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Tennessee

Open Courts Compendium

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Author

Kamesha Laurry, the Reporters Committee's Borealis Racial Equity in Journalism Fund Legal Fellow, and Paul McAdoo, RCFP's Local Legal Initiative staff attorney for Tennessee.

Updated October 2021

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I. Introduction: Access rights in the jurisdiction

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A. The roots of access rights

Tennessee courts have long recognized that judicial proceedings and records are presumptively open. The public’s presumptive right of access to judicial proceedings and records has three sources: 1) the common law; 2) the First Amendment to the federal Constitution; and 3) Article I, Sections 17 and 19 of the Tennessee Constitution. Moreover, “[t]he Sixth Amendment to the United States Constitution and Article I, Section 9 of the Tennessee Constitution afford an accused the right to a ‘public trial.’”  State v. Schiefelbein, 230 S.W.3d 88, 114 (Tenn. 2007) (citations omitted).   The constitutional right to a public trial “is regarded as a ‘shared right of the accused and the public, the common concern being the assurance of fairness.’”  Id. (quoting Press Enterprise Co. v. Superior Court, 478 U.S. 1, 7 (1986)).

The public has a qualified common law and constitutional right based on the First Amendment to attend “judicial proceedings and to examine the documents generated in those proceedings.” Knoxville News-Sentinel v. Huskey, 982 S.W.2d 359, 362 (Tenn. Crim. App. 1998). “Article I, Sec. 19 of the Constitution of Tennessee presumably extends a similar qualified right to the public.”  Id. at 363 n. 3.  Furthermore, Article I, Section 17 of the Tennessee Constitution recognizes the public right of access to court proceedings by explicitly providing that “all courts shall be open.” In re NHC-Nashville Fire Litigation, 293 S.W. 3d 547, 560 (Tenn. App. 2008) (citing TN CONST Art. 1, § 17A).

However, the Tennessee Supreme Court has acknowledged that the right of access is not absolute. State v. Drake, 701 S.W.2d 604, 607-08 (Tenn. 1985).

The presumption of openness may be overcome only by an overriding interest based on findings that closure is essential to preserve higher values and is narrowly tailored to serve that interest.  The interest is to be articulated along with findings specific enough that a reviewing court can determine whether the closure order was properly entered.

Id. at 607 (quoting Waller v. Georgia, 467 U.S. 39, 45 (1984) (quoting Press-Enterprise Co. v. Superior Court, 464 U.S. 501, 506 (1984)).  The Tennessee Supreme Court has also held that Tennessee’s public records law “is essentially a codification” of the common law right of access.  Ballard v. Herzke, 924 S.W.2d 652, 661 (Tenn. 1996).

Issues related to cameras in the courtroom are governed by Tennessee Supreme Court Rule 30.

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B. Overcoming a presumption of openness

The Tennessee Supreme Court has adopted the same standard as the U.S. Supreme Court when it comes to overcoming the presumption of openness to courts:

The presumption of openness may be overcome only by an overriding interest based on findings that closure is essential to preserve higher values and is narrowly tailored to serve that interest.  The interest is to be articulated along with findings specific enough that a reviewing court can determine whether the closure order was properly entered.

State v. Drake, 701 S.W.2d 604, 607 (Tenn. 1985) (quoting Waller v. Georgia, 467 U.S. 39, 45 (1984) (quoting Press-Enterprise Co. v. Superior Court, 464 U.S. 501, 506 (1984)); see also King v. Jowers, 12 S.W.3d 410, 411-12 (Tenn. 1999) (citing to Drake when adopting its logic for civil voir dire proceedings). Put another way:

[T]he party seeking to close the hearing must advance an overriding interest that is likely to be prejudiced, the closure must be no broader than necessary to protect that interest, the trial court must consider reasonable alternatives to closing the proceeding, and it must make findings adequate to support the closure.

Id. at 608 (quoting Waller, 467 U.S. at 48).  This standard applies to access to both court proceedings and court records.  In re NHC-Nashville Fire Litigation, 293 S.W. 3d 547, 560 (Tenn. App. 2008) (citing Knoxville News-Sentinel v. Huskey, 982 S.W.2d 359, 362-63 (Tenn. Crim. App. 1998)).

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C. Procedural prerequisites to closure

In Tennessee, the Supreme Court listed the process and principles that are required when a closure or restrictive order is sought.  State v. Drake, 701 SW 2d 604, 608-09 (Tenn. 1985).

When closure orders are sought, “if any evidence or advocacy is offered in opposition, it will likely be on behalf of media entities.”  Id.  The Supreme Court noted that even if no one opposed a closure motion, “it is the duty of the trial judge to require the movant to advance an overriding interest that is likely to be prejudiced, consider reasonable alternatives to closing the proceedings, tailor any closure order so that it is no broader than necessary to protect that interest, and make findings adequate to support the closure.”  Id.

The Tennessee Supreme Court requires that a motion for a closure order be “made in writing, specifying the basis for and the extent of closure or other restrictions sought.”  Id.  Motions for closure orders are given expedited hearings by the trial judge.  However, motions for closures can only be heard by the trial court if the motion was on “on file in the clerk's office for a period of at least three days.”  Id.  Courts will allow interested members of the public and media to intervene if they oppose the motion.  Id.  Once a motion for hearing is set, the date and time will be entered on the clerk's docket of the case in the clerk's office and no additional notice need be given.”  Id.

At the hearing, the trial judge has discretion to order portions of the hearing closed if they find it “necessary to avoid disclosure of prejudicial material.”  Id.  Members of the public can request transcripts of the proceedings of the hearings on a motion for closure or subsequent pre-trial or trial proceedings that are closed to the public. The transcripts “shall be made available to the public at the earliest time consistent with preservation of the interests that require disclosure and also available for the limited purpose of appeal.”  Id.

Once an order of closure is granted, the trial judge shall “articulate the specific facts upon which he has based a finding that closure is essential to preserve the moving party's interest and his finding that no alternatives to closure will adequately protect that interest.”  Id.  The trial judge’s “decision on closure motions must be rendered promptly.”  Id.

The Tennessee Supreme Court requires that all orders of closure be served at least seven days before any proceedings to give parties the opportunity of prompt appellate review.  “Appellate review shall be available to intervening parties as provided in Rule 10, T.R.A.P. from the trial court to the Court of Criminal Appeals, and, if necessary, to this Court. Such review is appropriate because if the trial judge is in error in issuing the closure order the intervening party will lose a right or interest that may never be recaptured.”  Id.

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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

Tennessee courts “have ‘firmly established[d] the right of the public, including the media, to intervene in court proceedings for the purpose of attending the proceedings, or for the purpose of petitioning the Court to unseal documents and allow public inspection of them.’”  Kocher v. Bearden, 546 S.W.3d 78, 84 (Tenn. Ct. App. 2017) (quoting Knoxville News-Sentinel v. Huskey, 982 S.W.2d 359, 362 (Tenn. Ct. Crim. App. 1998)).  In Ballard v. Herzke, the Tennessee Supreme Court held that “we agree with those federal and state courts in other jurisdictions which have routinely found that third parties, including media entities, should be allowed to intervene to seek modification of protective orders to obtain access to judicial proceedings or records.”  924 S.W.2d 652, 657 (Tenn. 1996) (string cite omitted); see also State v. Drake, 701 S.W.2d 604, 608 (Tenn. 1985) (“Interested members of the public and the media may intervene and be heard in opposition to [a closure] motion.”).  Similarly, the Tennessee Court of Criminal Appeals has explained that “because of the general public right of access to courts and their records, it is appropriate to allow media entities to intervene in court proceedings wherein the intervenors seek modification of a court order sealing judicial records from public inspection.”  Knoxville News-Sentinel, 982 S.W.2d at 362 (citing Ballard, 924 S.W.2d at 662).

