is identified as a “court record,” the scope of the public’s right of access is determined according to a balancing test.  See id. at 2013 WL 372647, at *14-15, 2013 R.I. Super. LEXIS 19, at *48-49 (citing Chicago Tribune Co. v. Bridgestone/Firestone, Inc., 263 F.3d 1304, 1311 (11th Cir. 2001) (“[T]he common law right of access requires a balancing of competing interests.”)).  While the usual limitation on public disclosure in the first instance is the standard for granting a protective order contained in Rhode Island Superior Court Rule of Civil Procedure 26(c), in the context of modifying a protective order that conflicts with the right of access, the Superior Court provided as follows:

[F]irst, “the moving party bears the burden of demonstrating why modification is appropriate.”  Grounds for modification include: “the original basis for the sealing orders no longer exists; the sealing orders were granted improvidently; or the interests protected by sealing the information no longer outweigh the public’s right to access.”  The final ground “permits the trial court to consider situations in which the original basis for the sealing orders still exists to some degree but has been altered because of a change in circumstances.”  Upon a showing of grounds for modification, the second part of the balancing of the interest test requires the court to “balance[] the interests of the party moving to unseal the information with the countervailing interests presented by the party seeking to keep the information sealed.”

Dauray, 2013 WL 372647, at *14, 2013 R.I. Super. LEXIS 19, at *50-51 (quoting Rosado, 970 A.2d at 691-92) (internal citations omitted).

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B. Dockets

The Rhode Island Courts have not addressed the extent to which civil dockets are subject to public access.

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C. Discovery materials

The Rhode Island Superior Court has held that “there is no public right of access to unfiled discovery that is not used in a judicial proceeding.”  Gaube v. Landmark Med. Ctr., 2013 WL 861529, at *1, 2013 R.I. Super. LEXIS 38, at *3 (R.I. Super. Ct. Feb. 25, 2013) (citing Dauray, 2013 WL 372647, at *11-14, 2013 R.I. Super. LEXIS 19, at *40-41).

In Dauray, the requestors sought documents produced in discovery and filed in the Superior Court, by filing a motion to vacate or modify a probate judge’s protective order pertaining thereto.  2013 WL 372647 at *1-2; 2013 R.I. Super. LEXIS 19, at *1-2.  Such order was entered in the probate court, before appeal to the Superior Court.  Id.  Citing federal law, the court recognized that court documents and judicial records are open to the public and cannot be withheld, but documents produced in discovery are not necessarily public simply because they were filed with the court.  Id. at *38-39 (citing Nixon, 435 U.S. 589; Seattle Times Co. v. Rhinehart, 467 U.S. 20 (1984)).  The court ruled then that “documents that are filed with the court that reasonably may be relied upon in support of any part of the court’s adjudicatory function are judicial documents.”  Id. at *40-41.

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D. Pre-trial motions and records

In civil matters, “[c]ourt records are generally public documents and are subject to supervision by the court. . . . Basically, all court documents are public.”  Providence Journal Co. v. Clerk of Family Court, 643 A.2d 210, 211 (R.I. 1994).  Although the Rhode Island Supreme Court has not addressed what constitutes a “court record,” the Rhode Island Superior Court has adopted the approach that “documents that are filed with the court that reasonably may be relied upon in support of any part of the court‘s adjudicatory function are judicial documents.”  Dauray v. Estate of Mee, No. PB-10-1195, 2013 WL 372647, at *13, 2013 R.I. Super. LEXIS 19, at *40-41 (R.I. Super. Ct. Jan. 23, 2013) (quoting Rosado v. Bridgeport Roman Catholic Diocesan Corp., 970 A.2d 656, 678 (Conn. 2009)).  It also determined that once a document is identified as a “court record”, the scope of the public’s right of access is determined according to a balancing test.  See id. at 2013 WL 372647, at *14-15, 2013 R.I. Super. LEXIS 19, at *48-49 (citing Chicago Tribune Co. v. Bridgestone/Firestone, Inc., 263 F.3d 1304, 1311 (11th Cir. 2001) (“[T]he common law right of access requires a balancing of competing interests.”)). Courts are given broad discretion to balance the interests in disclosure and closure of court records. Id. at 2013 WL 372647 at *15, 2013 R.I. Super. LEXIS 19, at *52 (“Every court has supervisory powers over its own records and files . . .” (quoting Nixon v. Warner Communications, Inc., 435 U.S. 589, 598 (1978)).

