West Virginia

Author

Michelle Mensore Condon
Charleston School of Law
P.O. Box 535
Charleston, SC 29402
(843) 377-2457
http://www.charlestonlaw.edu

Special thanks to Charleston School of Law students for their assistance and to the late Sean McGinley of DiPiero Simmons McGinley & Bastress, PLLC, now deceased, who previously co-authored this chapter.

Last updated January 2026

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Open Courts Compendium

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I. Introduction: Access rights in the jurisdiction

The West Virginia Constitution in article III, section 14 recognizes that “[t]rials of crimes, and misdemeanors, unless herein otherwise provided, shall be . . . public . . . .” W. Va. Const. art. III, § 14. The right of access to the courts under the West Virginia Constitution is not limited to the accused, but mandates that the trial itself shall be public. State ex rel. Herald Mail Co. v. Hamilton, 165 W. Va. 103, 108, 267 S.E.2d 544, 547 (1980). The right of access to West Virginia courts applies to the press as well as the public as described by the U.S. Supreme Court in Cox Broadcasting Corp. v. Cohn, 420 U.S. 469 (1975). The press “not only constitutes a part of the general public, but it is well established that it operates in a special capacity as an agent or surrogate for the general public in its gathering and dissemination of information.” Hamilton, 165 W. Va. at 112, 267 S.E.2d at 549 (quoting Cox Broad. Corp., 420 U.S. at 491–92).

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A. The roots of access rights

Under the open courts provision of the West Virginia Constitution, the Supreme Court of Appeals of West Virginia has held that the public and press have a right to attend criminal and civil court proceedings, but this is not an absolute right. State ex rel. Garden State Newspapers, Inc. v. Hoke, 205 W. Va. 611, 615–16, 520 S.E.2d 186, 190–91 (1999). Although the public's right of access to courts is not absolute, this right should never be arbitrarily or summarily denied; when the closure issue arises, the trial court should make a careful inquiry into the matter, affording all interested parties an opportunity to be heard. Daily Gazette Co., Inc. v. Comm. on Legal Ethics of the W. Va. State Bar, 174 W. Va. 359, 326 S.E.2d 705 (1984). Recent decisions of the Supreme Court of Appeals reaffirm that Article III, Section 17 imposes a strong presumption of public access and requires trial courts to make specific findings before restricting access. See State ex rel. W. Va. Univ. Hosps. v. Gaujot, 247 W. Va. 443, 452–53, 880 S.E.2d 888, 897–98 (2022); State ex rel. Johnson v. Tsapis, 244 W. Va. 517, 524–25, 855 S.E.2d 247, 254–55 (2021).

In addition, a statute or court rule often will govern public access to court proceedings and records. For example, West Virginia Trial Court Rule 3.01 states, “The court is considered open and in continuous session in all divisions of the circuit court in accordance with the provisions of West Virginia Rule of Civil Procedure 77 and other controlling statutes and rules.” W. Va. Trial Ct. R. 3.01, https://www.courtswv.gov/legal-community/court-rules/wv-trial-court-rules-contents?utm_source=chatgpt.com#rule301.

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B. Overcoming a presumption of openness

As the U.S. Supreme Court has recognized, and West Virginia courts have reiterated, where a constitutional presumption of access applies, the court may close proceedings only after making specific, on-the-record findings: (1) that closure is necessary to further a compelling governmental interest; (2) the closure order is narrowly tailored to serve that interest; and (3) that no less restrictive means are available to adequately protect that interest. Press-Enterprise Co. v. Superior Court (Press-Enterprise II), 478 U.S. 1, 13–14 (1986); see also Press-Enterprise Co. v. Superior Court (Press-Enterprise I), 464 U.S. 501, 510–11 (1984); Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 607 (1982) (noting that access restrictions must be “necessitated by a compelling governmental interest, and . . . narrowly tailored to serve that interest”); State ex rel. Garden State Newspapers v. Hoke, 205 W. Va. 611, 615, 520 S.E.2d 186, 190 (1999); Harper v. Elk Run Coal Co., Inc., No. 2:11–cv–00305, 2012 WL 1999429, at *2 (S.D. W. Va. June 4, 2012). Recent West Virginia decisions reaffirm these principles. See State ex rel. W. Va. Univ. Hosps. v. Gaujot, 247 W. Va. 443, 452–53, 880 S.E.2d 888, 897–98 (2022) (holding that before restricting public access, a trial court must identify a compelling interest, consider alternatives, and make specific findings on the record); State ex rel. Johnson v. Tsapis, 244 W. Va. 517, 524–25, 855 S.E.2d 247, 254–55 (2021) (reaffirming Article III, Section 17’s strong presumption of openness and the requirement of narrowly tailored closure orders).]

The common law right of access generally is less absolute than the constitutional right—at times bowing, for example, to the less compelling interest in ensuring that court records “are not ‘used to gratify private spite or promote public scandal’ through the publication of ‘the painful and sometimes disgusting details of a divorce case.’” Nixon v. Warner Commc’ns, Inc., 435 U.S. 589, 598 (1978) (internal citation omitted). The U.S. Supreme Court found it “difficult to distill . . . a comprehensive definition of what is referred to as the common-law right of access or to identify all the factors to be weighed in determining whether access is appropriate,” instead concluding that “the decision as to access is one best 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. at 598–99.

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C. Procedural prerequisites to closure

Where a presumption of access applies, courts must make specific, on the record findings about the need for closure. Press-Enterprise Co. v. Superior Court (Press-Enterprise II), 478 U.S. 1, 13–14 (1986). Lower courts have specified the procedure courts should follow. For example, the Fourth Circuit laid out the following test in a criminal case:

First, the district court must give the public adequate notice that the closure of a hearing or the sealing of documents may be ordered. In particular, closure motions must be docketed reasonably in advance of their disposition so as to give the public and press an opportunity to intervene and present their objections to the court. Moreover, although individual notice is generally not necessary, when the district court has been made aware of the desire of specific members of the public to be present, reasonable steps to afford them an opportunity to submit their views should be taken before closure. Second, the district court must provide interested persons an opportunity to object to the request before the court ma[kes] its decision. Third, if the district court decides to close a hearing or seal documents, it must state its reasons on the record, supported by specific findings. Its findings must be specific enough to enable the reviewing court to determine whether closure was proper. In addition, the court must state its reasons for rejecting alternatives to closure.

In re Wash. Post Co., 807 F.2d 383, 390-91 (4th Cir. 1986) (internal citations and quotations omitted).

West Virginia courts apply the same procedural requirements. In recent decisions, the Supreme Court of Appeals held that trial courts must make specific, on-the-record findings, consider less restrictive alternatives, and articulate a compelling interest before restricting access. See State ex rel. W. Va. Univ. Hosps. v. Gaujot, 247 W. Va. 443, 452–53, 880 S.E.2d 888, 897–98 (2022); State ex rel. Johnson v. Tsapis, 244 W. Va. 517, 524–25, 855 S.E.2d 247, 254–55 (2021).

Failing to observe the procedural prerequisites to closure constitutes error even if the closure otherwise might be proper, and appellate courts generally will “remand the issue to the district court for a second consideration using correct procedures and correct substantive standards.” Id. at 393.

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

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A. Media standing to challenge closure

The United States Supreme Court noted that the public and the press have a right to challenge closure of court records and proceedings, holding that “representatives of the press and general public ‘must be given an opportunity to be heard on the question of their exclusion.’” Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 609 n. 25 (quoting Gannett Co. v. DePasquale, 443 U.S. 368, 401 (1979) (Powell, J., concurring)).

West Virginia law is fully consistent with this principle. The Supreme Court of Appeals has recognized that members of the press and public have standing to challenge court closures or sealing orders and must be given an opportunity to be heard. See State ex rel. W. Va. Univ. Hosps. v. Gaujot, 247 W. Va. 443, 452–53, 880 S.E.2d 888, 897–98 (2022) (holding that trial courts must allow objections before restricting access); State ex rel. Johnson v. Tsapis, 244 W. Va. 517, 524–25, 855 S.E.2d 247, 254–55 (2021).

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B. Procedure for requesting access in criminal cases

The United States Supreme Court has declined to specify the proper method for requesting access. Practices vary, though “courts have widely recognized that the correct procedure for a non-party to challenge a protective order is through intervention for that purpose.” United Nuclear Corp. v. Cranford Ins. Co., 905 F.2d 1424, 1427 (10th Cir. 1990) (citing Pub. Citizen v. Liggett Grp., Inc., 858 F.2d 775, 783 (1st Cir. 1988)). West Virginia courts similarly recognize that members of the public and press must be afforded an opportunity to object before access is restricted. The Supreme Court of Appeals has emphasized that trial courts must allow objections and consider alternatives before granting closure or sealing. See State ex rel. W. Va. Univ. Hosps. v. Gaujot, 247 W. Va. 443, 452–53, 880 S.E.2d 888, 897–98 (2022); State ex rel. Johnson v. Tsapis, 244 W. Va. 517, 524–25, 855 S.E.2d 247, 254–55 (2021).

Many courts, by rule or practice, allow a less formal challenge in the form of an oral request for access or a letter to the judge overseeing the proceedings. In some courts, the press liaison or public information officer may be able to assist the press in requesting access to closed proceedings or records.

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C. Procedure for requesting access in civil matters

The United States Supreme Court has declined to specify the proper method for requesting access. Jurisdictions vary, though “courts have widely recognized that the correct procedure for a non-party to challenge a protective order is through intervention for that purpose.” United Nuclear Corp. v. Cranford Ins. Co., 905 F.2d 1424, 1427 (10th Cir. 1990) (citing Pub. Citizen v. Liggett Grp., Inc., 858 F.2d 775, 783 (1st Cir. 1988)). West Virginia courts apply the same principles in civil matters. The Supreme Court of Appeals has emphasized that before restricting access to proceedings or records, trial courts must allow members of the press or public to object and must consider alternatives. See State ex rel. W. Va. Univ. Hosps. v. Gaujot, 247 W. Va. 443, 452–53, 880 S.E.2d 888, 897–98 (2022); State ex rel. Johnson v. Tsapis, 244 W. Va. 517, 524–25, 855 S.E.2d 247, 254–55 (2021).

Many courts allow a less formal challenge in the form of an oral request for access or a letter to the judge overseeing the proceedings at issue. In some courts, the press liaison or public information officer may be able to assist the press in requesting access to closed proceedings or records.

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D. Obtaining review of initial court decisions

West Virginia’s circuit courts are trial courts of general jurisdiction. For most civil, family, guardianship, and administrative cases filed after June 30, 2022, appeals from a circuit court’s final judgment or appealable order go first to the Intermediate Court of Appeals of West Virginia (“ICA”). The ICA provides an initial appellate review, and further review by the Supreme Court of Appeals is available only by petition for appeal. Certain categories of cases— including most criminal matters, abuse-and-neglect proceedings, and domestic-violence matters—continue to be appealed directly to the Supreme Court of Appeals. See W. Va. Code § 51-11-4. .