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B. Procedure for requesting access in criminal cases

A party may intervene in a case to seek access to a court proceeding or court records.  State v. Drake, 701 S.W.2d 604, 608 (Tenn. 1985) (“Interested members of the public and the media may intervene and be heard in opposition to [a closure] motion.”); see also Knoxville News-Sentinel v. Huskey, 982 S.W.2d 359, 362 (Tenn. Ct. Crim. App. 1998) (“[B]ecause of the general public right of access to courts and their records, it is appropriate to allow media entities to intervene in court proceedings wherein the intervenors seek modification of a court order sealing judicial records from public inspection.” (citation omitted)).

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C. Procedure for requesting access in civil matters

A party may intervene in a case to seek access to a court proceeding or court records.  State v. Drake, 701 S.W.2d 604, 608 (Tenn. 1985) (“Interested members of the public and the media may intervene and be heard in opposition to [a closure] motion.”); see also Ballard v. Herzke, 924 S.W.2d 652, 657 (Tenn. 1996) (holding that “we agree with those federal and state courts in other jurisdictions which have routinely found that third parties, including media entities, should be allowed to intervene to seek modification of protective orders to obtain access to judicial proceedings or records.” (string cite omitted)); Kocher v. Bearden, 546 S.W.3d 78, 84 (Tenn. Ct. App. 2017) (explaining that Tennessee courts “have ‘firmly established[d] the right of the public, including the media, to intervene in court proceedings for the purpose of attending the proceedings, or for the purpose of petitioning the Court to unseal documents and allow public inspection of them.’” (citation omitted)).

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D. Obtaining review of initial court decisions

The Tennessee Supreme Court has explained that appellate review of closure order is available to an intervenor seeking access pursuant to Tenn. R. App. P. 10.  State v. Drake, 701 S.W.2d 604, 608 (Tenn. 1985).  The reason for permitting such review is “because if the trial judge is in error in issuing the closure order the intervening party will lose a right or interest that may never be recaptured.”  Id. (citation omitted).   Appeals of civil cases should be to the Tennessee Court of Appeals and appeals for criminal cases should be to the Tennessee Court of Criminal Appeals.

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III. Access to criminal proceedings

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A. In general

The Tennessee Supreme Court has recognized that the press and the public have a qualified right to attend pre-trial and trial proceedings in criminal cases.  State v. Drake, 701 S.W.2d 604, 607 (Tenn. 1985).

[T]he party seeking to close the hearing must advance an overriding interest that is likely to be prejudiced, the closure must be no broader than necessary to protect that interest, the trial court must consider reasonable alternatives to closing the proceeding, and it must make findings adequate to support the closure.

Id. at 608 (quoting Waller v. Georgia, 467 U.S. 39, 48 (1984)); see also Poole v. Union Planters Bank, N.A., 337 S.W.3d 771. 780-81 (Tenn. Ct. App. 2010) (explaining that “[p]arties cannot agree … to close a trial to the public or press absent an overriding interest”).

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B. Pretrial proceedings

Relying on the U.S. Supreme Court's decision in Waller v. Georgia, 467 U.S. 39, 45 (1984), Tennessee courts have recognized that the public’s qualified right of access to criminal cases includes pretrial proceedings. State v. Drake, 701 S.W. 2d 604, 607-08 (Tenn. 1985).

[T]he party seeking to close the hearing must advance an overriding interest that is likely to be prejudiced, the closure must be no broader than necessary to protect that interest, the trial court must consider reasonable alternatives to closing the proceeding, and it must make findings adequate to support the closure.

Id. at 608 (quoting Waller v. Georgia, 467 U.S. 39, 48 (1984)).  “These are the principles that must be applied in Tennessee when a closure or other restrictive order is sought.”  Id.

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C. Criminal trials

Relying on the U.S. Supreme Court's decision in Waller v. Georgia, 467 U.S. 39, 45 (1984), Tennessee courts have recognized that the public’s qualified right of access to criminal cases includes trial proceedings. State v. Drake, 701 S.W. 2d 604, 607-08 (Tenn. 1985).

[T]he party seeking to close the hearing must advance an overriding interest that is likely to be prejudiced, the closure must be no broader than necessary to protect that interest, the trial court must consider reasonable alternatives to closing the proceeding, and it must make findings adequate to support the closure.

Id. at 608 (quoting Waller v. Georgia, 467 U.S. 39, 48 (1984)).  “These are the principles that must be applied in Tennessee when a closure or other restrictive order is sought.”  Id.

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D. Post-trial proceedings

Tennessee courts have not specifically addressed whether the public right of access to criminal trials and pre-trial hearings extends to post-trial proceedings.  However, in State v. Drake, the Tennessee Supreme Court held that its ruling in that case “applied in Tennessee when a closure or other restrictive order is sought.”  701 S.W.2d 604, 608 (Tenn. 1985).

[T]he party seeking to close the hearing must advance an overriding interest that is likely to be prejudiced, the closure must be no broader than necessary to protect that interest, the trial court must consider reasonable alternatives to closing the proceeding, and it must make findings adequate to support the closure.

Id. at 608 (quoting Waller v. Georgia, 467 U.S. 39, 48 (1984)).  There is no reason to believe this rule would not apply in post-trial proceedings.

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E. Appellate proceedings

Tennessee courts have not specifically addressed whether the public right of access to criminal trials and pre-trial hearings extends to appellate proceedings.  However, in State v. Drake, the Tennessee Supreme Court held that its ruling in that case “applied in Tennessee when a closure or other restrictive order is sought.”  701 S.W.2d 604, 608 (Tenn. 1985).

[T]he party seeking to close the hearing must advance an overriding interest that is likely to be prejudiced, the closure must be no broader than necessary to protect that interest, the trial court must consider reasonable alternatives to closing the proceeding, and it must make findings adequate to support the closure.

Id. at 608 (quoting Waller v. Georgia, 467 U.S. 39, 48 (1984)).  This same rule should apply in appellate proceedings.

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IV. Access to criminal court records

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A. In general

“The Tennessee Supreme Court has recognized a qualified right of the public, founded in the common law and the First Amendment to the United States Constitution to attend judicial proceedings and to examine the documents generated in those proceedings.”  Knoxville News-Sentinel v. Huskey, 982 S.W.2d 359, 362 (Tenn. Crim. App. 1998) (citing Ballard v. Herzke, 924 S.W.2d 652, 661 (Tenn. 1996).  “Article I, Sec. 19 of the Constitution of Tennessee presumably extends a similar qualified right to the public.”  Id. at 363 n. 3.  Pursuant to these rights, judicial records are … presumptively open.”  Autin v. Goetz, 524 S.W.3d 617, 619 (Tenn. Ct. App. 2017) (citations omitted).

The Tennessee Supreme Court has explained that that the legal principles outlined in Waller v. Georgia, 467 U.S. 39 (1984) and Press-Enterprise Co. v. Superior Court, 464 U.S. 501 (1984), apply “in Tennessee when a closure or other restrictive order is sought.”  State v. Drake, 701 S.W.2d 604, 607-08 (Tenn. 1985).  The Drake Court quoted Waller and explained that:

The presumption of openness may be overcome only by an overriding interest based on findings that closure is essential to preserve higher values and is narrowly tailored to serve that interest.  The interest is to be articulated with findings specific enough that a reviewing court can determine whether the closure order was properly entered.