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E. Trial records

In civil matters, “[c]ourt records are generally public documents and are subject to supervision by the court. . . . Basically, all court documents are public.”  Providence Journal Co. v. Clerk of Family Court, 643 A.2d 210, 211 (R.I. 1994).  Although the Rhode Island Supreme Court has not addressed what constitutes a “court record,” the Rhode Island Superior Court has adopted the approach that “documents that are filed with the court that reasonably may be relied upon in support of any part of the court‘s adjudicatory function are judicial documents.”  Dauray v. Estate of Mee, No. PB-10-1195, 2013 WL 372647 at *13, 2013 R.I. Super. LEXIS 19, at *40-41 (R.I. Super. Ct. Jan. 23, 2013) (quoting Rosado v. Bridgeport Roman Catholic Diocesan Corp., 970 A.2d 656, 678 (Conn. 2009)).  It also determined that once a document is identified as a “court record”, the scope of the public’s right of access is determined according to a balancing test.  See id. at 2013 WL 372647 at *14-15, 2013 R.I. Super. LEXIS 19, at *48-49 (citing Chicago Tribune Co. v. Bridgestone/Firestone, Inc., 263 F.3d 1304, 1311 (11th Cir. 2001)) (“[T]he common law right of access requires a balancing of competing interests.”)). Courts are given broad discretion to balance the interests in disclosure and closure of court records. Id. at 2013 WL 372647, at *15, 2013 R.I. Super. LEXIS 19, at *52 (“Every court has supervisory powers over its own records and files . . .” (quoting Nixon v. Warner Communications, Inc., 435 U.S. 589, 598 (1978)).

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F. Settlement records

Rhode Island Courts have not addressed the extent to which settlement records are subject to public access.

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G. Post-trial records

Rhode Island Courts have not addressed the extent to which post-trial records are subject to public access.

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H. Appellate records

The Rhode Island Supreme Court has not directly addressed this question.  Supreme Court Rule of Appellate Procedure 16(a) requires filing briefs with the clerk of the Court.  Under the approach adopted by the Rhode Island Superior Court in Dauray v. Estate of Mee, “documents that are filed with the court that reasonably may be relied upon in support of any part of the court’s adjudicatory function are judicial documents.”  No. PB-10-1195,  2013 WL 372647 at *13, 2013 R.I. Super. LEXIS 19, at *40-41 (R.I. Super. Ct. Jan. 23, 2013) (quoting Rosado v. Bridgeport Roman Catholic Diocesan Corp., 970 A.2d 656, 678 (Conn. 2009)).  Under such a standard, appellate documents would likewise be open to public access.  See id.

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I. Other civil court records issues

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VII. Jury and grand jury access