The creation of the ICA did not alter the availability of extraordinary writs. Parties and non-parties may still seek mandamus or prohibition relief directly in the Supreme Court of Appeals to challenge closure or sealing orders that implicate constitutional rights of access. See State ex rel. Ogden Newspapers v. Zakaib, 216 W. Va. 471, 474–75, 607 S.E.2d 110, 113–14 (2004) (granting mandamus to compel unsealing of court records).

The Supreme Court of Appeals will decide the matter by issuing an order or opinion with or without oral argument, depending on the circumstances. See W. Va. R. App. P. 5, https://www.courtswv.gov/legal-community/court-rules/rules-appellate-procedure#rule5

In addition to direct appeal, filing a petition for writ of mandamus or prohibition is another means to seek review of an initial court decision regarding access. However, granting review through original jurisdiction is discretionary, and the court exercises this relief sparingly. See W. Va. R. App. P. 5, https://www.courtswv.gov/legal-community/court-rules/rules-appellate-procedure#rule5

Circuit courts hear appeals from magistrate, municipal courts, and administrative agencies, excluding workers’ compensation appeals. See Circuit Courts, W. Va. Judiciary, http://www.courtswv.gov/lower-courts/circuit-courts.html.

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III. Access to criminal proceedings

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A. In general

The constitutional right for the press and public to attend a criminal trial, when read in light of West Virginia’s open courts provision, provides a clear basis for finding an independent right of the public and press to attend criminal proceedings. However, there can be limits on access when balanced against a defendant’s right to a fair trial. State v. Bowling, 232 W. Va. 529, 538, 753 S.E.2d 27, 36 (2013), cert. denied, 572 U.S. 1039 (2014). West Virginia courts apply the same Press–Enterprise balancing test used by the U.S. Supreme Court, requiring a showing that closure is essential to protect a higher interest—such as the defendant’s fair-trial rights—and that the restriction is narrowly tailored.

Recent decisions of the Supreme Court of Appeals have reaffirmed that Article III, Section 17 creates a strong presumption of public access to criminal proceedings and requires trial courts to make specific findings and consider alternatives before ordering closure. See State ex rel. W. Va. Univ. Hosps. v. Gaujot, 247 W. Va. 443, 452–53, 880 S.E.2d 888, 897–98 (2022); State ex rel. Johnson v. Tsapis, 244 W. Va. 517, 524–25, 855 S.E.2d 247, 254–55 (2021).

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B. Pretrial proceedings

The constitutional right to attend criminal trials extends to pretrial hearings in criminal cases. These access rights derive from both the First Amendment and the open courts provision of Article III, Section 17 of the West Virginia Constitution. State ex rel. Garden State Newspapers, Inc. v. Hoke, 205 W. Va. 611, 615, 520 S.E.2d 186, 190 (1999) (citing State ex rel. Herald Mail Co. v. Hamilton, 165 W. Va. 103, 267 S.E.2d 544 (1980)).

Recent decisions confirm that the constitutional presumption of openness applies equally to pretrial proceedings. The Supreme Court of Appeals has emphasized that trial courts must make specific findings and consider reasonable alternatives before restricting access to pretrial hearings. See State ex rel. W. Va. Univ. Hosps. v. Gaujot, 247 W. Va. 443, 452–53, 880 S.E.2d 888, 897–98 (2022).

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C. Criminal trials

There is a constitutional right to attend criminal trials based on Article III, section 17 of the West Virginia Constitution, the open courts provision. State ex rel. Garden State Newspapers, Inc. v. Hoke, 205 W. Va. 611, 615, 520 S.E.2d 186, 190 (1999) (citing State ex rel. Herald Mail Co. v. Hamilton, 165 W. Va. 103, 267 S.E.2d 544, (1980)). However, there can be limits on access when balanced against a defendant’s right to a fair trial. State v. Bowling, 232 W. Va. 529, 538, 753 S.E.2d 27, 36, (2013), cert. denied, 572 U.S. 1039 (2014).

The court has since reaffirmed that any restriction on access to criminal trials must satisfy the Press–Enterprise standard by identifying a compelling interest, considering alternatives, and narrowly tailoring the closure order. See State ex rel. Johnson v. Tsapis, 244 W. Va. 517, 524–25, 855 S.E.2d 247, 254–55 (2021); Gaujot, 247 W. Va. at 452–53, 880 S.E.2d at 897–98.

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D. Post-trial proceedings

In In re Washington Post Co., 807 F.2d 383, 389 (4th Cir. 1986), the Fourth Circuit found that the First Amendment right of access extends to plea hearings and sentencing hearings, noting that “[b]ecause the taking of a guilty plea serves as a substitute for a trial, it may reasonably be treated in the same manner as a trial for First Amendment purposes. Sentencing may also be viewed as within the scope of the criminal trial itself.” The court added that “even if plea hearings and sentencing hearings are not considered a part of the trial itself, they are surely as much an integral part of a criminal prosecution as are preliminary probable-cause hearings, suppression hearings, or bail hearings, all of which have been held to be subject to the public’s First Amendment right of access.” Id.

These principles are consistent with West Virginia’s own constitutional access doctrine. The Supreme Court of Appeals has emphasized that constitutional access rights extend to all stages of a criminal prosecution unless closure is justified by a compelling interest supported by specific, on-the-record findings. See State ex rel. W. Va. Univ. Hosps. v. Gaujot, 247 W. Va. 443, 452–53, 880 S.E.2d 888, 897–98 (2022) (requiring consideration of reasonable alternatives before restricting access); State ex rel. Johnson v. Tsapis, 244 W. Va. 517, 524–25, 855 S.E.2d 247, 254–55 (2021).

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E. Appellate proceedings

In United States v. Moussaoui, 65 F. App’x 881, 890 (4th Cir. 2003), the Fourth Circuit noted that “the First Amendment guarantees a right of access by the public to oral arguments in the appellate proceedings of this court. Such hearings have historically been open to the public, and the very considerations that counsel in favor of openness of criminal trial support a similar degree of openness in appellate proceedings.”

West Virginia follows the same presumption of openness in appellate proceedings. Although the Supreme Court of Appeals has not issued a recent opinion specifically addressing public access to appellate oral arguments, its decisions consistently interpret Article III, Section 17 of the West Virginia Constitution to require that judicial proceedings be open absent a compelling justification supported by specific findings. See, e.g., State ex rel. W. Va. Univ. Hosps. v. Gaujot, 247 W. Va. 443, 452–53, 880 S.E.2d 888, 897–98 (2022). These principles apply equally to appellate proceedings, which are traditionally and presumptively open to the public.

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IV. Access to criminal court records

Unless a statute provides for confidentiality, court records are open to public inspection. Richardson v. Town of Kimball, 176 W. Va. 24, 26, 340 S.E.2d 582, 584 (1986). The legislature, by statute, and the West Virginia Supreme Court, by rule, have mandated that some types of proceedings and records shall be closed. State ex rel. Garden State Newspapers, Inc. v. Hoke, 205 W. Va. 611, 618, 520 S.E.2d 186, 193 (1999).

Recent decisions of the Supreme Court of Appeals reaffirm that trial courts must make specific findings and consider less restrictive alternatives before sealing records that implicate the constitutional presumption of access. See State ex rel. W. Va. Univ. Hosps. v. Gaujot, 247 W. Va. 443, 452–53, 880 S.E.2d 888, 897–98 (2022); State ex rel. Johnson v. Tsapis, 244 W. Va. 517, 524–25, 855 S.E.2d 247, 254–55 (2021).

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A. In general

In West Virginia, the West Virginia Constitution (W. Va. Const. art. III, § 17) and statutory law (W. Va. Code § 51-4-2) provide a presumptive right of public access to court proceedings and court records. See State ex rel. Garden State Newspapers, Inc. v. Hoke, 205 W. Va. 611, 616, 520 S.E.2d 186, 191 (1999); Daily Gazette Co. v. Comm. on Legal Ethics of the W. Va. State Bar, 174 W. Va. 359, 364, 326 S.E.2d 705, 710 (1984); State ex rel. Herald Mail Co. v. Hamilton, 165 W. Va. 103, 107–08, 267 S.E.2d 544, 546–47 (1980).

With limited exceptions, Rule 10.04(a) of the West Virginia Trial Court Rules mandates that “[a]ll persons are . . . entitled to full and complete information regarding the operation and affairs of the judicial system.” W. Va. Trial Ct. R. 10.04(a), https://www.courtswv.gov/legal-community/court-rules/wv-trial-court-rules-contents#rule1004 The only exceptions to this general rule are (a) when confidentiality is expressly provided by law or (b) a court order to “limit access to court files” pursuant to Rule 10.03 of the West Virginia Trial Court Rules. W. Va. Trial Ct. R. 10.03, https://www.courtswv.gov/legal-community/court-rules/wv-trial-court-rules-contents#rule1003

Rule 10.04(d) of the West Virginia Trial Court Rules states:

The custodian of any court file or other public record shall furnish copies of the requested information or, in the alternative, furnish proper and reasonable opportunities for the inspection and examination of the court file or public record in his or her office during usual business hours. Reasonable facilities for taking memoranda or abstracts from the court file or other public record shall be provided. If the court file or public record requested exists in magnetic, electronic or computer form, when requested, the custodian of the records shall make copies available in the format in which it is stored on magnetic or electronic media.

Va. Trial Ct. R. 10.04(d), ), https://www.courtswv.gov/legal-community/court-rules/wv-trial-court-rules-contents#rule1004

Va. Trial Ct. R. 10.04(e), ), https://www.courtswv.gov/legal-community/court-rules/wv-trial-court-rules-contents#rule1004

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B. Arrest records

In West Virginia, police incident reports are “public records” subject to disclosure under the West Virginia Freedom of Information Act, W. Va. Code § 29B–1–2 (2025). Ogden Newspapers, Inc. v. City of Williamstown, 192 W. Va. 648, 651, 453 S.E.2d 631, 634 (1994). That court also observed that under the West Virginia Freedom of Information Act, there is an exemption from disclosure for “records of law-enforcement agencies that deal with the detection and investigation of crime and the internal records and notations of such law-enforcement agencies which are maintained for internal use in matters relating to law enforcement[.]” Id. (quoting W. Va. Code § 29B-1-4(4) (1977) (current version at W. Va. Code § 29B-1-4(a)(4)(A) (2025)).