Id. at 607 (quoting Waller, 467 U.S. at 45).  The Tennessee Criminal Court of Appeal has held that Drake applies “[w]hen a trial court issues a restrictive order denying the public access to judicial proceedings or documents.”   State v. Cobbins, No. E2013-02726-CCA-WR-CO, at *14 (Tenn. Crim. App. Feb. 4, 2015); see also State v. Koulis, No. I-CD111479, at 1-2 (Tenn. Crim. Ct. June 5, 2006) (slip opinion) (Rule 9 appeal denied July 28, 2006) (applying Drake to decide sealed court record issue in criminal case).

In the criminal context, the public’s right of access to court records “must be balanced against other interests such as a criminal defendant’s right to a fair trial.”  Huskey, 982 S.W.2d at 362-63 (citing Drake, 701 S.W. 2d at 607).  In this balancing process, “any restriction on public access must be narrowly tailored to accommodate the competing interest without unduly impeding the flow of information.”  Id. (citing Drake, 701 S.W.2d at 607).

In a 2015 unpublished opinion, the Tennessee Court of Criminal Appeals took a narrower view of the right of access to court records.  In State v. Cobbins, the parents of the victim sought access to sealed court records.  No. E2013-02726-CCA-WR-CO, at *5 (Tenn. Crim. App. Feb. 4, 2015).   The court held that there was no First Amendment right of access “to irrelevant and extraneous documents or materials that may be unearthed by the parties in a criminal proceeding and upon which the trial court or the trier of fact do not rely in determining a party’s rights.”  Id. at *15.  The court in Cobbins similarly held that filed materials that were not considered by the judge in making a ruling were not subject to the common law right of access to judicial records.  Id. at *16-17.

Cobbins also held that the common law right of access to judicial records was subsumed within Tennessee’s public records act.  Id. at *11.  Under the state’s public records laws, the act of filing is what generally creates a judicial record under it.  Id. (citing Ballard, 924 S.W.2d 652, 661-62 Tenn. 1996); Tenn. Code Ann. § 10-7-403).  As a result, unfiled discovery is not considered a judicial record under Tennessee’s public records laws.  Id. (citing In re NHC, 293 S.W.3d at 570).

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I. Appellate records

“Documents previously filed under seal in the trial court pursuant to a specific order of the trial court remain under seal in [the Court of Appeals].  Tenn. Ct. App. R. 15(b)(i).  However, ‘[f]or a document to be filed under seal in the appellate court pursuant to subdivision (b), the trial court must have made an individual determination that the particular document should be filed under seal.’”  Doe v. Brentwood Academy Inc., 578 S.W.3d 50, 52-53 (Tenn. Ct. App. 2018) (quoting Tenn. Ct. App. R. 15(b)(ii)).

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H. Post-trial records

Founded in common law and the First Amendment to the United States Constitution, the “The Tennessee Supreme Court has recognized a qualified right of the public, founded in the common law and the First Amendment to the United States Constitution to attend judicial proceedings and to examine the documents generated in those proceedings.”  Knoxville News-Sentinel v. Huskey, 982 S.W.2d 359, 362 (Tenn. Crim. App. 1998) (citing Ballard v. Herzke, 924 S.W.2d 652, 661 (Tenn. 1996);

The Tennessee Supreme Court has explained that that the legal principles outlined in Waller v. Georgia, 467 U.S. 39 (1984) and Press-Enterprise Co. v. Superior Court, 464 U.S. 501 (1984), apply “in Tennessee when a closure or other restrictive order is sought” in a criminal case.  State v. Drake, 701 S.W.2d 604, 607-08 (Tenn. 1985).  The Court quoted Waller and explained that:

The presumption of openness may be overcome only by an overriding interest based on findings that closure is essential to preserve higher values and is narrowly tailored to serve that interest.  The interest is to be articulated with findings specific enough that a reviewing court can determine whether the closure order was properly entered.

Id. at 607 (quoting Waller, 467 U.S. at 45).  The Tennessee Criminal Court of Appeal has held that Drake applies “[w]hen a trial court issues a restrictive order denying the public access to judicial proceedings or documents.”   State v. Cobbins, No. E2013-02726-CCA-WR-CO, at *14 (Tenn. Crim. App. Feb. 4, 2015); see also State v. Koulis, No. I-CD111479, at 1-2 (Tenn. Crim. Ct. June 5, 2006) (slip opinion) (Rule 9 appeal denied July 28, 2006) (applying Drake to decide sealed court record issue in criminal case).

In the criminal context, the public’s right of access to court records “must be balanced against other interests such as a criminal defendant’s right to a fair trial.”  Huskey, 982 S.W.2d at 362-63 (citing Drake, 701 S.W. 2d at 607).  In this balancing process, “any restriction on public access must be narrowly tailored to accommodate the competing interest without unduly impeding the flow of information.”  Id. (citing Drake, 701 S.W.2d at 607).

In a 2015 unpublished opinion, the Tennessee Court of Criminal Appeals took a more narrow view of the right of access to court records related to a post-trial request for a new trial.  In State v. Cobbins, the parents of the victim sought access to sealed court records that were part of the defendant’s request for a new trial.  No. E2013-02726-CCA-WR-CO, at *5 (Tenn. Crim. App. Feb. 4, 2015). Specifically, the parents sought access to an unredacted Tennessee Bureau of Investigation file “on its investigation into the misconduct of the original trial judge” in the case.  Id. at *2-3.  The entire file was provided to the court “so that [it] could determine whether it contained potentially exculpatory information to which the defendants would be entitled under Brady v. Maryland, 373 U.S. 83 (1963).”  Id. at *2.  The trial court entered both a redacted and unredacted version of the TBI file as exhibits in each of the defendants’ cases.  Id. at *3.  The trial court explained that the redacted version was the one that it relied upon in deciding the motions for new trial and that the redactions it made were “because the information contained in there has no business being in the public domain and is not relevant at all to any of the issues that are pertinent to this case.”  Id. at *3-4.

The Court of Criminal Appeals held that there was no First Amendment right of access “to irrelevant and extraneous documents or materials that may be unearthed by the parties in a criminal proceeding and upon which the trial court or the trier of fact do not rely in determining a party’s rights.”  Id. at *15.  The court in Cobbins similarly held that filed materials that were not considered by the judge in making a ruling were not subject to the common law right of access to judicial records.  Id. at *16-17.

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G. Trial records

Founded in common law and the First Amendment to the United States Constitution, “[t]he Tennessee Supreme Court has recognized a qualified right of the public, founded in the common law and the First Amendment to the United States Constitution to attend judicial proceedings and to examine the documents generated in those proceedings.”  Knoxville News-Sentinel v. Huskey, 982 S.W.2d 359, 362 (Tenn. Crim. App. 1998) (citing Ballard v. Herzke, 924 S.W.2d 652, 661 (Tenn. 1996).

The Tennessee Supreme Court has explained that that the legal principles outlined in Waller v. Georgia, 467 U.S. 39 (1984) and Press-Enterprise Co. v. Superior Court, 464 U.S. 501 (1984), apply “in Tennessee when a closure or other restrictive order is sought” in a criminal case.  State v. Drake, 701 S.W.2d 604, 607-08 (Tenn. 1985).  The Court quoted Waller and explained that:

The presumption of openness may be overcome only by an overriding interest based on findings that closure is essential to preserve higher values and is narrowly tailored to serve that interest.  The interest is to be articulated with findings specific enough that a reviewing court can determine whether the closure order was properly entered.