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A. Access to voir dire

The Rhode Island Supreme Court addressed access to voir dire examination in Providence Journal Co. v. Superior Court, 593 A.2d 446, 449 (R.I. 1991).  In that case the Court addressed the closure of the trial court during the individual voir dire examinations of prospective jurors.  Id. at 448.  The Court held that the right of the press and the public to attend voir dire is implied in the First Amendment's ‘core purpose’ of assuring free and open public discussion” and “has been specifically interpreted as including the right of access to the voir dire examination of prospective jurors in a criminal trial.”  Id. (citing Press-Enterprise Co. v. Superior Court, 464 U.S. 501 (1984); United States v. Peters, 754 F.2d 753, 758 (7th Cir. 1985)).  Therefore the Court held that such closures require “balancing . . . the defendant’s Sixth Amendment right to a fair trial against the press and public’s First Amendment right of access.”  Id.  The Court then applied the balancing test established in State v. Cianci, which requires that “any closure ‘(1) must be narrowly tailored to serve the interests sought to be protected, (2) must be the only reasonable alternative, (3) must permit access to those parts of the record not deemed sensitive, and (4) must be accompanied by the trial justice’s specific findings explaining the necessity for the order.’”  Id. at 449 (quoting State v. Cianci, 496 A.2d 139, 144 (R.I. 1985)).  The Court concluded that the trial court failed to consider the four-part inquiry in Cianci, and that therefore closing the courtroom for voir dire “may have been an unconstitutional infringement on the press and public’s right of access to criminal proceedings.”  Id. at 449.  Though this holding was technical—since the trial court utterly failed to consider the appropriate standard—the Court suggested that “[t]he better practice is . . . , rather than closing a portion of the voir dire proceeding in anticipation of privacy concerns, to inform the prospective jurors carefully, in advance, that any of them may request to be questioned privately, in the presence only of court personnel, the parties, and the attorneys,” or “making a transcript of the closed proceedings available within a reasonable time, if the judge determines that disclosure can be accomplished while safeguarding the juror’s valid privacy interests.”  Id. at 449-50 (quoting In re Dallas Morning News Co., 916 F.2d 205, 206-07 (5th Cir. 1990); Press-Enterprise Co., 464 U.S. at 510–11).

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B. Juror identities, questionnaires and other records

In In re Derderian, the Rhode Island Superior Court applied the test from Cianci to deny a newspaper’s request for access to completed preliminary jury questionnaires even after the defendant entered a plea of nolo contendere before the jury was impaneled.  M.P. No.: 06-835, 2006 WL 2942786, at *5-10, 2006 R.I. Super. LEXIS 134, at *14-32 (R.I. Super. Ct. Oct. 12, 2006) (citing State v. Cianci, 496 A.2d 139, 144 (R.I. 1985)).  The Court held that denying access to the juror questionnaires was “necessary and narrowly tailored to protect legitimate governmental interests” in preserving a defendant’s Sixth Amendment right to a fair trial, and that closure would serve this interest by encouraging candor on the part of jurors.  Id. at 2006 WL 2942786, at *10, 2006 R.I. Super. LEXIS 134, at *27.  However, the Court permitted access to a copy of the blank questionnaire.  Id. at 2006 WL 2942786, at *8-9, 2006 R.I. Super. LEXIS 134, at *33.  On review, the Rhode Island Supreme Court dismissed the appeal as moot.  In re Derderian, 972 A.2d 613, 617-18 (R.I. 2009).

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C. Grand jury proceedings and records

Superior Court Rule of Criminal Procedure 6(e) governs the secrecy of grand jury procedures.  It generally requires proceedings and testimony before grand juries to remain secret and lists a number of exceptions to that secrecy.  See Super. Ct. R. Crim. P. 6(e)(3). These exceptions include disclosures ordered by a court “preliminarily to or in connection with a judicial proceeding,” to the defendant for purposes of seeking dismissal of an indictment, when a disclosure of grand jury materials is made by a state attorney to a second grand jury, and to a federal official if a state attorney shows that the materials may disclose a violation of federal law.  See id. at Rule 6(e)(3)(C).

The Rhode Island Supreme Court has recently determined that the exceptions in Rule 6(e) are exclusive and that the Superior Court does not possess the inherent authority to permit disclosure of grand jury materials beyond the reasons specified under the Superior Court Rules of Criminal Procedure.  In Re 38 Studios Grand Jury, 225 A. 3d 224, 2390240 (R.I. 2020).