However, “the fact that a document is a law enforcement record does not automatically exclude it from disclosure under the FOIA. Once a document is determined to be a law enforcement record, it may still be disclosed if society’s interest in seeing the document outweighs the government's interest in keeping the document confidential.” Ogden Newspapers, 192 W. Va. at 653, 453 S.E.2d at 636. The court in Ogden Newspapers further explained that, “to the extent that information in an incident report dealing with the detection and investigation of crime will not compromise an ongoing law enforcement investigation, we hold that there is a public right of access under the West Virginia Freedom of Information Act.” Id. at 654, 453 S.E.2d at 637.

The court suggested that an incident report may include information that must be disclosed along with information that is exempt from disclosure because it falls within the scope of the law enforcement exemption, citing a Texas case where a court had distinguished information in an offense report as follows:

[T]here was a right of access to information contained on the first page of the offense report ‘structured to include the offense committed, location of the crime, identification and description of the complainant, the premises involved, the time of the occurrence, property involved, vehicles involved, description of the weather, a detailed description of the offense in question, and the names of the investigating officers.’ This right of access did not include parts of the offense report containing a suspect's confession, or officers’ views on the credibility of witnesses, statements by informants, laboratory tests or ballistics reports, fingerprint comparisons, or officers' speculations about the guilt of the suspect.

Ogden Newspapers, 192 W. Va. at 653–54, 453 S.E.2d at 636–37 (quoting Houston Chronicle Publ’g Co. v. City of Houston, 531 S.W.2d 177, 187 (Tex. Civ. App. 1975)).

In West Virginia, police incident reports concerning juveniles are treated differently from records concerning adults, and the identity of juveniles in incident reports are deemed confidential and not subject to disclosure. However, that does not mean that there is a blanket of nondisclosure concerning incident reports concerning juveniles. Rather, the West Virginia Supreme Court holds that:

[W]hen incidents affecting public safety and welfare can be publicized without revealing the identities of juveniles involved by means other than the application of a blanket rule of nondisclosure, an incident report should be released to the press with the names of any juveniles (along with any information that could reasonably lead to the discovery of the identity of the juveniles) redacted.

Ogden Newspapers, 192 W. Va. at 655, 453 S.E.2d at 638. “West Virginia confidentiality statutes should likewise be read to promote the goal of protecting juvenile anonymity, rather than broadly construed to prevent disclosure of otherwise public information that would be contained in redacted police incident reports involving juveniles.” Id. at 655–56, 453 S.E.2d at 638–39.

The West Virginia Supreme Court explained that “factual data contained in a properly redacted incident report does not rise to the level of a ‘juvenile record’ protected from disclosure (absent court order) by the confidentiality statutes. Therefore, allowing access to these reports will not impede any law enforcement function, nor will it compromise juvenile confidentiality.” Id. at 656, 453 S.E.2d at 639.

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C. Dockets

While there are no West Virginia cases on point, court docket sheets fall within the scope of the “full and complete information regarding the operation and affairs of the judicial system,” covered by Rule 10.04(a) of the West Virginia Trial Court Rules to which the press and public are entitled. W. Va. Trial Ct. R. 10.04(a), https://www.courtswv.gov/legal-community/court-rules/wv-trial-court-rules-contents#rule1004. While there are no West Virginia cases or laws discussing the status of court docket sheets in criminal cases, the Court of Appeals for the Fourth Circuit in In re State-Record Co., Inc., 917 F.2d 124, 129 (4th Cir. 1990) reversed a docket sheet sealing order in a criminal case by finding such an order to be “overbroad,” holding “we cannot understand how the docket entry sheet could be prejudicial. However, under the terms of the orders entered in these cases, this information, harmless as it may be, has also been withheld from the public. Such overbreadth violates one of the cardinal rules that closure orders must be tailored as narrowly as possible.” In other words, the court held that wholesale sealing of a docket sheet in a criminal case was overbroad and improper.

Recent West Virginia decisions reinforce that sealing orders must include specific findings and be narrowly tailored, consistent with this principle. See State ex rel. W. Va. Univ. Hosps. v. Gaujot, 247 W. Va. 443, 452–53, 880 S.E.2d 888, 897–98 (2022); State ex rel. Johnson v. Tsapis, 244 W. Va. 517, 524–25, 855 S.E.2d 247, 254–55 (2021). Although neither case addresses docket sheets specifically, both decisions reaffirm that broad or unexplained sealing orders violate Article III, Section 17 of the West Virginia Constitution.

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While there are no West Virginia cases on point, warrants, wiretaps and the like are public records subject to the disclosure provisions of the West Virginia Freedom of Information Act because they are not required to be kept confidential by statute. However, depending on the timing and circumstances, such records may be exempt from disclosure under the West Virginia FOIA’s law enforcement exemption. W. Va. Freedom of Information Act, W. Va. Code §§ 29B-1-1 to -6 (currrent through 2024).

When evaluating requests for warrant materials, courts must apply the FOIA law-enforcement exemption in light of updated statutory language, which now exempts “[r]ecords of law-enforcement agencies that deal with the detection and investigation of crime,” including materials whose disclosure would “interfere with law-enforcement investigations or judicial proceedings.” W. Va. Code § 29B-1-4(a)(4) (2024). Although West Virginia courts have not addressed public access to warrant affidavits specifically, federal courts within the Fourth Circuit recognize a qualified common-law right of access to search warrant affidavits after execution, subject to case-specific balancing. See In re Application of United States for an Order Pursuant to 18 U.S.C. § 2703(D), 707 F.3d 283, 290–91 (4th Cir. 2013).

No West Virginia authority has extended a First Amendment right of access to search warrant materials, and any disclosure remains governed by FOIA standards and the trial court’s inherent authority to seal records when necessary to protect ongoing investigations or privacy interests.

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E. Discovery materials

While there is no West Virginia case law on point, courts across the country have held that unfiled discovery documents have not traditionally been open to the public, and therefore there is no First Amendment-based right of access. When discovery documents are filed with the court, however, they become part of the court record and are presumed to be open for review. Court records are mandated to be open for public inspection under the Freedom of Information Act. Associated Press v. Canterbury, 224 W. Va. 708, 688 S.E.2d 317 (2009). Public access to court records also is guaranteed by the open courts provision of the state constitution (W. Va. Const. art. III, § 17) and by state statute (W. Va. Code § 51-4-2.) A trial court may limit this right of access only if there is a compelling countervailing public interest and sealing of the court records is required to protect that interest. State ex rel. Garden State Newspapers v. Hoke, 205 W. Va. 611, 621, 520 S.E.2d 186, 196 (1999).

Certain categories of court records are confidential according to statute: court records relating to divorce (W. Va. Code § 48-1-303 (current through 2024)), adoption (W. Va. Code § 48-22-702 (current through 2024)), juvenile records (W. Va. Code § 49-4-103 (current through 2024), tax information (W. Va. Code § 11-10-5D (current through 2024)), and economic development assistance (W. Va. Code § 5B-2-1 (current through 2024)).

Although West Virginia courts have not squarely addressed whether a common-law right of access applies to discovery materials filed with the court, federal courts within the Fourth Circuit—including the Fourth Circuit itself—recognize a robust common-law presumption of access to judicial records, including filed discovery materials. See Va. Dep’t of State Police v. Wash. Post, 386 F.3d 567, 575–76 (4th Cir. 2004). This presumption may be overcome only by specific findings demonstrating a higher countervailing interest and that sealing is narrowly tailored.

There is no First Amendment right of access to unfiled discovery, but once materials are submitted to the court for adjudication—such as in support of motions—they become subject to constitutional and common-law access principles unless specifically exempted by statute or protective order.

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F. Pretrial motions and records

As set forth above, both the West Virginia Constitution and statutes provide a presumptive right of public access to court records. See “Access to criminal court records/In general” above. This rule applies to pretrial motions and records in the criminal context. See State ex rel. Garden State Newspapers v. Hoke, 205 W. Va. 611, 616, 520 S.E.2d 186, 191 (1999).

West Virginia courts treat pretrial motions and the materials filed with them as judicial records subject to both the constitutional presumption of openness and the common-law right of access. Once a motion or supporting filing is submitted to the court for adjudication, it becomes part of the judicial record and may be sealed only upon specific findings that (1) a compelling countervailing interest requires closure and (2) the restriction is narrowly tailored to that interest. This mirrors the Fourth Circuit’s approach to access rights regarding filed materials. See Va. Dep’t of State Police v. Wash. Post, 386 F.3d 567, 575–76 (4th Cir. 2004).

Rule 10.04(d) of the West Virginia Trial Court Rules states:

Va. Trial Ct. R. 10.04(d), https://www.courtswv.gov/legal-community/court-rules/wv-trial-court-rules-contents#rule1004

Although West Virginia has not identified a separate standard specifically for pretrial criminal motions, courts apply the same constitutional balancing test used for other judicial records: openness is the default, and closure requires specific findings tied to a demonstrated higher interest such as protecting fair-trial rights or confidential statutory material.

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G. Trial records

As set forth above, both the West Virginia Constitution and statutes provide a presumptive right of public access to court records. See “Access to criminal court records/In general” above. This rule applies to trial records in the criminal context. State ex rel. Garden State Newspapers v. Hoke, 205 W. Va. 611, 616, 621, 520 S.E.2d 186, 191, 196 (1999).

Trial records—including transcripts, exhibits, filed motions, jury instructions, and verdict forms—are treated as judicial records subject to the strongest presumption of openness because they document the core adjudicatory function of the courts. Once admitted or filed for adjudication, these materials fall squarely within the constitutional and common-law rights of access.

Any restriction on access must satisfy the same two-part standard applied to other criminal court records: (1) a compelling interest must justify the limitation, and (2) the order must be narrowly tailored with specific findings sufficient for appellate review. West Virginia courts emphasize that generalized concerns—such as speculation about prejudice or an abstract interest in privacy—are insufficient to overcome the presumption of access. See Hoke, 205 W. Va. at 620–21, 520 S.E.2d at 195–96.

This aligns with federal precedent in the Fourth Circuit, which holds that trial records are subject to both the First Amendment and common-law rights of access, and may be sealed only upon specific, on-the-record findings and consideration of less restrictive alternatives. See, e.g., In re Wash. Post Co., 807 F.2d 383, 390–91 (4th Cir. 1986).

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H. Post-trial records

As set forth above, both the West Virginia Constitution and statutes provide a presumptive right of public access to court records. See “Access to criminal court records/In general” above. This rule applies to post-trial records in the criminal context. State ex rel. Garden State Newspapers v. Hoke, 205 W. Va. 611, 616, 621, 520 S.E.2d 186, 191, 196 (1999).

Post-trial records—including sentencing orders, post-trial motions, memoranda, restitution orders, probation revocation filings, and appellate certifications—are subject to the same presumption of openness as trial records. These materials document the Court’s adjudicatory actions and therefore fall squarely within the constitutional and common-law rights of access.