Id. at 607 (quoting Waller, 467 U.S. at 45).  The Tennessee Criminal Court of Appeal has held that Drake applies “[w]hen a trial court issues a restrictive order denying the public access to judicial proceedings or documents.”   State v. Cobbins, No. E2013-02726-CCA-WR-CO, at *14 (Tenn. Crim. App. Feb. 4, 2015); see also State v. Koulis, No. I-CD111479, at 1-2 (Tenn. Crim. Ct. June 5, 2006) (slip opinion) (Rule 9 appeal denied July 28, 2006) (applying Drake to decide sealed court record issue in criminal case).

In the criminal context, the public’s right of access to court records “must be balanced against other interests such as a criminal defendant’s right to a fair trial.”  Huskey, 982 S.W.2d at 362-63 (citing Drake, 701 S.W. 2d at 607).  In this balancing process, “any restriction on public access must be narrowly tailored to accommodate the competing interest without unduly impeding the flow of information.”  Id. (citing Drake, 701 S.W.2d at 607).

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F. Pretrial motions and records

“The Tennessee Supreme Court has recognized a qualified right of the public, founded in the common law and the First Amendment to the United States Constitution to attend judicial proceedings and to examine the documents generated in those proceedings.”  Knoxville News-Sentinel v. Huskey, 982 S.W.2d 359, 362 (Tenn. Crim. App. 1998) (citing Ballard v. Herzke, 924 S.W.2d 652, 661 (Tenn. 1996).

The Tennessee Supreme Court has explained that that the legal principles outlined in Waller v. Georgia, 467 U.S. 39 (1984) and Press-Enterprise Co. v. Superior Court, 464 U.S. 501 (1984), apply “in Tennessee when a closure or other restrictive order is sought” in a criminal case.  State v. Drake, 701 S.W.2d 604, 607-08 (Tenn. 1985).  The Court quoted Waller and explained that:

The presumption of openness may be overcome only by an overriding interest based on findings that closure is essential to preserve higher values and is narrowly tailored to serve that interest.  The interest is to be articulated with findings specific enough that a reviewing court can determine whether the closure order was properly entered.

Id. at 607 (quoting Waller, 467 U.S. at 45).  The Tennessee Criminal Court of Appeal has held that Drake applies “[w]hen a trial court issues a restrictive order denying the public access to judicial proceedings or documents.”   State v. Cobbins, No. E2013-02726-CCA-WR-CO, at *14 (Tenn. Crim. App. Feb. 4, 2015); see also State v. Koulis, No. I-CD111479, at 1-2 (Tenn. Crim. Ct. June 5, 2006) (slip opinion) (Rule 9 appeal denied July 28, 2006) (applying Drake to decide sealed court record issue in criminal case).

In the criminal context, the public’s right of access to court records “must be balanced against other interests such as a criminal defendant’s right to a fair trial.”  Huskey, 982 S.W.2d at 362-63 (citing Drake, 701 S.W. 2d at 607).  In this balancing process, “any restriction on public access must be narrowly tailored to accommodate the competing interest without unduly impeding the flow of information.”  Id. (citing Drake, 701 S.W.2d at 607).

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E. Discovery materials

There is no public right to criminal discovery materials.  Tennessee’s courts have interpreted Tennessee Rule of Criminal Procedure 16 as exempting criminal discovery from the Tennessee Public Records Act.  See, e.g., Tennessean v. Metro. Gov’t of Nashville, 485 S.W.3d 857, 870-71 (2016) (“the Rules of Criminal Procedure constitute state law exceptions to the Public Records Act. Rule 16, as state law, controls the release of these records and provides for access to these records only to the parties to the criminal case—the State and the defendant. There is no provision in Rule 16 for release of discovery materials to the public”).

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Although there is no Tennessee case law on point, the Tennessee Supreme Court has noted that warrants of arrest “are official judicial records of proceedings in a criminal case.” State v. Woodall, 729 S.W.2d 91, 94 (Tenn. 1987).  In Tennessee, there is a strong presumption of access to criminal proceedings and records. “The Tennessee Supreme Court has recognized a qualified right of the public, founded in the common law and the First Amendment to the United States Constitution to attend judicial proceedings and to examine the documents generated in those proceedings.” Knoxville News-Sentinel v. Huskey, 982 S.W.2d 359, 362 (Tenn. Crim. App. 1998) (citing Ballard v. Herzke, 924 S.W.2d 652, 661 (Tenn. 1996); see also Kocher v. Bearden, 546 S.W.3d 78, 85 (Tenn. Ct. App. 2017) (same). Therefore, warrants of arrest would also be subject to a presumption of openness.

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C. Dockets

Tennessee courts have not expressly indicated that the constitutional presumption of access applies to court dockets. However, there is a strong presumption of openness for access to criminal proceedings and records in Tennessee. Court dockets would also be a public record under Tennessee law and would be presumptively open unless an exemption applies.

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B. Arrest records

Some jurisdictions release arrest records pursuant to the Tennessee Public Records Act, while some deny such requests when a criminal case is contemplated or pending pursuant to Tennessee Rule of Criminal Procedure 16, which Tennessee Courts have construed as an exemption to the public records laws.  See, e.g., Appman v. Worthington, 746 S.W.2d 165, 166 (Tenn.1987) (explaining that Rule 16 exempts from release “investigative files in possession of state agents or law enforcement officers, … where the files are open and are relevant to pending or contemplated criminal” (citation omitted)).

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J. Other criminal court records issues

In Knoxville News-Sentinel v. Huskey, 982 S.W.2d 359 (Tenn. Crim. App. 1998), a newspaper sought to access to sealed records of applications for “attorneys fees and expenses, including money for the payment of expert witnesses assisting” in the defense of an indigent criminal defendant.  Id. at 360-61.  The Court of Criminal Appeals affirmed the trial court’s decision, which permitted access to “’barebones’ information,” Id. at 363, including “the summary cover sheets setting forth the total amount paid to defense counsel,” “the total amount paid to experts or for expert services,” and “[i]f a particular expert has offered evidence in the case and is known to the public through on the record proceedings then the total amount paid to those individual experts will be disclosed,” Id. at 361.  But the “detailed time sheets and detailed expense sheets,” the “motions requesting expert services and the orders authorizing those services,” and “the detailed time sheets of the authorized experts” were to be sealed until the conclusion of the underlying cases.  Id.  The court held that this balance between protecting “[d]ocuments that might reveal defense strategies or the identities of previously undisclosed expert” and making public “total amounts authorized and expended in the defense of this case” struck the proper balance between the competing rights of public access and the criminal defendant.  Id. at 363.

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V. Access to civil proceedings

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A. In general

The procedures for seeking access to civil proceedings in Tennessee mirror those governing access in criminal proceedings. King v. Jowers, 12 S.W.3d 410, 411-12, 412 n.2 (Tenn. 1999) (noting that “historically both civil and criminal trials have been presumptively open and citing to State v. Drake, 701 S.W.2d 604, 608 (Tenn. 1985), among others, in holding that closure of voir dire proceedings was improper).

[W]hen a closure or other restrictive order is sought, the party seeking to close the hearing must advance an overriding interest that is likely to be prejudiced, the closure must be no broader than necessary to protect that interest, the trial court must consider reasonable alternatives to closing the proceeding, and it must make findings adequate to support the closure.