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D. Interviewing jurors

Rhode Island Courts have not addressed the extent to which the public or media may interview jurors.  The recent case of LMG R.I. Holdings, Inc. v. R.I. Super. Ct. from the U.S. District Court for the District of Rhode Island involved a Superior Court judge who forbade media from interviewing the jurors following a murder trial, and attempted to limit disclosure of a list of jurors to the press.  See No. 18-cv-297-SJM-AKJ, 2019 WL 1865121 at *1 (D.R.I. Apr. 24, 2019).  The judge admitted her error and released the list in the midst of litigation, and the district court ultimately held that the plaintiff, a newspaper publisher, was therefore no longer entitled to relief.  Id. at *2.

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VIII. Proceedings involving minors

Under R.I. Gen. Laws § 14-1-30 which governs the conduct of delinquency and dependency hearings in Family Court, “the general public shall be excluded” and “only an attorney or attorneys, selected by the parents or guardian of a child to represent the child, may attend, and only those other persons shall be admitted who have a direct interest in the case, and as the justice may direct.”  See also Sup. Ct. R., Art. VII, Rule 3 (forbidding media coverage “in respect to juvenile proceedings, adoption proceedings or any other matters in the Family Court in which juveniles are significant participants in the court proceedings”); R.I. R. Juv. P. 56 (forbidding photography, sketches, and radio or television broadcast of juvenile proceedings in Family Court).

In Edward A. Sherman Publishing Co. v. Goldberg, 443 A.2d 1252, 1254-55 (R.I. 1982), the Rhode Island Supreme Court invalidated an order of the Family Court barring a newspaper from attending proceedings involving a minor child murder suspect as a penalty for their having published the name of the suspect, which the newspaper had obtained lawfully.  According to the Court, the state cannot punish the media for publication of lawfully obtained information absent exceptional circumstances.  Id. at 1257 (citing Smith v. Daily Mail Publ’g Co., 443 U.S. 97 (1979)).  However, the Court upheld R.I. Gen. Laws § 14-1-30 as an appropriate exercise of the “right of a state to protect the confidentiality of juvenile proceedings.”  Id. at 1257-58 (citing In Re Gault, 387 U.S. 1, 25 (1967)); see also Sup. Ct. R., Art. VII, Rule 12 (permitting chief judges of Rhode Island courts to exclude particular media representatives or forms of equipment as penalty for violating general orders governing the conduct of media in courtrooms).

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A. Delinquency

R.I. Gen. Laws § 14-1-66 provides:

“Upon written motion by the victim of a crime or his or her attorney, the family court may, in its discretion, and upon good cause shown, divulge the name and address of the juvenile accused of committing the crime solely for the purpose of allowing the victim to commence a civil action against the juvenile and/or his or her parents to recover for damages sustained as a result of the crime[.]”

In Matter of Falstaff Brewing Corp. Re: Narragansett Brewery Fire, the Rhode Island Supreme Court recognized “the legislative intent to afford juveniles the opportunity to enter adulthood free of the stigmatization that follows criminal offenders[,]” yet upheld a request for access to a juvenile’s police file and name under R.I. Gen. Laws § 14-1-66 even though the juvenile was found not delinquent.  See 637 A.2d 1047, 1050-52 (R.I. 1994).  The Court held that because R.I. Gen. Laws § 14-1-66 permits the release of the juvenile’s name, the confidentiality of the juvenile is already breached and there remains “no reasonable basis” for withholding the police records describing the charged crime.  Id. at 1050.  The Court noted that “a finding of delinquency is not a prerequisite to release of a juvenile’s name” under the statute.  Id. at 1050 n.2.

Outside such circumstances, R.I. Gen. Laws § 14-1-64 provides that:

“All police records relating to the arrest, detention, apprehension, and disposition of any juveniles shall be kept in files separate and apart from the arrest records of adults and shall be withheld from public inspection, but the police report relating to the arrest or detention of a juvenile shall be open to inspection and copying upon request . . . by the parent, guardian, or attorney of the juvenile involved. After disposition of an offense and upon execution of an appropriate release . . . records relating to the arrest, detention, apprehension and disposition of the juveniles shall be open to inspection and copying by the parent, guardian, or attorney of the juvenile involved.”