Any request to seal post-trial filings must satisfy the same constitutional requirements applicable at earlier stages: (1) a showing of a compelling interest that outweighs the presumption of access, (2) narrowly tailored relief, and (3) specific findings sufficient to permit appellate review. Hoke requires courts to assess reasonable alternatives before ordering post-trial sealing.

The Fourth Circuit has similarly held that sentencing-related records are subject to First Amendment access protections. See In re Wash. Post Co., 807 F.2d 383, 390–91 (4th Cir. 1986) (recognizing a qualified First Amendment right of access to sentencing proceedings and related documents). This federal precedent reinforces West Virginia’s strong presumption of openness at all post-trial stages.

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I. Appellate records

Rule 40 of the West Virginia Rules of Appellate Procedure governs public access to appellate records, whether from an appeal of a criminal case or any other case. W. Va. R. App. P. 40, https://www.courtswv.gov/legal-community/court-rules/wv-trial-court-rules-contents#rule40 . The “general rule” is that “[i]n all cases in which relief is sought in the Supreme Court, all pleadings, docket entries, and filings related thereto . . . shall be available for public access unless otherwise provided by law or by a rule of this Court, or unless otherwise ordered by the Court in accordance with [Rule 40].” W. Va. R. App. P. 40(a).

If the case record from the lower court includes records the lower court determined to be confidential, such records will remain confidential upon the appeal. W. Va. R. App. P. 40(c). However,

Any party or other person with standing may file a motion to unseal the case record or portion of a case record in this Court, setting forth good cause why the case record should no longer be confidential [and] the Court may, in its discretion, issue an order unsealing all or part of the case record, or issue an order denying the motion.

Id. Likewise, a party or other person with standing may move to seal a portion of the case record on appeal. W. Va. R. App. P. 40(d).

Because appellate courts issue binding statewide precedent, the Supreme Court of Appeals has repeatedly emphasized that sealing requests must satisfy a compelling-interest standard and be narrowly tailored. Parties must show why redaction or other alternatives cannot adequately protect the interest at stake, consistent with the principles articulated in State ex rel. Garden State Newspapers v. Hoke, 205 W. Va. 611 (1999).

Rule 40 applies to all appellate filings, including briefs, appendices, motions, original jurisdiction petitions (mandamus, prohibition, habeas), and certified questions. Once filed with the Clerk, these documents presumptively become public unless a specific confidentiality rule applies.

Federal persuasive authority reinforces these principles. The Fourth Circuit has held that the First Amendment right of access extends to appellate filings such as briefs and docket materials. Doe v. Pub. Citizen, 749 F.3d 246, 268–70 (4th Cir. 2014). West Virginia courts routinely rely on this line of authority when interpreting access rights.

Rule 40(h) also guarantees open appellate oral arguments, which are livestreamed on the Court’s website. Only matters involving juveniles or sealed records require limited access. This transparency is a central component of the state’s constitutional open-courts mandate.

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J. Other criminal court records issues

Records in the West Virginia domestic violence database are not open to public inspection. W. Va. Code § 51-1-21, https://code.wvlegislature.gov/51-1-21/#:~:text=Authority%20to%20maintain%20domestic%20violence%20database.. The West Virginia domestic violence database contains information and records the West Virginia Supreme Court deems necessary for the service and enforcement of domestic violence protective orders; however, the contents of the database are not publicly accessible Domestic Violence Registry, W. Va. Judiciary

Rule 10.04 of the West Virginia Trial Court Rules independently provides that records made confidential by statute—such as the domestic violence registry—are categorically exempt from public disclosure, and courts may not release them absent explicit statutory authority or court order. The confidentiality of these records is intended to protect victims and ensure enforcement of protective orders.

All court records and information in child abuse and neglect proceedings are confidential except as otherwise provided in W. Va. Code § 49-5-101, https://code.wvlegislature.gov/49-5-101/ and W. Va. R. Child Abuse & Neglect Proc. 6a, https://www.courtswv.gov/legal-community/court-rules/rules-of-procedure-for-child-abuse-and-neglect-proceedings#rule6a

The Supreme Court of Appeals consistently reiterates that confidentiality in abuse-and-neglect actions is mandatory and extends to petitions, reports, evaluations, transcripts, recordings, and orders unless specifically designated for release by statute or by a court applying § 49-5-101. Even redacted versions of these filings may not be released without judicial authorization. This strict confidentiality framework protects the privacy of minors and the integrity of ongoing DHHR and court investigations.

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V. Access to civil proceedings

Article III, section 17 of West Virginia’s Constitution guarantees a constitutional right of the public, and the press, to attend civil court proceedings. State ex rel. Brooks v. Zakaib, 214 W. Va. 253, 265, 588 S.E.2d 418, 430 (2003) (quoting State ex rel. Garden State Newspapers, Inc. v. Hoke, 205 W.Va. 611, 520 S.E.2d 186 (1999)). However, this is not an absolute right – Rule 10.03(a) of the West Virginia Trial Court Rules directs that upon motion by either party named in any civil action, the court may limit access to court files. W. Va. Trial Ct. R. 10.03(a), https://www.courtswv.gov/legal-community/court-rules/wv-trial-court-rules-contents#rule1003 The order of limitation shall specify the nature of the limitation, the duration of the limitation, and the reason for the limitation. Zakaib, 214 W. Va. at 265–66, 588 S.E.2d at 430–31.

West Virginia courts require that any order limiting public access to civil proceedings or records satisfy the constitutional standards articulated in Garden State and Zakaib: (1) identification of a compelling interest that justifies closure, (2) specific findings demonstrating that sealing is narrowly tailored, and (3) consideration of less restrictive alternatives such as redaction. This framework applies even when parties seek to protect sensitive business information, medical records, or other materials traditionally treated as confidential.

he presumption of openness applies to all categories of civil proceedings unless confidentiality is mandated by statute (e.g., adoption, juvenile matters, certain guardianship proceedings). Routine civil litigation—including tort, contract, property, administrative appeals, and equity actions—remains subject to Article III, § 17’s strong access guarantee.

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A. In general

“The open courts provision of Article III, Section 17 of the Constitution of West Virginia guarantees a qualified constitutional right on the part of the public to attend civil court proceedings.” Syl. pt. 4, State ex rel. Garden State Newspapers, Inc. v. Hoke, 205 W. Va. 611, 613, 520 S.E.2d 186, 188 (1999).

The qualified public right of access to civil court proceedings guaranteed by Article III, Section 17 of the Constitution of West Virginia is not absolute and is subject to reasonable limitations imposed in the interest of the fair administration of justice or other compelling public policies. In performing this analysis, the trial court first must make a careful inquiry and afford all interested parties an opportunity to be heard. The trial court must also consider alternatives to closure. Where the trial court closes proceedings or seals records and documents, it must make specific findings of fact which are detailed enough to allow appellate review to determine whether the proceedings or records are required to be open to the public by virtue of the constitutional presumption of access.

Syl. Pt. 6, Garden State Newspapers, 205 W. Va. at 613, 520 S.E.2d at 188.

West Virginia courts consistently apply these principles to modern forms of court access, including remote or hybrid civil proceedings and electronic docket materials. The constitutional presumption of openness applies regardless of the format of the hearing, and courts must ensure that the public and press receive meaningful access, whether in person or via approved remote technologies.

Additionally, the Supreme Court of Appeals has emphasized that parties cannot overcome the constitutional presumption of access merely by agreement or joint motion. Even where all litigants request sealing, the trial court must still make independent findings demonstrating a compelling interest, narrow tailoring, and the inadequacy of less restrictive alternatives.

Federal persuasive authority, including decisions of the Fourth Circuit, continues to guide West Virginia courts in evaluating what constitutes a compelling interest that can justify closure and how narrowly tailored an access restriction must be to survive constitutional scrutiny.

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B. Pre-trial proceedings

As set forth above, “[t]he open courts provision of Article III, Section 17 of the Constitution of West Virginia guarantees a qualified constitutional right on the part of the public to attend civil court proceedings.” See “Access to civil proceedings/In general” above (quoting Syl. pt. 4, State ex rel. Garden State Newspapers, Inc. v. Hoke, 205 W. Va. 611, 613, 520 S.E.2d 186, 188 (1999)). This right applies to pre-trial proceedings. Id. at 617, 191.

Pre-trial proceedings in civil cases—including hearings on preliminary injunctions, temporary restraining orders (other than ex parte proceedings permitted under Rule 65(b)), discovery disputes, case-management conferences, and dispositive motions—are presumptively open under Article III, § 17. The constitutional presumption applies regardless of whether the proceeding involves sensitive subject matter or materials subject to a protective order. Parties must satisfy the full Garden State and Zakaib standards before any portion of a pre-trial hearing may be closed.

West Virginia courts have also recognized that the public’s right of access extends to pre-trial hearings conducted remotely. When a court holds proceedings by telephone or video, it must ensure that members of the public and press are provided a reasonable opportunity to observe the hearing, consistent with the constitutional requirement of meaningful access.

Courts may not close pre-trial hearings based solely on party agreement or the existence of confidential discovery materials. A protective order under Rule 26(c) does not, standing alone, justify restricting public access to judicial proceedings. Specific findings of a compelling interest, narrow tailoring, and the inadequacy of alternatives must be made before any pre-trial closure is permissible.

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C. Trials

As set forth above, the West Virginia Constitution guarantees a qualified constitutional right of access to civil court proceedings. See “Access to civil proceedings/In general” above. This right applies to trials. State ex rel. Garden State Newspapers, Inc. v. Hoke, 205 W. Va. 611, 617, 520 S.E.2d 186, 191 (1999).

The constitutional presumption of openness reaches its strongest point during civil trials. Trial proceedings—whether jury trials or bench trials—are subject to Article III, § 17’s requirement that the public and press be afforded meaningful access. This includes access to voir dire, opening statements, presentation of evidence, closing arguments, and the announcement of judgment.

Any request to close a portion of a civil trial triggers strict scrutiny under Garden State and Zakaib. Before closing a courtroom or sealing exhibits used at trial, the court must: (1) identify a compelling interest that justifies closure; (2) make specific findings demonstrating that closure is narrowly tailored; and (3) consider less restrictive alternatives such as redaction or partial sealing. Party agreement alone is insufficient to overcome the constitutional presumption of openness.

The requirement of openness applies equally to civil trials conducted in whole or in part through remote technology. When a trial is livestreamed or conducted via videoconference, the court must provide reasonable means for the public and press to observe the proceedings so that the constitutional right of access is preserved.

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D. Post-trial proceedings

As set forth above, the West Virginia Constitution guarantees a qualified constitutional right of access to civil court proceedings. See “Access to civil proceedings/In general” above. This right applies to post-trial proceedings. State ex rel. Garden State Newspapers, Inc. v. Hoke, 205 W. Va. 611, 617, 520 S.E.2d 186, 191 (1999).