Drake, 701 S.W. 2d at 608 (quoting Waller v. Georgia, 467 U.S. 39, 48 (1984)); see also Poole v. Union Planters Bank, N.A., 337 S.W.3d 771. 780-81 (Tenn. Ct. App. 2010) (explaining that “[p]arties cannot agree … to close a trial to the public or press absent an overriding interest”).

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B. Pre-trial proceedings

The procedures for seeking access to civil proceedings in Tennessee mirror those governing access in criminal proceedings.  King v. Jowers, 12 S.W.3d 410, 411-12, 412 n.2 (Tenn. 1999) (noting that “historically both civil and criminal trials have been presumptively open and citing to State v. Drake, 701 S.W.2d 604, 608 (Tenn. 1985), among others, in holding that closure of voir dire proceedings was improper).

[W]hen a closure or other restrictive order is sought, the party seeking to close the hearing must advance an overriding interest that is likely to be prejudiced, the closure must be no broader than necessary to protect that interest, the trial court must consider reasonable alternatives to closing the proceeding, and it must make findings adequate to support the closure.

Drake, 701 S.W. 2d at 608 (quoting Waller v. Georgia, 467 U.S. 39, 48 (1984)).

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C. Trials

The procedures for seeking access to civil trials in Tennessee mirror those governing access in criminal trials.  King v. Jowers, 12 S.W.3d 410, 411-12, 412 n.2 (Tenn. 1999) (noting that “historically both civil and criminal trials have been presumptively open and citing to State v. Drake, 701 S.W.2d 604, 608 (Tenn. 1985), among others, in holding that closure of voir dire proceedings was improper).

[W]hen a closure or other restrictive order is sought, the party seeking to close the hearing must advance an overriding interest that is likely to be prejudiced, the closure must be no broader than necessary to protect that interest, the trial court must consider reasonable alternatives to closing the proceeding, and it must make findings adequate to support the closure.

Drake, 701 S.W. 2d at 608 (quoting Waller v. Georgia, 467 U.S. 39, 48 (1984)).

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D. Post-trial proceedings

The procedures for seeking access to civil proceedings in Tennessee mirror those governing access in criminal proceedings.  King v. Jowers, 12 S.W.3d 410, 411-12, 412 n.2 (Tenn. 1999) (noting that “historically both civil and criminal trials have been presumptively open and citing to State v. Drake, 701 S.W.2d 604, 608 (Tenn. 1985), among others, in holding that closure of voir dire proceedings was improper).

[W]hen a closure or other restrictive order is sought, the party seeking to close the hearing must advance an overriding interest that is likely to be prejudiced, the closure must be no broader than necessary to protect that interest, the trial court must consider reasonable alternatives to closing the proceeding, and it must make findings adequate to support the closure.

Drake, 701 S.W. 2d at 608 (quoting Waller v. Georgia, 467 U.S. 39, 48 (1984)).

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E. Appellate proceedings

The procedures for seeking access to civil proceedings under Tennessee Rules mirror the governing records in criminal proceedings. King v. Jowers, 12 S.W.3d 410, 411-12, 412 n.2 (Tenn. 1999) (noting that “historically both civil and criminal trials have been presumptively open and citing to State v. Drake, 701 S.W.2d 604, 608 (Tenn. 1985), among others, in holding that closure of voir dire proceedings was improper).

[W]hen a closure or other restrictive order is sought, the party seeking to close the hearing must advance an overriding interest that is likely to be prejudiced, the closure must be no broader than necessary to protect that interest, the trial court must consider reasonable alternatives to closing the proceeding, and it must make findings adequate to support the closure.

Drake, 701 S.W. 2d at 608 (quoting Waller v. Georgia, 467 U.S. 39, 48 (1984)).

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VI. Access to civil records

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A. In general

“The Tennessee Supreme Court has recognized a qualified right of the public, founded in the common law and the First Amendment to the United States Constitution to attend judicial proceedings and to examine the documents generated in those proceedings.”  Knoxville News-Sentinel v. Huskey, 982 S.W.2d 359, 362 (Tenn. Crim. App. 1998) (citing Ballard v. Herzke, 924 S.W.2d 652, 661 (Tenn. 1996); see also Kocher v. Bearden, 546 S.W.3d 78, 85 (Tenn. Ct. App. 2017) (same).  “Article I, Sec. 19 of the Constitution of Tennessee presumably extends a similar qualified right to the public.”  Knoxville News-Sentinel, 982 S.W.2d at 363 n. 3.  Pursuant to these rights, “judicial records are … presumptively open.”  Autin v. Goetz, 524 S.W.3d 617, 619 (Tenn. Ct. App. 2017) (citations omitted).  This presumption of openness applies with even more force when the documents are “filed in connection with a dispositive motion.”  In re NHC-Nashville Fire Litigation, 293 S.W. 3d 547, 571 (Tenn. Ct. App. 2008).  And the press and public’s right of access includes a “legitimate interest in timely access to judicial records.”  Id. at 567.

The Tennessee Supreme Court has explained that the legal principles outlined in Waller v. Georgia, 467 U.S. 39 (1984) and Press-Enterprise Co. v. Superior Court, 464 U.S. 501 (1984), apply “in Tennessee when a closure or other restrictive order is sought.”  State v. Drake, 701 S.W.2d 604, 607-08 (Tenn. 1985).  The Court quoted Waller and explained that:

The presumption of openness may be overcome only by an overriding interest based on findings that closure is essential to preserve higher values and is narrowly tailored to serve that interest.  The interest is to be articulated with findings specific enough that a reviewing court can determine whether the closure order was properly entered.

Id. at 607 (quoting Waller, 467 U.S. at 45).  The Tennessee Supreme Court applied Drake in King v. Jowers, 12 S.W.3d 410, 411-12 (Tenn. 1999), to vacate a trial court order that denied access to the transcript of a closed voir dire proceeding in a civil case that the Court held should have been open to the public.  See also Kocher v. Bearden, No. W2017-02519-COA-R3-CV, 2018 WL 6423030, at *13 (Tenn. Ct. App. Nov. 13, 2018) (citing to Drake standard in access to civil court records case).

“The public’s right to access provides public scrutiny over the court system which serves to (1) promote community respect for the rule of law, (2) provide a check on the activities of judges and litigants, and (3) foster more accurate fact finding.”  Ballard v. Herzke, 924 S.W.2d 652, 661 (Tenn. 1996) (citing Grove Fresh Distributors, Inc. v. Everfresh Juice Co., 24 F.3d 893, 898 (7th Cir. 1994)).  Because of the importance of public access to court records, the Tennessee Court of Appeals has advised that “[i]n order to maintain public confidence in our judicial system it is important that litigation remain open and accessible to the public absent a valid reason for keeping information from the public eye.  We caution trial courts not to seal records simply because a party requests this be done.”  Warwick v. Jenkins, Habenicht & Woods, PLLC, No. E2012-00514-COA-R3-CV, 2013 WL 1788532, at *1 n.1 (Tenn. Ct. App. Apr. 25, 2013).

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B. Dockets

Tennessee courts have not expressly indicated that the constitutional presumption of access applies to court dockets. However, there is a strong presumption of openness for access to civil judicial records in Tennessee. E.g., Autin v. Goetz, 524 S.W.3d 617, (629 (Tenn. Ct. App., 2017) (“Judicial proceedings and judicial records are … presumptively open” (citations omitted).  Court dockets would also be a public record under Tennessee law and would be presumptively open unless an exemption applies.