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B. Dependency

Under R.I. Gen. Laws § 14-1-30, which governs the conduct of delinquency and dependency hearings in Family Court, “the general public shall be excluded” and “only an attorney or attorneys, selected by the parents or guardian of a child to represent the child, may attend, and only those other persons shall be admitted who have a direct interest in the case, and as the justice may direct.”  See also Sup. Ct. R., Art. VII, Rule 3 (forbidding media coverage “in respect to juvenile proceedings, adoption proceedings or any other matters in the Family Court in which juveniles are significant participants in the court proceedings”); R.I. R. Juv. P. 56 (forbidding photography, sketch artists, and radio and television broadcast of juvenile proceedings in Family Court).

Rhode Island Courts have not addressed the extent to which dependency proceedings or records are subject to public access.

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C. Other proceedings involving minors

In Providence Journal Co. v. Rodgers, 711 A.2d 1131 (R.I. 1988) the Rhode Island Supreme Court adopted a “dual filing” docket system for criminal cases involving sex crimes against minors in which victims’ names and identifying facts are redacted from public docket in order to protect child victims from further trauma. During the prosecution and disposition of case in which a child is identified as the victim of a child molestation sexual assault, a “public file” and a “confidential court file” shall be maintained.  Id. at 1138.  Two versions of each document are placed on file: one from which all victim-identifying information has been redacted or made fictitious, to be placed in the public file; and a second version of the same document, unredacted, to be placed in the confidential court file.  Id.  The Court held that the procedure was narrowly tailored to serve a compelling interest in protecting child victims of sexual assault.  Id.

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D. Prohibitions on photographing or identifying juveniles

Rhode Island court rules prohibit media coverage “in respect to juvenile proceedings, adoption proceedings or any other matters in the Family Court in which juveniles are significant participants in the court proceedings.” Sup. Ct. R., Art. VII, Rule 3. They also prohibit photography, sketching, and radio and television broadcasting of juvenile proceedings in Family Court. R.I. R. Juv. P. 56.

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E. Minor testimony in non-juvenile courts

In any case in which a person has been charged with sexual assault of a minor and where the minor victim is seventeen years old or younger at the time of trial, the court may permit, upon a showing that such minor would be unable to testify “without suffering unreasonable and unnecessary mental or emotional harm,” that the minor testify in a location other than the courtroom.  R.I. Gen. Laws § 11-37-13.2(a).  In cases where the minor victim is fourteen years old or younger, there is a rebuttable presumption that the minor would be unable to testify “without suffering unreasonable and unnecessary mental or emotional harm.”  Id.  If the judge opts to hold the minor’s testimony in an alternate location, the testimony must be recorded for later showing before the court and/or the jury, or broadcast simultaneously to the courtroom.  Id.  “Only the judge, attorneys for the parties, persons necessary to operate the recording or broadcasting equipment, and any person whose presence would contribute to the welfare and well-being of the child may be present in the room with the child during his or her testimony.”  Id.

The Rhode Island Supreme Court has held that, save for the presumption that children under a certain age are per se unavailable to testify, this statute is generally constitutional.  See State v. Taylor, 562 A.2d 445, 453 (R.I. 1989).  The Court also clarified that suffering “unreasonable and unnecessary mental or emotional harm,” must mean that the child is “unavailable to testify” because they are unable to do so without suffering such harm, that this unavailability must be shown through clear and convincing evidence, and that most cases would require an attempt to have the child first testify in open court.  Id.  The Court has also ruled that this statute does not permit a judge to close the courtroom to facilitate a minor victim’s testimony, only to have the minor’s testimony held in a second location.  See State v. Barkmeyer, 949 A.2d 984, 1001-02 (R.I. 2008).

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IX. Special proceedings

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A. Tribal Courts in the jurisdiction

Rhode Island Courts have not addressed the extent to which proceedings in tribal courts are subject to public access.