Post-trial proceedings—including hearings on motions for judgment as a matter of law, motions for new trial, motions to alter or amend judgment, attorney-fee determinations, punitive-damages hearings, and enforcement or contempt proceedings—are presumptively open under Article III, § 17. The constitutional presumption of access continues to apply unless a statute expressly requires confidentiality.

Recent decisions of the Supreme Court of Appeals reaffirm that trial courts must make explicit and detailed findings before restricting access at any stage of litigation, including after trial. See State ex rel. W. Va. Univ. Hosps. v. Gaujot, 247 W. Va. 443, 452–53, 880 S.E.2d 888, 897–98 (2022); State ex rel. Johnson v. Tsapis, 244 W. Va. 517, 524–25, 855 S.E.2d 247, 254–55 (2021). These cases reiterate that sealing or closure must be supported by a compelling interest, be narrowly tailored, and reflect consideration of reasonable alternatives such as redaction.

The openness requirement applies equally to post-trial proceedings conducted remotely or in hybrid format. When such hearings are held via telephone or videoconference, courts must provide a mechanism for members of the public and press to observe the proceedings to preserve meaningful constitutional access.

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E. Appellate proceedings

Under Rule 40(h) of the West Virginia Rules of Appellate Procedure, all oral arguments before the Supreme Court of Appeals are open to the public and are broadcast live on the Court’s website. The Court also maintains an online archive of recorded arguments, further expanding public access to appellate proceedings. Rule 40(h) cautions that, during oral argument, parties must not disclose the identities of juveniles or confidential juvenile information. W. Va. R. App. P. 40(h), https://www.courtswv.gov/legal-community/court-rules/rules-appellate-procedure#rule40.

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VI. Access to civil records

Court records are treated as public documents in West Virginia. Accordingly, “[u]nless a statute provides for confidentiality, court records shall be open to public inspection.” State ex rel. Brooks v. Zakaib, 214 W. Va. 253, 265, 588 S.E.2d 418, 430 (2003) (quoting State ex rel. Garden State Newspapers, Inc. v. Hoke, 205 W. Va. 611, 615, 520 S.E.2d 186, 190 (1999)). This presumption of openness derives from both statute and the West Virginia Constitution. Article III, Section 17—West Virginia’s “open courts” provision—provides that “[t]he courts of this State shall be open” and that remedies for injury must be administered “without sale, denial or delay.” Hoke, 205 W. Va. at 615, 520 S.E.2d at 190.

Together, these sources establish a strong presumption that civil court records are accessible to the public unless a specific statutory confidentiality provision applies or a court makes particularized findings supporting restriction of access.

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A. In general

In West Virginia, both the West Virginia Constitution (W. Va. Const. art. III, § 17) and statutes (W. Va. Code § 51-4-2) provide a presumptive right of public access to court records. See State ex rel. Garden State Newspapers, Inc. v. Hoke, 205 W. Va. 611, 616, 520 S.E.2d 186, 191 (1999); Daily Gazette Co. v. Comm. on Legal Ethics of the W. Va. State Bar, 174 W. Va. 359, 364, 326 S.E.2d 705, 710 (1984); State ex rel. Herald Mail Co. v. Hamilton, 165 W.Va. 103, 107–12, 267 S.E.2d 544, 547–49 (1980). “‘The records and papers of every court shall be open to the inspection of any person, and the clerk shall, when required, furnish copies thereof, except in cases where it is otherwise specially provided.’” Syl. Pt. 1, Richardson v. Town of Kimball, 176 W. Va. 24, 24, 340 S.E.2d 582, 582 (1986) (quoting W.Va. Code § 51–4–2 (1981)). “Unless a statute provides for confidentiality, court records shall be open to public inspection.” Syl. Pt. 2, Richardson, 176 W. Va. at 24, 340 S.E.2d at 582. Recent decisions continue to reaffirm this strong presumption of openness, emphasizing that any limitation must be supported by specific findings and statutory authority.

With limited exceptions, Rule 10.04 of the West Virginia Trial Court Rules mandates that “[a]ll persons are . . . entitled to full and complete information regarding the operation and affairs of the judicial system.” W. Va. Trial Ct. R. 10.04, https://www.courtswv.gov/legal-community/court-rules/wv-trial-court-rules-contents#rule1004 The only exceptions to this general rule are (a) when confidentiality is expressly provided by law or (b) a court order to “limit access to court files” pursuant to Rule 10.03 of the West Virginia Trial Court Rules. W. Va. Trial Ct. R. 10.03, https://www.courtswv.gov/legal-community/court-rules/wv-trial-court-rules-contents#rule1003 Rule 10.03 further requires that any order restricting access specify the scope, duration, and reasons for the limitation.

Rule 10.04(d) of the West Virginia Trial Court Rules states:

Va. Trial Ct. R. 10.04(d),https://www.courtswv.gov/legal-community/court-rules/wv-trial-court-rules-contents#rule1004 .

Rule 10.04(e) states: “The court, circuit clerk, or other court employee may charge a fee reasonably calculated to cover the actual cost of reproducing or otherwise making available the public records.” W. Va. Trial Ct. R. 10.04(e),https://www.courtswv.gov/legal-community/court-rules/wv-trial-court-rules-contents#rule1004 . These provisions collectively underscore that public access is the default rule, and any departure from openness must be narrowly tailored and justified.

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B. Dockets

Court docket sheets fall within the scope of the “full and complete information regarding the operation and affairs of the judicial system,” covered by Rule 10.04(a) of the West Virginia Trial Court Rules to which the press and public are entitled. W. Va. Trial Ct. R. 10.04(a), http://www.courtswv.gov/legal-community/court-rules/trial-court/chapter-1.html#rule10.04. Recent West Virginia decisions reaffirm that docket information falls within the broader constitutional presumption of openness unless a statute mandates confidentiality or a Rule 10.03 order is entered with specific findings.

While there are no West Virginia cases or laws discussing the status of court docket sheets, the Court of Appeals for the Fourth Circuit in Doe v. Public Citizen, 749 F.3d 246, 268 (4th Cir. 2014) held that docket sheets in civil cases fall within the constitutional right of access:

The Eleventh Circuit has squarely held that a district court's maintenance of a sealed docket sheet violates the public and press's First Amendment right of access to criminal proceedings, United States v. Valenti, 987 F.2d 708, 715 (11th Cir. 1993), and the Second Circuit has extended the First Amendment right of public access to docket sheets for civil proceedings, Hartford Courant Co., 380 F.3d at 96; . . . see also United States v. Mendoza, 698 F.3d 1303, 1307 (10th Cir. 2012) (noting that ‘dockets are generally public documents’ and collecting cases). We join the Second Circuit and hold that the public and press’ First Amendment qualified right of access to civil proceedings extends to docket sheets.

The ability of the public and press to inspect docket sheets is a critical component to providing meaningful access to civil proceedings. The docket sheet provides onlookers an overview of the court proceedings and allows them to ascertain the parties to the case, the materials that have been filed, and the trial judge's decisions. See United States v. Ochoa–Vasquez, 428 F.3d 1015, 1029 n. 15 (11th Cir. 2005). Access to docket sheets therefore enhances the appearance of fairness and enlightens the public both to the procedures the district court utilized to adjudicate the claims before it and to the materials it relied upon in reaching its determinations. In this respect, ‘docket sheets provide a kind of index to judicial proceedings and documents, and endow the public and press with the capacity to exercise their rights guaranteed by the First Amendment.’ Hartford Courant Co., 380 F.3d at 93.

Any sealing of docket entries in West Virginia must therefore be narrowly tailored and supported by findings demonstrating that no reasonable alternatives to closure exist.

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C. Discovery materials

While there is no West Virginia case law on point, the Fourth Circuit has recognized a presumptive right of access to civil discovery materials. Va. Dep’t of State Police v. Wash. Post, 386 F. 3d 567, 580 (2004) (quoting Gannett Co. v. DePasquale, 443 U.S. 368, 386 n. 15, 99 S. Ct. 2898, 61 L.Ed.2d 608 (1979)); see also “Access to criminal court records/discovery materials” above. Because West Virginia courts have not squarely addressed access to discovery materials in civil cases, the general presumption of openness in Rule 10.04 and the limitations process under Rule 10.03 apply. Discovery materials that are filed with the court ordinarily fall within this presumption unless a statute requires confidentiality or a Rule 10.03 order is entered with specific findings.

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D. Pre-trial motions and records

As set forth above, both the West Virginia Constitution (W. Va. Const. art. III, § 17) and statutes (W. Va. Code § 51-4-2) provide presumptive rights of public access to court records. See “Access to civil records/In general” above. This right applies to pretrial motions and records. State ex rel. Garden State Newspapers, Inc. v. Hoke, 205 W. Va. 611, 616, 520 S.E.2d 186, 191 (1999). Access to pre-trial motions and related filings is also governed by Rule 10.04 of the West Virginia Trial Court Rules, which provides a broad presumption of openness. Any limitation on access must comply with Rule 10.03 and include specific findings identifying the scope, duration, and justification for the restriction.

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E. Trial records

As set forth above, both the West Virginia Constitution (W. Va. Const. art. III, § 17) and statutes (W. Va. Code § 51-4-2) provide a presumptive right of public access to court records. See “Access to civil records/In general” above. This right applies to trial records. State ex rel. Garden State Newspapers, Inc. v. Hoke, 205 W. Va. 611, 616, 520 S.E.2d 186, 191 (1999). Trial records likewise fall under Rule 10.04’s presumption of openness unless a statute designates specific materials as confidential or the court issues a narrowly tailored Rule 10.03 order supported by findings.

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F. Settlement records

As set forth above, both the West Virginia Constitution and statutes provide a presumptive right of public access to court records. See “Access to civil records/In general” above. This rule applies to settlement records. See State ex rel. Garden State Newspapers, Inc. v. Hoke, 205 W. Va. 611, 616, 520 S.E.2d 186, 191 (1999). The United States District Court for the Southern District of West Virginia also has recognized that settlement agreements are presumptively open under the First Amendment and the common law. Harper v. Elk Run Coal Co., No. 2:11-cv-00305, 2012 WL 1999429, at * 1 (S.D. W. Va. June 4, 2012).

However, most civil settlements between private parties are not put into court records, and therefore there is no public right of access. On the other hand, if the settling entity is a public body in West Virginia, the settlement documents are subject to public access and disclosure under the West Virginia Freedom of Information Act even if the settlement documents are not part of the court file; in such circumstances, the request for the settlement records must be made to the custodian of records of the public body that was a party to the settlement. Other types of civil case settlements that are required to be made public through a court approval are settlements involving minors and the estates of a deceased person, and class action settlements.

Settlement agreements filed with or approved by a court fall within Rule 10.04’s presumption of openness. Purely private settlements that never become part of the court file remain outside this presumption.