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C. Discovery materials

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D. Pre-trial motions and records

“The presumption of access is particularly strong where the documents being sought were filed in connection with a dispositive motion.”  In re NHC-Nashville Fire Litigation, 293 S.W. 3d 547, 571 (Tenn. App. 2008); see also Doe v. Brentwood Academy Inc., 578 S.W.3d 50, 55 (Tenn. Ct. App. 2018) (“An important factor in deciding if a document in the court file should be sealed “is whether the court relied on such information in reaching its decision.” (citing Shane Grp., Inc. v. Blue Cross Blue Shield of Mich., 825 F.3d 299, 305 (6th Cir. 2016))).

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E. Trial records

The Tennessee Supreme Court in King v. Jowers, 12 S.W.3d 410, 411-12 (Tenn. 1999), vacated a trial court order that denied access to the transcript of a closed voir dire proceeding in a civil case that the Court held should have been open to the public.  The Court cited to State v. Drake, 701 S.W.2d 604, 608 (Tenn. 1985) and State v. James, 902 S.W.2d 911, 914 (Tenn. 1995) to support its holding and did not differentiate between the test to be applied to the proceeding itself and the transcript of that proceeding.  The Court explained that in James it held “that the court shall not close proceedings unless it determines that failure to do so would result in particularized prejudice to the party seeking closure that would override the public’s compelling interest in open proceedings.”  King, 12 S.W.3d at 411-12 (citing James, 902 S.W.2d at 914).  The Court explained that in Drake it held “that before closure of a proceeding may occur, the party seeking to close the hearing must advance an overriding interest that is likely to be prejudiced.”  Id. at 412 (citing Drake, 701 S.W.2d at 608).  Based on this precedent, the Court held that it could “find no justification for the closing of jury selection proceedings” in this civil case and that the order barring access to the transcript of the proceeding must be vacated.  Id.

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F. Settlement records

The Tennessee Court of Appeals has found that joint petitions for approval of a minor’s settlement of a legal dispute may only be sealed where the justification for the sealing is “compelling.”  Kocher v. Bearden, 546 S.W.3d 78, 86 (Tenn. Ct. App. 2017).  Specifically, “[t]he presumption of openness may be overcome only by an overriding interest based on findings that closure is essential to preserve higher values and is narrowly tailored to serve that interest.  The interest is to be articulated along with findings specific enough that a reviewing court can determine whether the closure order was properly entered.”  Id. (quoting In re NHC-Nashville Fire Litig., 293 S.W.3d 547, 560 (Tenn. Ct. App. 2008)).  The Court of Appeals has rejected general arguments of privacy (including financial privacy), embarrassment, undue burden, and concern for a minor.  Id. at 86-87; see also Kocher v. Bearden, No. W2017-02519-COA-R3-CV, 2018 WL 6423030, at *13 (Tenn. Ct. App. Nov. 13, 2018) (holding on appeal after remand that “citing only ‘confidential information pertaining to the minor plaintiff” was insufficient to justify sealing of the joint petition because “both the trial court and the appellees have failed to articulate any compelling reason for maintaining the seal”).

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G. Post-trial records

Although Tennessee courts have not specifically addressed the right of access to post-trial records in civil cases, the Tennessee Supreme Court has generally “recognized a qualified right of the public, founded in the common law and the First Amendment to the United States Constitution to attend judicial proceedings and to examine the documents generated in those proceedings.”  Knoxville News-Sentinel v. Huskey, 982 S.W.2d 359, 362 (Tenn. Crim. App. 1998) (citing Ballard v. Herzke, 924 S.W.2d 652, 661 (Tenn. 1996); see also Kocher v. Bearden, 546 S.W.3d 78, 85 (Tenn. Ct. App. 2017) (same).  Pursuant to these rights, “judicial records are … presumptively open.”  Autin v. Goetz, 524 S.W.3d 617, 619 (Tenn. Ct. App. 2017) (citations omitted).  This presumption of openness applies with even more force when the documents are “filed in connection with a dispositive motion.”  In re NHC-Nashville Fire Litigation, 293 S.W. 3d 547, 571 (Tenn. Ct. App. 2008).

The presumption of openness may be overcome only by an overriding interest based on findings that closure is essential to preserve higher values and is narrowly tailored to serve that interest.  The interest is to be articulated with findings specific enough that a reviewing court can determine whether the closure order was properly entered.

State v. Drake, 701 S.W.2d 604, 607 (Tenn. 1985) (quoting Waller, 467 U.S. at 45).

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H. Appellate records

“Documents previously filed under seal in the trial court pursuant to a specific order of the trial court remain under seal in [the Court of Appeals].  Tenn. Ct. App. R. 15(b)(i).  However, ‘[f]or a document to be filed under seal in the appellate court pursuant to subdivision (b), the trial court must have made an individual determination that the particular document should be filed under seal.’”  Doe v. Brentwood Academy Inc., 578 S.W.3d 50, 52-53 (Tenn. Ct. App. 2018) (quoting Tenn. Ct. App. R. 15(b)(ii)).

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I. Other civil court records issues

Obtaining Medical Information: “[M]edical information obtained from a confidential medical record retains its confidentiality unless and until the patient puts his or her medical history at issue in a civil action or waives the confidentiality.”  Doe v. Brentwood Academy Inc., 578 S.W.3d 50, 55 (Tenn. Ct. App. 2018). The court further explained that “[b]ecause Jane Doe’s medical records and her medical history derived therefrom constitutes confidential information, and because that confidential information is not relevant to Jane Doe’s claim and was not relied upon by the trial court to make a decision in this case, Jane Doe has established a compelling reason for sealing her medical records and confidential information derived therefrom.  Further, the redaction of only those few lines which reveal the confidential information is narrowly tailored to serve that compelling reason.” Id. at 56.

Sealing Discovery Responses: Where discovery responses must be filed pursuant to Tennessee Rule of Civil Procedure 5.05, a protective order which seeks to seal all or some of the discovery responses is evaluated under Rule 26.03’s good cause standard.  Ballard v. Herzke, 924 S.W.2d 652, 658-59 (Tenn. 1996).  The factors that weigh against entry of a protective order under the good cause standard are:

(1) The party benefiting from the protective order is a public entity or official; (2) the information sought to be sealed related to a matter of public concern; and (3) the information sought to be sealed is relevant to other litigation and sharing it would promote fairness and efficiency.

Id. (citing Pansy v. Borough of Stroudsburg, 23 F.3d 772, 787 (3d Cir. 1994)).  Conversely, the factors that weigh in favor of good cause include:

(1) the litigation involves private litigants; (2) the litigation concerns matters of private concern or [are] of little legitimate public interest; and (3) disclosure would result in serious embarrassment or other specific harm.

Id. at 658-59 (citations omitted).  None of the listed factors are weighted more than another, but instead “the balancing test allows trial courts to evaluate the competing considerations in light of the facts of each individual case.”  Id. at 659 (citation omitted).

A protective order that induces discovery may be modified or lifted, but an additional factor will be used in the balancing.  Id. at 659-60.  The additional factor is “the reliance by the original parties on the protective order,” but even this additional factor “is not outcome determinative.”  Id. at 659.  Instead, “the extent to which a party can rely on a protective order should depend on the extent to which the order induced the party to allow discovery….”  Id. at 660 (citing Beckman Indus., Inc. v. Int’l Ins. Co., 966 F.2d 470, 472 (9th Cir. 1992)).  In other words, “trial courts must consider whether reliance is real and reasonable or is only an effort by litigants to avoid later modification.”  Id.