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B. Probate

In Dauray v. Estate of Mee, the Rhode Island Superior Court addressed a motion to modify a protective order entered by a probate judge despite the fact that the order had not been properly appealed to the Superior Court.  See No. PB-10-1195, 2013 WL 372647, at *8, 2013 R.I. Super. LEXIS 19, at *22 (R.I. Super. Ct. Jan. 23, 2013).  However, the Court’s analysis finding that the requested records were “judicial records,” is likely to be highly persuasive in an attempt to access similar records at the probate court level.  This is bolstered by the fact that Rhode Island law makes the Rhode Island Superior Court Rules of Civil Procedure optionally applicable in probate court proceedings.  R.I. Gen. Laws § 33-22-19.2(c) (“In all contested matters, the Rhode Island Superior Court Rules of Civil Procedure may be applied.”).

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C. Competency and commitment proceedings

Rhode Island courts have not addressed the extent to which competency and commitment proceedings and records are subject to public access.

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D. Attorney and judicial discipline

Rule 6 of the Rules of the Rhode Island Supreme Court Ethics Advisory Panel provides that “[t]he name and letter of an inquiring attorney, the Panel's proceedings considering requests for advice and the advisory opinion letter to the inquiring attorney shall be confidential.”  Similarly, Rule 21 of Article III of the Supreme Court Rules, which governs disciplinary procedure for attorneys, provides that “[a]ll proceedings involving allegations of misconduct by or incapacity of an attorney shall be kept confidential until and unless a probable cause determination has been made by the Board, except where the proceeding is predicated upon a conviction of the respondent-attorney for a crime.”  Rule 21 goes on to state that after a probable cause determination, “the petition for formal disciplinary action and the attorney’s written answer shall be public documents,” except that “the Chief Disciplinary Counsel or [the] respondent-attorney” may move to redact then name of the initial complainant.  No reported Rhode Island cases have examined the confidentiality of either attorney discipline or attorney advisory opinions.

In In re Access to Certain Records of R.I. Advisory Comm. on the Code of Judicial Conduct, 637 A.2d 1063 (R.I. 1994), the Rhode Island Supreme Court addressed a request for records upon which an advisory opinion by the Advisory Committee on the Code of Judicial Conduct was based.  Although the request was under the Rhode Island Access to Public Records Act, R.I. Gen. Laws § 32-2-1 et seq., the Court analyzed the public access issue under the common law right of access to court records, citing the Court’s inherent discretion to manage its own records.  Id. at 1066 (citing Nixon v. Warner Communications, Inc., 435 U.S. 589, 598-99 (1978)).  The Court went on to hold that, because the Code of Judicial Conduct gives judges who request advisory opinions a conclusive presumption of having acted appropriately, the public’s interest in those decisions and the records supporting them is great enough to require that judicial advisory opinions be published in unredacted form, and to further require that unredacted supporting documents be provided upon request.  Id. at 1066-67.  However, the Court also chose to apply this relief prospectively only, in light of the fact that requests made prior to the Court’s ruling were made with an understandable expectation of privacy.  See id. at 1066.  The Court did require that such advisory letters be published in redacted form.  See id. at 1066-67.

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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

Rhode Island courts have not directly addressed the issue of media standing to challenge third-party gag orders.

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B. Gag orders on the press

The Rhode Island Supreme Court has warned that “[w]hen issuing orders that may amount to a prior restraint on publication, we caution trial justices to follow the guidelines set forth in Nebraska Press and Cianci.”  In re Court Order Dated October 22, 2003, 886 A.2d 342, 351 (R.I. 2005) (citing Nebraska Press Ass’n v. Stuart, 427 U.S. 539 (1976); State v. Cianci, 496 A.2d 139 (R.I. 1985)).  Rhode Island courts have relied on federal case law on this subject, following the Supreme Court’s statement that “‘[a]ny system of prior restraints of expression comes to this Court bearing a heavy presumption against its constitutional validity[.]’”  State v. Berberian, 427 A.2d 1298, 1300 (R.I. 1981) (quoting Nebraska Press, 427 U.S. at 593).