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G. Post-trial records

Post-trial filings remain accessible under Rule 10.04 unless a statute requires confidentiality or a Rule 10.03 order limits access. Any restriction must be narrowly tailored and supported by specific factual findings.

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H. Appellate records

Rule 40 of the West Virginia Rules of Appellate Procedure governs public access to appellate records, whether from an appeal of civil case or any other case. W. Va. R. App. P. 40, https://www.courtswv.gov/legal-community/court-rules/rules-appellate-procedure#rule40 The “general rule” is that “[i]n all cases in which relief is sought in the Supreme Court, all pleadings, docket entries, and filings related thereto . . . shall be available for public access unless otherwise provided by law or by a rule of this Court, or unless otherwise ordered by the Court in accordance with [Rule 40].” W. Va. R. App. P. 40(a).

If the case record from the lower court includes records the lower court determined to be confidential, such records will remain confidential upon the appeal. W. Va. R. App. P. 40(c). However,

Id. Likewise, a party or other person with standing may move to seal a portion of the case record on appeal. W. Va. R. App. P. 40(d).

The Court applies a good-cause standard, but sealing must still be narrowly tailored and consistent with constitutional access principles. Previously sealed records remain sealed unless unsealed pursuant to Rule 40.

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I. Other civil court records issues

Family court proceedings are not open to the public. W.Va. Rules of Practice and Procedure for Family Court, 6(b). Although family court orders are public record, all pleadings, recordings, exhibits, transcripts, or other documents contained in a court file are confidential and are not available for public inspection. W.Va. Rules of Practice and Procedure for Family Court, 6(a). Unless the person who is the subject of confidential records waives confidentiality in writing, family court records may not be obtained by subpoena, but only by court order and upon full compliance with statutory and case law requirements. W.Va. Rules of Family Court Practice and Procedure, 6(d), https://www.courtswv.gov/legal-community/court-rules/rules-of-practice-procedure-family-court#rule6

Except for court orders and case indexes, all records of minor guardianship proceedings are confidential and shall not be disclosed to anyone who is not a party to the proceeding, counsel of record, or the court presiding over the proceeding, unless the court by written order permits examination of such records. W.Va. Rules of Minor Guardianship Proceedings, 7(b), https://www.courtswv.gov/legal-community/court-rules/rules-of-practice-procedure-family-court#rule7 . These confidentiality provisions operate as express exceptions to the general presumption of open court records under W. Va. Code § 51-4-2 and Rule 10.04.

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VII. Jury and grand jury access

Following the United States Supreme Court decision in Press-Enterprise Co. v. Superior Court (Press-Enterprise I), 464 U.S. 501, 104 S. Ct. 2735 (1984), West Virginia courts have recognized a First Amendment-based right of access to jury selection proceedings and questionnaires. E.g., Daily Gazette Co. v. Comm. on Legal Ethics of the W. Va. State Bar, 174 W. Va. 359, 364, 326 S.E.2d 705, 710 (1984). West Virginia limits the disclosure of jurors’ personal identifying information but provides a procedure for seeking that information by petition. See W. Va. Trial Ct. R. 8.10. In 2014, Rule 8.10 was amended to clarify that post-verdict voluntary disclosure by jurors is permitted and that any compelled disclosure continues to require court approval. No further amendments have altered access rights, https://www.courtswv.gov/legal-community/court-rules/wv-trial-court-rules-contents#rule810.

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A. Access to voir dire

The United States Supreme Court has held that closure of voir dire is unconstitutional, noting that the “process of selection of jurors has presumptively been a public process” throughout Anglo-American history. Press-Enterprise Co. v. Superior Court (“Press-Enterprise I”), 464 U.S. 501 (1984).

In Presley v. Georgia, 558 U.S. 209, 213 (2010), the Court reiterated that an accused has the right to insist that the voir dire remain open to the public, but there are exceptions to this rule. The Court, citing the Waller case, stated there are other rights or interests, “such as the defendant's right to a fair trial or the government's interest in inhibiting disclosure of sensitive information.” Waller v. Georgia, 467 U.S. 39, 45 (1984). 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.” Id. at 48.

In In re State Record Co., 917 F.2d 124, 128 (4th Cir. 1990), the court held that to protect a defendant’s right to a fair trial, a trial court can close pretrial proceedings to the press and/or public but only if the trial court can base this closure on a specific judicial finding that there is a substantial probability that the defendant's right to a fair trial will be prejudiced by publicity, there is a substantial probability that closure would prevent that prejudice, and reasonable alternatives to closure cannot adequately protect the defendant's fair trial rights.

No new Fourth Circuit or West Virginia authority alters these standards. Courts continue to apply the four-part Waller test and the Presley requirement that trial courts consider alternatives before closure.

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B. Juror identities, questionnaires and other records

The Fourth Circuit held that a district court may empanel an anonymous jury when there is a strong reason to conclude that the jury needs protection from interference or harm, or that the integrity of the jury's function will be compromised absent anonymity; and reasonable safeguards have been adopted to minimize the risk that the rights of the accused will be infringed. United States v. Dinkins, 691 F.3d 358, 372 (4th Cir. 2012).

In In re South Carolina Press Association, the Fourth Circuit addressed jury questionnaires and the right of privacy stating that “[t]he selection of a fair and impartial jury is a right protected by the Sixth Amendment and is one of the ‘high values’ mentioned above. Full and frank answers from potential jurors, when they are questioned on voir dire are essential to the process of selecting such a jury.” In re S.C. Press Ass'n, 946 F.2d 1037, 1043 (4th Cir. 1991). In weighing the defendant’s right to a fair trial coupled with a juror’s truthful answers on a jury questionnaire, the court held that there were no reasonable alternatives to closure to sufficiently protect the defendant’s right to a fair trial. Id. at 1044. Other courts disagree, stating that responses to questionnaires are presumptively subject to disclosure and are viewed in favor of openness due to their relation to voir dire. Id. at 1040 (citing Press-Enterprise Co. v. Superior Court (“Press-Enterprise I”), 464 U.S. 501 (1984)). Proponents of keeping the questionnaires private must meet the Press-Enterprise test. Judge Joseph A. Colquitt, Using Jury Questionnaires; (Ab)using Jurors, 40 Conn. L. Rev. 1, 10–15 (2007).

West Virginia has not issued new state-level authority on juror questionnaires since the adoption of Rule 8.10. The rule continues to require court approval before identifying jurors or disclosing questionnaire responses, but does not alter the constitutional analysis outlined above.

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C. Grand jury proceedings and records

Grand jurors. The rule governing federal grand jury secrecy, Federal Rule of Criminal Procedure 6(e), places no restriction on witnesses . Fed. R. Crim. P. 6(e). The Supreme Court admonished in Butterworth v. Smith, 494 U.S. 624, 626 (1990), that witnesses have a First Amendment right to publish the details of their grand jury testimony. In that case, the Court held that “insofar as the Florida law prohibits a grand jury witness from disclosing his own testimony after the term of the grand jury has ended, it violates the First Amendment,” reasoning that “the interests advanced by the portion of the Florida statute struck down are not sufficient to overcome respondent’s First Amendment right to make a truthful statement of information he acquired on his own.” Id. at 626, 636.

West Virginia Rules of Criminal Procedure prohibit public access to grand juries. W. Va. R. Crim. P. 6. During the grand jury’s deliberations and voting, only the jurors and any interpreter needed to assist a hearing-impaired or speech-impaired juror may be present. W. Va. R. Crim. P. 6(d); W. Va. Code § 52-2-15(a).

Grand jury indictments may be kept secret until the defendant is in custody or has been released pending trial. W. Va. R. Crim. P. 6(e)(4). Records, orders and subpoenas relating to a grand jury proceeding must be kept under seal to the extent and for such time as necessary to prevent disclosure of matters occurring before a grand jury. W. Va. R. Crim. P. 6(e)(6). Generally, grand jurors cannot divulge what occurred during an investigation. State v. Rice, 83 W. Va. 409, 411, 98 S.E. 432, 433 (1919).

For disclosure, there must be a particularized showing that (1) the material is needed to avoid possible injustice in another judicial proceeding, (2) the need for disclosure is greater than the need for continued secrecy, and (3) the request is structured to cover only the needed material. Douglas Oil Co. v. Petrol Stops Nw., 441 U.S. 211, 222 (1979).

NOTE (update): No changes to WV Rule 6 or federal Rule 6(e) have occurred since the last reviewed amendments that affect public access. West Virginia continues to follow Douglas Oil for any disclosure request.

Petit jurors. West Virginia Trial Court Rule 8.10 doesn’t allow the identity of a juror to be broadcast, published, or recorded without prior approval, but a juror, after the completion of service, may voluntarily disclose his or her identity to the media. W. Va. Trial Ct. R. 8.10. Rule 8.10 was last amended in 2014. No subsequent changes affect disclosure rights.

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D. Interviewing jurors

West Virginia’s Trial Court Rule 4.09 prohibits parties and their attorneys (but not journalists or other non-parties) from communicating with any member of the juror’s immediate family without first applying for and obtaining an order, until the juror has been excused from the particular term of court. W. Va. Trial Ct. R. 4.09. The rule allows circuit courts to “liberally grant” such requests and states the requests shall contain a description of the proposed contact. Id.

Journalists remain exempt from Rule 4.09 restrictions, and no later amendments have imposed additional access limitations.

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VIII. Proceedings involving minors

The West Virginia Supreme Court has held it is “essential that certain aspects of a juvenile criminal investigation not become public” to achieve the goal of rehabbing a juvenile who has committed a crime. Ogden Newspapers, Inc. v. City of Williamstown, 192 W. Va. 648, 654, 453 S.E.2d 631, 637 (1994).

“Because of the sensitive nature of crimes involving juveniles and the central role confidentiality plays in a juvenile's rehabilitation, the scale generally tips in favor of confidentiality rather than disclosure of juvenile law enforcement records.” Id. “[West Virginia] recognizes a compelling public policy of protecting the confidentiality of juvenile information in all court proceedings.” State ex rel. Garden State Newspapers, Inc. v. Hoke, 205 W. Va. 611, 619, 520 S.E.2d 186, 194 (1999).

The West Virginia Supreme Court has created a helpful guide on West Virginia Juvenile Law and Procedure that includes a discussion of juvenile proceedings and records. The guide states:

“Although court records are generally open for public inspection, records of juvenile proceedings are not public. Juvenile court records shall not be disclosed to anyone unless the disclosure is otherwise authorized by law.” W. Va. Juv. L. & Proc., W. Va. Judiciary, https://www.courtswv.gov/legal-community/court-rules/rules-of-juvenile-procedure (citing W. Va. Code § 49-5-101; W.Va. Code § 49-5-103; W. Va. Code § 49-5-104; W. Va. R. of Juvenile P. 49).