The reliance factor may also be limited in two factual scenarios.  First, “reliance upon a protective order that is improvidently granted in the first instance will not insulate that order from subsequent modification.  Where it is apparent the trial court did not engage in proper balancing to initially determine that good cause supported issuance of the protective order, modification is proper.”  Id. at 659 n.4 (citing Pansy, 23 F.3d at 790).  Second, “reliance on a blanket protective order ordinarily weighs little in the balance against modification.”  Id.  That is because while blanket protective orders “are particularly useful in effecting cooperation and expediting the flow of pretrial discovery, … they are also, by nature, over inclusive, less likely to induce reasonable reliance, and therefore peculiarly subject to later modification.”  Id.  (citing Beckman Indus., Inc., 966 F.2d at 475-76).

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VII. Jury and grand jury access

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A. Access to voir dire

The same rules that apply to access to criminal and civil proceedings apply to voir dire.  See King v. Jowers, 12 S.W.3d 410, 411-12 (Tenn. 1999) (citing to State v. Drake, 701 S.W.2d 604, 608 (Tenn. 1985), among others, in holding that closure of voir dire proceedings was improper).

[W]hen a closure or other restrictive order is sought, the party seeking to close the hearing must advance an overriding interest that is likely to be prejudiced, the closure must be no broader than necessary to protect that interest, the trial court must consider reasonable alternatives to closing the proceeding, and it must make findings adequate to support the closure.

Drake, 701 S.W. 2d at 608 (quoting Waller v. Georgia, 467 U.S. 39, 48 (1984)).

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B. Juror identities, questionnaires and other records

After jury pools are summoned, a jurisdiction’s jury coordinator creates “a list of the members of the jury pool, and a copy of the list of the members of the jury pool shall be posted in the clerk’s office for public inspection.”  Tenn. Code Ann. § 22-2-308.  This jury pool list is also available to the public.  Id.  In criminal cases, upon request the parties are to be supplied with “a list indicating for each member of the jury panel: (1) the member's name, address, occupation, spouse's name and occupation; and (2) whether each member has served previously on a criminal court jury. Information about previous jury experience need not be provided prior to the day of trial.”  Tenn. R. Crim. P. 24(h).

The Tennessee Supreme Court has held that anonymous juries may be impaneled under specific circumstances.  State v. Ivy, 188 S.W.3d 132, 144 (Tenn. 2006).  Courts utilize a two-prong framework for determining when an anonymous jury is appropriate. Id.  “The first prong is whether there is a strong reason to believe that the jury needs protection.”  Id. For this prong the “trial court may consider a defendant’s alleged participation in organized crime, a defendant’s alleged participation in a group with the capacity to threaten jurors, a defendant’s past efforts to interfere with the judicial process, the defendants possible punishment if convicted, and the pervasiveness of trial publicity that may reveal the jurors’ names and expose them to public scrutiny.”  Id.  “The second prong of the framework is whether reasonable precautions will minimize prejudice to the defendant and ensure that fundamental rights are protected.”  Id.  “Such precautions may include enhanced voir dire, instructions to the jury as to neutral reasons for their anonymity, and instructions to the jury on the presumption of innocence.”  Id.

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C. Grand jury proceedings and records

“[G]eneral law mandates that grand jury proceedings remain secret.”  State v. Carruthers, 35 S.W.3d 516, 533 (Tenn. 2000) (citations omitted).  “Every member of the grand jury shall keep secret the proceedings of that body and the testimony given before it, except as provided in Rule 6(k)(2).”  Tenn. R. Crim. P. 6(k).   “The court may require a grand juror to reveal the testimony of a grand jury witness: (A) to ascertain whether the grand jury testimony is consistent with that given by the witness before the court; or (B) to disclose the grand jury testimony of any witness charged with perjury.”  Tenn. R. Crim. P. 6(k)(2); see also Tenn. R. Crim. P. 16(a)(3) (requiring the state to provide as discovery to the defendant any “recorded testimony of the defendant before a grand jury which relates to the offense charged”).  But “[t]he power of a court to remove the oath of secrecy should not be exercised except in cases where it is clearly shown necessary to the attainment of justice.”  In re Rich, 413 S.W.2d 374, 378 (Tenn. 1967) (discussing under identical, prior statutory provision).

Tennessee statutes include similar provisions.  For example, “[a] grand juror … shall not disclose matters occurring before the grand jury except in accordance with [specified] sections.”  Tenn. Code Ann. § 40-12-209(a)(3) (investigative grand juries).  Disclosure is, among other things, “[p]ermitted by a court upon motion of the defendant showing grounds exist for amotion to dismiss the indictment because of matters occurring before the grand jury.”  Tenn. Code Ann. § 10-12-210(3).

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D. Interviewing jurors

Tennessee courts have not considered the right of the press to interview jurors or veniremen.

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VIII. Proceedings involving minors

Tennessee Rule of Juvenile Procedure 114 governs access to juvenile proceedings and applies the rule in the Tennessee Supreme Court’s decision in State v. James, 902 S.W.2d 911 (Tenn. 1995).

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A. Delinquency

“Delinquent and unruly cases are open to the public.”  Tenn. R. Juv. P. 114(b).  Delinquency proceedings may be closed “except to those persons having a direct interest in the case” in limited circumstances.

In determining whether to close the proceedings, and thereby balancing the interests of the parties and the public's interests in open proceedings, the court shall apply the following rules:

(1) When closure is sought by a party:

(A) The party seeking to close the hearing shall have the burden of proof;

(B) The court shall not close proceedings to any extent unless it determines that failure to do so would result in particularized prejudice to the party seeking closure that would override the public's compelling interest in open proceedings;

(C) Any order of closure must not be broader than necessary to protect the determined interests of the party seeking closure;

(2) The juvenile court must consider reasonable alternatives to closure of proceedings; and

(3) The juvenile court must make adequate written findings to support any order of closure.

Id.; see also State v. James, 902 S.W.2d 911, 914 (Tenn. 1995) (applying same standards for closure of delinquency proceeding).  The juvenile court must also “make adequate written findings to support any order of closure.”  James, 902 S.W.2d at 914.

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B. Dependency

Dependency proceedings are not open to the public.  Tenn. R. Juv. P. 114(a).

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C. Other proceedings involving minors

Neglect proceedings are not open to the public.  Tenn. R. Juv. P. 114(a).

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D. Prohibitions on photographing or identifying juveniles

Under its cameras in the courtroom rule, the Tennessee Supreme Court has required that “[m]edia coverage of a witness, party, or victim who is a minor is prohibited in any judicial proceeding, except when a minor is being tried for a criminal offense as an adult.”  Tenn. Sup. Ct. R. 30C(1).

“In juvenile court proceedings, if the court receives a request for media coverage, the court will notify the parties and their counsel of the request, and prior to the beginning of the proceedings, the court will advise the accused, the parties, and the witnesses of their personal right to object, and that if consent is given, it must be in writing. Objections by a witness will suspend media coverage as to that person only during the proceeding, whereas objections by the accused in a criminal case or any party to a civil action will prohibit media coverage of the entire proceeding.”  Tenn. Sup. Ct. R. 30C(5).

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E. Minor testimony in non-juvenile courts

Under its cameras in the courtroom rule, the Tennessee Supreme Court has required that “[m]edia coverage of a witness, party, or victim who is a minor is prohibited in any judicial proceeding, except when a minor is being tried for a criminal offense as an adult.”  Tenn. Sup. Ct. R. 30C(1).

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IX. Special proceedings

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A. Tribal Courts in the jurisdiction

The Tennessee courts have not had occasion to consider access to tribal courts.

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B. Probate

The Tennessee courts have not had occasion to consider access to probate courts.