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C. Gag orders on participants

The Rhode Island Supreme Court has warned that “[w]hen issuing orders that may amount to a prior restraint on publication, we caution trial justices to follow the guidelines set forth in Nebraska Press and Cianci.”  In re Court Order Dated October 22, 2003., 886 A.2d 342, 351 (R.I. 2005) (citing Nebraska Press Ass’n v. Stuart, 427 U.S. 539 (1976) and State v. Cianci, 496 A.2d 139 (R.I. 1985)).  Rhode Island courts have relied on federal case law on this subject, following the Supreme Court’s statement that “‘[a]ny system of prior restraints of expression comes to this Court bearing a heavy presumption against its constitutional validity[.]’”  State v. Berberian, 427 A.2d 1298, 1300 (R.I. 1981) (quoting Nebraska Press, 427 U.S. at 593).

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D. Interviewing judges

Rhode Island courts have not directly addressed this.

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XI. Other issues

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A. Interests often cited in opposing a presumption of access

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B. Cameras and other technology in the courtroom

The Rhode Island Supreme Court has promulgated Article VII of the Supreme Court Rules, which governs the activities of the “media” in covering “court proceedings.”  See Sup. Ct. R., Art. VII, Rules 2, 3. “Media” is defined to include “persons engaged in televising, broadcasting, videotaping and/or photographing (either with still or motion picture camera) of court proceedings.”  See Sup. Ct. R., Art. VII, Rule 2.  “Persons engaged in taking written notes for the printed press” are not included in the general definition of “media” except where separately indicated in Article VII.  Id.  “Court proceedings” is defined to include “all judicial proceedings in the Supreme Court, Superior Court, District Court, Workers’ Compensation Court and Family Court,” though “media coverage shall not be permitted in respect to juvenile proceedings, adoption proceedings or any other matters in the Family Court in which juveniles are significant participants in the court proceedings.”  See Sup. Ct. R., Art. VII, Rule 3.

Under Article VII, “televising, photographing or broadcasting” is only permitted in courtrooms, while court proceedings are taking place.  See Sup. Ct. R., Art. VII, Rule 3(a).  Televising, photographing, or broadcasting is forbidden in courthouse corridors or other parts of courthouses other than inside of a courtroom, and are forbidden during recesses or other times when court is not in session.  See id.  Additionally, televising or broadcasting hearings which take place outside the presence of a jury is forbidden “[d]uring or immediately preceding a jury trial.”  See id. at Rule 3(b).  The rule lists as examples of hearings which may not be televised “motions to suppress evidence, motions for judgment of acquittal or directed verdict, hearings to determine competence or relevance of evidence, motions in limine, and motions to dismiss for legal inadequacy of the indictment, information or complaint (criminal or civil).”  Id.  No reported case has determined when a matter can be said to be “immediately preceding a jury trial.”

Aside from these prohibitions, the majority of the rules in Article VII focus on the methods and conduct of broadcasting court proceedings.  No more than one camera operated by a single camera person is permitted to record trial court proceedings, and only two cameras operated by one camera person each are permitted to record appellate proceedings.  See Sup. Ct. R., Art. VII, Rule 4(a).  Likewise, only one still photographer is permitted to take photographs of trial or appellate proceedings, and the photographer is limited to two cameras with two sets of lenses for each camera.  Id. at Rule 4(b).  Only one audio recording system is permitted, which must either record using the courtroom’s existing microphone systems or must use microphones and wiring to be installed “unobtrusively” in areas “designated in advance of any proceeding by the trial justice.”  Id. at Rule 4(c).  Article VII recognizes that these limitations may require media to reach “‘pooling’ arrangements” and places the onus of doing so on the media—in the event that media outlets cannot reach their own agreements, Rule 4 states that “the trial justice shall exclude all contesting media personnel from a proceeding,” rather than mediate the dispute.  Id. at Rule 4(d).