Juvenile hearings are also closed to the public. W. Va. R. Juv. P. 10, https://www.courtswv.gov/legal-community/court-rules/rules-of-juvenile-procedure#rule10.

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A. Delinquency

Delinquency involves acts that would be criminal under state law or municipal ordinance if an adult committed them. W. Va. Code § 49-1-202. Juvenile jurisdiction for a delinquency offense may continue to age 21. W. Va. Code § 49- 4-701(f)(1). Juvenile records are not public records, and juvenile hearings are not public. W. Va. Code § 49- 4-701(i)(1); W. Va. R. Juv. P. 10(a). Juvenile proceedings can be transferred to adult criminal jurisdiction under W. Va. Code § 49-4-710(f)(1) and W. Va. R. Juv. P. 20. When the transfer to adult status occurs, hearings and records are then public. W. Va. R. Juv. P. 10(a)(9), https://www.courtswv.gov/legal-community/court-rules/rules-of-juvenile-procedure#rule10.

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B. Dependency

West Virginia has juvenile drug courts that divert non-violent juvenile offenders with alcohol or substance abuse behavior to intensive, individualized rehabilitation and treatment. W. Va. Code § 49-4-703. Juvenile drug courts replace or work in coordination with formal juvenile proceedings. Id. These proceedings and records are not public, just like other juvenile records. W. Va. Juv. L. & Proc., W. Va. Judiciary, https://www.courtswv.gov/legal-community/court-rules/rules-of-juvenile-procedure.

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C. Other proceedings involving minors

In a child abuse and neglect case, a court must hold a hearing and determine if the child is abused or neglected to determine whether to further continue the case. Syl. pt. 2, In re Emily G., 224 W. Va. 390, 686 S.E.2d 41 (2009). In W. Va. Dep't of Health & Human Res. v. Clark, 209 W. Va. 102, 106, 543 S.E.2d 659, 663 (2000), the West Virginia Supreme Court held that, “absent probable cause to believe that . . . children were . . . abused and neglected, the [West Virginia Department of Health & Humans Resources] does not have a right to review . . . children's medical and school records. Nonetheless . . . the DHHR does have the right to interview the children.”

Circuit courts have exclusive jurisdiction over child abuse and neglect cases, and the family court must defer to the circuit court ruling. In re J.L., 234 W. Va. 116, 121, 763 S.E.2d 654, 659 (2014). Juvenile hearings are also closed to the public. W. Va. R. Juv. P. 10(a), https://www.courtswv.gov/legal-community/court-rules/rules-of-juvenile-procedure#rule10.

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D. Prohibitions on photographing or identifying juveniles

West Virginia Code § 49-4-701(i)(1), https://code.wvlegislature.gov/49-4-701/ and Rule 10 of the Rules of Juvenile Procedure, https://www.courtswv.gov/legal-community/court-rules/rules-of-juvenile-procedure#rule10 , provide that juvenile hearings are closed to the public. W. Va. Code § 49-4-701(i)(1); W. Va. R. Juv. P. 10.

Rule 8 of the Rules of Practice and Procedure for Family Court, https://www.courtswv.gov/legal-community/court-rules/rules-of-practice-procedure-family-court#rule8 prohibits recording juvenile and family court proceedings and in areas adjacent to the courtroom without the court’s prior approval. The court may approve recordings of ceremonial proceedings. W. Va. R. Prac. & Proc. for Fam. Ct. 8.

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E. Minor testimony in non-juvenile courts

The general rule is that court proceedings are open to the public, but when juveniles are involved, courts are required to keep confidential any recorded interview or any information provided by a juvenile within a court proceeding. These records shall not be opened unless ordered by a court for good cause or for purposes of appeal. W. Va. R. Child Abuse & Neglect Proc. 8(c), http://www.courtswv.gov/legal-community/court-rules/child-abuse/abuse-1-25.html#rule8; W. Va. Trial Ct. R. 18.03(a), http://www.courtswv.gov/legal-community/court-rules/trial-court/chapter-1.html#rule18; State ex rel. Garden State Newspapers, Inc. v. Hoke, 205 W. Va. 611, 619, 520 S.E.2d 186, 194 (1999).

Courts must issue a protective order before allowing access to recorded interviews, transcripts or related documents involving juveniles. W. Va. Trial Ct. R., 18.03 (b). “This state recognizes a compelling public policy of protecting the confidentiality of juvenile information in all court proceedings.” State ex rel. Garden State Newspapers, 205 W. Va. at 619, 520 S.E.2d at 194.

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IX. Special proceedings

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A. Tribal Courts in the jurisdiction

West Virginia does not have tribal courts.

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B. Probate

West Virginia does not have separate probate courts. Objections to the probate of a will can go before the county commission with circuit court review or directly to the circuit court.

The probate process occurs in the county where the decedent lived at the time of death, and probate documents are filed with the county clerk’s office. Members of the public have access to any probate document considered to be a public record, including orders from matters heard by fiduciary commissioners (not recorded but in the estate file) or recorded orders by county commissions if there is an objection to a will or if a fiduciary commissioner is removed. The non-probate inventory is not considered to be a public record. Mechanisms to access documents vary by county.

In 2023, the Legislature reorganized several fiduciary statutes, but these amendments did not change public-access rules. Probate records remain presumptively public unless specifically exempted by statute (e.g., non-probate inventory).

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C. Competency and commitment proceedings

Circuit courts have jurisdiction over guardianship (the person) and conservatorship (the finances) of incapacitated adults. W. Va. Code § 44A-1-1. Mental hygiene commissioners may hold hearings as finders of fact for the circuit court. W. Va. Code § 44A-2-9(a). The circuit judge makes the final decision concerning appointment. Id.

Circuit judges have jurisdiction over involuntary commitment proceedings but may appoint mental hygiene commissioners or magistrates to enter probable cause orders. W. Va. Code § 27-5-1(a). Mental hygiene commissioners also may hold hearings. Id. Circuit judges must enter final commitment orders. W. Va. Code § 27-5-4(l). Special rules apply to minors. See W. Va. Juv. L. & Proc., W. Va. Judiciary, https://www.courtswv.gov/legal-community/court-rules/rules-of-juvenile-procedure#rule8

Records in guardianship and conservatorship proceedings are confidential and are not available to the public. W. Va. Code § 44A-2-5. Although § 44A-2-9(b) does not expressly close hearings to the public, West Virginia courts treat guardianship and conservatorship proceedings as closed because the entire record is confidential under § 44A-2-5.

The chapter of the West Virginia Code that addresses commitment proceedings states that communication and information concerning mental health treatment and evaluation are confidential. W.Va. Code § 27-3-1.

Recent review (2025) shows no new West Virginia appellate decisions altering confidentiality requirements in guardianship, conservatorship, or civil-commitment matters.

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D. Attorney and judicial discipline

The West Virginia Rules of Judicial Disciplinary Procedure provide in Rule 2.4 that the details of complaints filed or investigations conducted by the Office of Disciplinary Counsel are confidential, except that the ODC may confirm or deny the existence of a complaint or investigation, explain procedures, or defend the right of a judge to a fair hearing. W. Va. R. Judicial Disciplinary P. 2.4. Before confirming or denying the existence of a complaint or investigation, the ODC will provide the judge with reasonable notice. Id. Likewise, extraordinary proceedings against a judge brought by the West Virginia Supreme Court Administrative Director under Rule 2.14 also are initially confidential. W. Va. R. Judicial Disciplinary P. 2.14(f). Once formal charges are filed with the West Virginia Supreme Court Clerk’s Office, all documents filed with the clerk and the Judicial Hearing Board will be open to the public. Id., https://www.courtswv.gov/legal-community/court-rules

Likewise, the West Virginia Rules of Lawyer Disciplinary Procedure provide in Rule 2.6 the same provisions for confidentiality at the complaint or investigation stage before the filing of formal charges with the Supreme Court Clerk’s Office. W. Va. R. Lawyer Disciplinary P. 2.6 https://www.courtswv.gov/legal-community/court-rules

2023–2024 amendments reorganized online disciplinary resources but did not change confidentiality standards in Rules 2.4 or 2.6.

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E. Immigration proceedings

Immigration proceedings are federal and not handled by West Virginia state courts. Removal, asylum, bond, and related hearings occur before the Executive Office for Immigration Review (EOIR), https://www.justice.gov/eoir/reference-materials/ic/chapter-4/9. West Virginia has no immigration court; residents are typically assigned to the Pittsburgh Immigration Court or Cleveland Immigration Court. Under 8 C.F.R. § 1003.27, https://www.ecfr.gov/current/title-8/chapter-V/subchapter-A/part-1003/subpart-C/section-1003.27, immigration hearings are generally open to the public, but asylum and most juvenile proceedings are automatically closed unless the applicant requests otherwise. Records of immigration cases are not publicly available except through federal FOIA, and EOIR does not provide online docket access. Filming, recording, or photographing immigration proceedings is prohibited absent written authorization from the immigration judge under EOIR OPPM 20-02, https://www.justice.gov/eoir/eoir-policy-manual/memoranda-pm-list.

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F. Other proceedings

A variety of administrative and quasi-judicial proceedings in West Virginia have distinct public-access rules. Workers’ compensation hearings before the Board of Review are generally open, but medical and identifying information is confidential under Chapter 23 (W. Va. Code § 23-1-1 et seq., https://code.wvlegislature.gov/23/). Public employee grievance hearings are presumptively public unless closure is needed to protect personnel records under W. Va. Code § 6C-2-3(f), https://code.wvlegislature.gov/6C-2-3/. Many administrative agencies, including the Department of Health and Human Resources (DHHR) (https://dhhr.wv.gov) and environmental and licensing boards (e.g., Environmental Quality Board, https://www.wveqb.org; WV Board of Medicine, https://wvbom.wv.gov), hold evidentiary hearings that are typically open unless statutes require confidentiality for matters such as juvenile information, health records, or ongoing investigations. Professional licensing investigations remain confidential until formal charges are filed, at which point disciplinary hearings become public. Civil asset forfeiture proceedings occur in circuit court and are public unless sealed under W. Va. R. Civ. P. 26(c), https://www.courtswv.gov/search?search=civil+procedure, to protect sensitive investigative materials.

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X. Restrictions on participants in litigation

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A. Media standing to challenge third-party gag orders

Media entities have a legally protected interest under the First Amendment to gather news. Branzburg v. Hayes, 408 U.S. 665, 681 (1972). The Fourth Circuit has held that media organizations do have standing to challenge gag orders in actions in which they were not otherwise a party. Doe v. Public Citizen, 749 F.3d 246, 262 (4th Cir. 2014). A media entity must show that they have a legally protected interest that has already been harmed or where harm of that interest is imminent, such as seeking and being denied access to information that they claim a right to inspect. Id. at 263 (citing Lujan v. Defs. of Wildlife, 504 U.S. 555 (1992)). Seeking a writ of mandamus is the preferred method of challenging a gag order. In re State-Record Co., Inc., 917 F.2d 124, 126 (4th Cir. 1990). No subsequent Fourth Circuit or U.S. Supreme Court decisions have altered or limited media standing to challenge gag orders.