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C. Competency and commitment proceedings

For hearings for involuntary admission for in patient mental health treatment and for residential treatment, the court “may exclude the public from the hearing on motion of the defendant if the interests of the defendant and the public would best be served by exclusion.”  Tenn. Code Ann. § 33-3-610; Tenn. Code Ann. § 33-6-418.

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D. Attorney and judicial discipline

Tennessee Supreme Court Rule 9, Section 32.1 provides that “[a]ll matters, investigations, or proceedings involving allegations of misconduct by or [sic] the disability of an attorney … shall be confidential and privileged … except as otherwise provided in this Section.”  But “[a]ll hearings held before a duly appointed hearing panel or Court, except those pursuant to Section 27, shall be public, subject to the provisions of Section 32.6 and Tenn. Sup. Ct. R. 30.”  Tenn. Sup. Ct. R. 9 § 32.1.  Section 27 pertains to proceedings where an attorney is declared to be incompetent or is alleged to be incapacitated.  Tenn. Sup. Ct. R. 9 § 27.  Section 32.6 provides for closure of any hearing “[i]n order to protect the interests of a complainant, respondent or petitioning attorney, witness or third party … for good cause shown….”  This includes closure or other restrictive measures to protect the confidentiality of a specific document or specific information.  Id.  If there is an appeal in a disciplinary proceeding to circuit or chancery court “the Court shall be public to the same extent as in all other cases.”  Tenn. Sup. Ct. R. 9 § 32.8.

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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

In Tennessee, an interested person or media representative must seek permission to intervene in order to have standing to contest a prior restraint, like a gag order. State v. Montgomery, 929 S.W.2d 409, 411 (Tenn. Crim. App. 1996).  Aggrieved parties or entities can seek appellate review pursuant to Tenn. R. App. P. 10 if they were previously permitted to intervene and the trial court refused to dissolve the prior restraint. Id. at 411.

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B. Gag orders on the press

A gag order prohibiting the media from publishing the name of a witness who testified in open court using his real name was found to be unconstitutional.   State v. Montgomery, 929 SW 2d 409, 413-14 (Tenn. Crim. App. 1996).  “The law is crystal clear: the media may publish the names and testimony of witnesses testifying in open court during a public trial with impunity.  Any restraint placed on this right is violative of the First Amendment.”  Id.  “If the gag order is directed to the press, the constitutional standard is very stringent.”  State v. Carruthers, 35 S.W.3d 516, 560 (Tenn. 2000) (citing Montgomery, 929 S.W.2d at 414).

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C. Gag orders on participants

Courts “may constitutionally restrict extrajudicial comments by trial participants, including lawyers, parties, and witnesses, when the trial court determines that those comments pose a substantial likelihood of prejudicing a fair trial.” State v. Carruthers, 35 S.W.3d 516, 563 (Tenn. 2000).  In Carruthers, the gag order on participants, including the defendant who was pro se, was justified because of the “significant amount of media coverage” and “the problem of witness intimidation.”  Id.  “Under these unusual circumstances, the trial court was justified in employing heightened measures to ensure that a proper jury could be found and to prevent Carruthers from manipulating the media so as to intimidate witnesses.”  Id. But “initial gag orders on trial participants should … allow trial participants to make general statements asserting innocence, commenting on the nature of an allegation or defense, and discussing matters of public record.”  Id. at 564.

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D. Interviewing judges

Judges are bound by the Code of Judicial Conduct and the Rules of Professional Conduct promulgated by the Tennessee Supreme Court.  Tenn. Sup. Ct. R. 10 (Code of Judicial Conduct); Tenn. Sup. Ct. R. 8 (Rules of Professional Conduct).  For example, “A judge shall not make any public statement that might reasonably be expected to affect the outcome or impair the fairness of a matter pending or impending in any court, or make any nonpublic statement that might substantially interfere with a fair trial or hearing.”  Tenn. Sup. Ct. R. 10 Canon 2 Rule 2.10(A).  Other rules may restrict what a judge can say in an interview.  But there is no blanket prohibition on granting interviews to the media.

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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

Tennessee Supreme Court Rule 30: Media Guidelines governs cameras and other technology in the courtroom.  For specifics on media recording or broadcasting of court proceedings, a copy of the rule is available at the Tennessee court's website.  Rule 30’s “provisions create a presumption in favor of in-court media coverage of judicial proceedings.”  State v. Morrow, No. 02C01-9601-CC-00022, 1996 WL 170679, at *3 (Tenn. Crim. App. Apr. 12, 1996).  “[A]ny finding that such coverage should be denied, limited, suspended, or terminated must be supported by substantial evidence that at least one of the four interests [in the Rule] is of concern in the case before the court and that the order excluding or limiting, etc., is necessary to adequately reach an accommodation of the interest involved.”  Id. at *5.

Authorization: Under Tennessee Supreme Court Rule 30, camera and audio coverage is generally allowed in “public judicial proceedings,” subject to the presiding judge's discretion to limit or deny coverage for set reasons: to “(i) control the conduct of the proceedings before the court; (ii) maintain decorum and prevent distractions; (iii) guarantee the safety of any party, witness, or juror; and (iv) ensure the fair administration of justice in the pending cause.”  But the use of cameras and other technology in courtrooms pursuant to Rule 30 is restricted to representatives of the media.  Tenn. Sup. Ct. R. 30A(1).  “Media” is defined in the statute as “legitimate news gathering and reporting agencies and their representatives whose function is to inform the public, or persons engaged in the preparation of educations films or recordings.”  Requests pursuant to Rule 30 must be made in writing two business days before the proceeding you want to record is scheduled to begin to the presiding judge.  Tenn. Sup. Ct. R. 30 A(2).  The presiding judge may waive this requirement.  Id.

The rule also places certain limits on coverage, such as prohibiting coverage of minor participants and jurors; and identifies procedures for evidentiary hearings on coverage limits and appellate review.

Limitations on footage: Tennessee Supreme Court Rule 30C prohibits certain behavior for the following participants and/or circumstances:

  • Minor Participants: Media coverage of a witness, party, or victim who is a minor is prohibited in any judicial proceeding, except when a minor is being tried for a criminal offense as an adult.
  • Jury Selection: Media coverage of jury selection is prohibited.
  • Jurors: Media coverage of jurors during the judicial proceeding is prohibited.
  • Closed proceedings: Media coverage of proceedings which are otherwise closed to the public by law is prohibited.
  • Juvenile Court Proceedings: In juvenile court proceedings, if the court receives a request for media coverage, the court will notify the parties and their counsel of the request, and prior to the beginning of the proceedings, the court will advise the accused, the parties, and the witnesses of their personal right to object, and that if consent is given, it must be in writing. Objections by a witness will suspend media coverage as to that person only during the proceeding, whereas objections by the accused in a criminal case or any party to a civil action will prohibit media coverage of the entire proceeding.
  • Conferences of Counsel: There shall be no audio pickup, recording, broadcast, or video close up of conferences, which occur in a court facility, between attorneys and their clients, between co-counsel of a client, between counsel and the presiding judge held at the bench or in chambers, or between judges in an appellate proceeding.

There are other limitations in Rule 30 that anyone wanting to record any portion of a judicial proceeding should review.

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C. Tips for covering courts in the jurisdiction

The website www.tncourts.gov has a "Media Guide to Tennessee's Legal System" available on their website. The guide includes a short discussion of the public's right of access to court proceedings, the court's Media Guidelines Rule, tips on covering court proceedings, and overviews of the state's court system and relevant laws.

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