Equipment that produces any “distracting sound or light” or that uses artificial light to record or photograph judicial proceedings is forbidden, as is the use of camera lights or camera flashes.  See id. at Rule 5(a), (b).  Still cameras may not produce “greater sound or light than a 35mm Leica ‘M’ Series Rangefinder camera.”  See id. at Rule 5(b).  Media personnel who wish to photograph or take video recordings of court proceedings must “obtain advance judicial approval for equipment,” and they have an affirmative duty to demonstrate to the trial justice that their equipment will meet with the requirements of Rule 5.  See id. at Rule 5(c).  That said, the trial justice or presiding justice using a particular courtroom may approve changes to courtroom lighting “provided that such modifications or additions are installed and maintained without public expense, and further providing that such modifications and additions are approved by the appropriate building authorities for safety and compatibility with electrical services established in such facilities.”  See id. at Rule 8.

The trial justice—or, for courtrooms which are “used by a number of trial justices for limited periods,” the presiding justice or chief judge of the respective court—shall designate the places where cameras and still photographers may be placed, and requires that those individuals not move themselves, move any fixed equipment (including microphones), or act to draw attention to themselves during court proceedings.  See id. at Rule 6(a), (b), & (c); see also Rule 7 (additionally forbidding changing of still or video camera lenses or film except prior to court proceedings or during recesses).  These designated locations “shall provide reasonable access to coverage.”  See id. at Rules 6(b), 6(c).  Additionally, the court may designate areas “remote from the court facility which provide reasonable access to coverage” for video and audio recording, and may limit all video and audio recording to those areas.  See id. at Rule 5(a).  “Video tape recording equipment which is not a component part of a television camera shall be located in an area remote from the court facility.”  Id.

It is forbidden to record or broadcast conferences between attorneys and their clients, between co-counsel of clients, or between counsel and the trial justice.  See id. at Rule 9.  It is also forbidden to photograph, broadcast, or televise prospective jurors during voir dire, or to photograph or broadcast individual impaneled jurors without their consent.  See id. at Rule 10.  If the designated camera or photography sections of courtrooms make it impossible to photograph or broadcast the proceedings without including the jurors as part of the “unavoidable background,” it is permissible for the jurors to be in the frame, but “closeups that clearly identify individual jurors are prohibited. Trial justices shall enforce this rule for the purpose of providing maximum protection of juror anonymity.”  Id.

Though Article VII regulates the ability of the media to record and photograph court proceedings, nothing in Article VII guarantees that access in any particular case.  See id. at Rule 1 (preserving authority of trial justice to control the conduct of judicial proceedings and the inclusion or exclusion of the press or the public from proceedings), Rule 11 (authorizing the trial justice to limit the photographing or recording of any participant and to exclude all media coverage over a given case).  Under Rule 11, a trial justice’s decision to preclude the recording, photographing, or broadcasting of any given trial, proceeding, or participant in a trial or proceeding, is left to the justice’s sole discretion and is not subject to appeal or review of any kind.  See id. at Rule 11.  Likewise, under Rule 12 “[t]he Chief Justice of the Supreme Court, the Presiding Justice of the Superior Court, the Chief Judges of the Family, District or Workers' Compensation Courts, or the Chief Magistrate of the Rhode Island Traffic Tribunal may in their discretion issue special orders concerning the conduct or presence of media representatives and/or equipment in areas of the courthouse outside a particular courtroom that is subject to the control of the trial justice or magistrate.”  These orders include restrictions on vehicle parking and limitations on placing equipment “on land or sidewalks contiguous to a courthouse.”  Id. at Rule 12.  These orders may be enforced by the exclusion of “media representatives and/or equipment” for any length of time the respective judge deems appropriate in their discretion, including for the length of a particular trial or proceeding.

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C. Tips for covering courts in the jurisdiction

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