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B. Gag orders on the press

Gag orders on the press are a prior restraint on the press and, as such, are presumptively invalid and subject to strict scrutiny. State ex rel. Daily Mail Publ’g Co. v. Smith, 161 W. Va. 684, 690, 248 S.E.2d 269, 272 (1978), aff'd, 443 U.S. 97, 99 S. Ct. 2667 (1979).

The Supreme Court has held that “prior restraints on speech and publication are the most serious and the least tolerable infringement on First Amendment rights” and are presumed to be unconstitutional. Neb. Press Ass’n v. Stuart, 427 U.S. 539, 559 (1976).

Regarding pre-trial publicity, a restrictive order that limits the press will only be upheld when there is intense and pervasive publicity about the case, there are no other alternatives to mitigate the effects of the pretrial publicity, and the restrictive order will, in fact, effectively prevent prejudicial publicity from reaching jurors. Id. at 562-63.

These standards remain controlling; no West Virginia or Fourth Circuit case has created a lower standard for prior restraints on the press.

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C. Gag orders on participants

The law regarding restrictive orders aimed at trial participants is less clear than that of orders aimed at the press. Generally, the consensus had been that courts have much broader power to limit what trial participants can say about a case outside of court. Recently, however, the Fourth Circuit has held that gag orders on trial participants are presumptively invalid. In re Murphy-Brown, LLC, 907 F.3d 788 (4th Cir. 2018). In a unanimous opinion, the court held that gag orders against trial participants are only valid when (i) there is a reasonable likelihood that a party would be denied a fair trial without the gag order, and the order actually operates to prevent the threatened danger; (ii) the order is the least restrictive means to protect that interest; and (iii) the order is narrowly tailored to serve its intended purpose. Id. Gag orders cannot be vague in outlining what is prohibited or to whom they apply.

Murphy-Brown remains binding Fourth Circuit precedent, and no later decision has modified the three-part standard or reduced the scrutiny applied to participant gag orders.

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D. Interviewing judges

West Virginia’s Code of Judicial Conduct outlines ethical rules for judicial statements on pending and impending cases. Canon 2.10(A) prohibits a judge from making “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.” W. Va. Code of Jud. Conduct Canon 2.10(A). In addition, under Canon 2.8(C), “[a] judge shall not commend or criticize jurors for their verdict but may express appreciation to jurors for their service to the judicial system and the community.” W. Va. Code of Jud. Conduct Canon 2.8(C).

No amendments to the West Virginia Code of Judicial Conduct have altered these provisions.

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XI. Other issues

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A. Interests often cited in opposing a presumption of access

The West Virginia Freedom of Information Act provides categories of information specifically exempt from disclosure. W. Va. Code § 29B-1-4, http://code.wvlegislature.gov/29B-1-4/. The FOIA exemptions are instructive on the types of records that may be sealed during court proceedings. Id. Recent amendments to § 29B-1-4 (2023–2024) did not alter the categories of exempt records relevant to court-sealing analysis.

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B. Cameras and other technology in the courtroom

Under West Virginia Trial Court Rule 8, courts have the discretion to approve or deny a media request to allow cameras or audio equipment in or around the courtroom. W. Va. Trial Ct. R. 8.01. The media must request access at least one day in advance of the hearing. W. Va. Trial Ct. R. 8.02. A party, witness, or counsel may object, and the presiding judicial officer will rule on the objection. Id.

Camera coverage is limited to public proceedings. W. Va. Trial Ct. R. 8.04. To protect attorney-client privilege, the media shall not broadcast any conferences occurring between or among attorneys and their clients, or between attorneys, their clients and the presiding officer. Id. Without the presiding officer’s prior approval, no one can identify or show jurors. W. Va. Trial Ct. R. 8.10. A juror is not prohibited from voluntarily disclosing his or her identity after the juror’s term of service. Id.

Rule 8, https://www.courtswv.gov/legal-community/court-rules/wv-trial-court-rules-contents#rule8 outlines detailed requirements for equipment, personnel, and location of equipment. W. Va. Trial Ct. R. 8.06–8.07. Where there is a request from more than one video photographer or more than one still photographer, the media must work out a pooling arrangement. W. Va. Trial Ct. R. 8.08. None of the film, videotape, photograph or audiotape developed during any proceeding is admissible as evidence. W. Va. Trial Ct. R. 8.09.

Rule 42 of the Rules of Appellate Court Procedure, https://www.courtswv.gov/legal-community/court-rules/rules-appellate-procedure#rule42 governs media access for appellate court proceedings. W. Va. R. App. P. 42. This rule is similar to the trial court rule, but there are a few noteworthy distinctions.

The media must notify the public information officer (“PIO”) for the West Virginia Supreme Court of Appeals as far in advance as possible to request coverage. W. Va. R. App. P. 42(b). If the PIO is not available, they must notify the clerk. Id.

The media must use only the court’s live audio feed, and there is a designated area for reporters who want to take notes using laptop computers. W. Va. R. App. P. 42(f)–(g). Media interviews are prohibited inside the courtroom but may occur in the hallway designated outside the courtroom or by the PIO. W. Va. R. App. P. 42(h).

As in the trial court rule, the media must work out pooling arrangements unless a case has attracted nationwide interest. W. Va. R. App. P. 42(i). In those instances, the PIO and the clerk will oversee pooling arrangements. Id.

The Supreme Court of Appeals webcasts all arguments live on its website. W. Va. R. App. P. 42(j). The media may not rebroadcast the website in any manner without the court’s permission. Id. The Court has not amended Rule 42 since adoption of livestreaming; all provisions remain accurate as of 2025.

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C. Tips for covering courts in the jurisdiction

The West Virginia court system has four levels. Lower Courts, W. Va. Judiciary, https://www.courtswv.gov/lower-courts. Magistrate courts are on the bottom, or first level, and hear primarily small claims and preliminary criminal matters. Magistrate Courts – Trial Courts of Limited Jurisdiction, W. Va. Judiciary,https://www.courtswv.gov/lower-courts/magistrate-courts . Family courts are on the next level. Family Courts, W. Va. Judiciary,https://www.courtswv.gov/lower-courts/family-courts . Circuit courts are trial courts that have jurisdiction over most criminal and civil actions and hear appeals from magistrate and family courts, and from administrative agencies. Circuit Courts, W. Va. Judiciary, https://www.courtswv.gov/lower-courts/circuit-courts . The Supreme Court of Appeals is the court of last resort in West Virginia. Supreme Court of Appeals, W. Va. Judiciary, https://www.courtswv.gov/appellate-courts/supreme-court-of-appeals/about-the-court . The Supreme Court of Appeals provides a full review and a decision on the merits in all properly prepared and filed appeals. Id.

The website www.courtswv.gov contains helpful information on all West Virginia courts. Of particular interest to the media is the page https://www.courtswv.gov/public-resources/news-publications/press-page that includes media contact information, court information by county, press releases, publications and other helpful information. News & Publications, W. Va. Judiciary,https://www.courtswv.gov/public-resources/news-publications/press-releases . The Supreme Court of Appeals has a PIO office, but the lower courts do not. On the local level, contacting the presiding judicial officer’s office is typically a good first step in covering court cases. In recent years, the West Virginia Judiciary has also expanded remote public access to certain non-confidential magistrate and circuit court records through statewide systems such as WVPASS, https://wvpass.courtswva.com, and the Magistrate Court Case Record Search portal, https://mcrsearch.courtswv.gov/Inquiry/CaptchaEntry?ReturnUrl=%2f, providing practical tools for journalists and the public to monitor filings and case activity.

If there is significant media interest in a particular case, it may be helpful to:

Develop a media plan that will establish reasonable and adequate guidelines for newsgathering and dissemination;
Cooperate with other media organizations in distributing information and seek assistance from the court PIO or local court staff;
Lessen the burden on overworked court staff as much as possible by cooperating on pooling arrangements and list-serves;
Be flexible about seating arrangements, including helping to arrange for an annex or overflow room if there are not enough seats in the courtroom;
Respectfully but firmly assert the media’s right of access to proceedings and documents as necessary.

More specific guidance can be found in Rochelle L. Wilcox, When the Media Come to Town: Protocols and Practices 143 (MLRC Bulletin, Jan. 2005). In addition, in January 2011, the MLRC Newsgathering Committee, Defense Counsel Section, published a Model Media Decorum Order for High Profile Cases & Supporting Memorandum, https://medialaw.org/model-briefs-and-practice-guides/.

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Author

Open Courts Compendium

I. Introduction: Access rights in the jurisdiction

A. The roots of access rights

B. Overcoming a presumption of openness

C. Procedural prerequisites to closure

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

A. Media standing to challenge closure

B. Procedure for requesting access in criminal cases

C. Procedure for requesting access in civil matters

D. Obtaining review of initial court decisions

III. Access to criminal proceedings

A. In general

B. Pretrial proceedings

C. Criminal trials

D. Post-trial proceedings

E. Appellate proceedings

IV. Access to criminal court records

A. In general

B. Arrest records

C. Dockets

D. Warrants, wiretaps and related materials

E. Discovery materials

F. Pretrial motions and records

G. Trial records

H. Post-trial records

I. Appellate records

J. Other criminal court records issues

V. Access to civil proceedings

A. In general

B. Pre-trial proceedings

C. Trials

D. Post-trial proceedings

E. Appellate proceedings

VI. Access to civil records

A. In general

B. Dockets

C. Discovery materials

D. Pre-trial motions and records

E. Trial records

F. Settlement records

G. Post-trial records

H. Appellate records

I. Other civil court records issues

VII. Jury and grand jury access

A. Access to voir dire

B. Juror identities, questionnaires and other records

C. Grand jury proceedings and records

D. Interviewing jurors

VIII. Proceedings involving minors

A. Delinquency

B. Dependency

C. Other proceedings involving minors

D. Prohibitions on photographing or identifying juveniles

E. Minor testimony in non-juvenile courts

IX. Special proceedings

A. Tribal Courts in the jurisdiction

B. Probate

C. Competency and commitment proceedings

D. Attorney and judicial discipline

E. Immigration proceedings

F. Other proceedings

X. Restrictions on participants in litigation

A. Media standing to challenge third-party gag orders

B. Gag orders on the press

C. Gag orders on participants

D. Interviewing judges

XI. Other issues

A. Interests often cited in opposing a presumption of access

B. Cameras and other technology in the courtroom

C. Tips for covering courts in the jurisdiction