Unlike access to records of the executive and legislative branches, which has traditionally been governed primarily by statutes such as the Public Records Act, cases interpreting the PRA, and common law, there is a constitutional right of access to judicial records. This First Amendment right of access to judicial proceedings and records has become firmly established over the past several decades. See, e.g., Richmond Newspapers, Inc. v. Commonwealth of Virginia, 448 U.S. 555 (1980) (order excluding press and public from criminal trial violates First Amendment); Press-Enterprise v. Superior Ct., 464 U.S. 501 (1984) (“Press-Enterprise I”) (order sealing transcript of voir dire proceedings in death case violates First Amendment right of access); Press-Enterprise Co. v. Superior Court of Cal. for Riverside County, 478 U.S. 1, 106 S. Ct. 2735 (1986) (“Press-Enterprise II”) (access right extends to preliminary proceedings); Kamakana v. Honolulu, 447 F.3d 1172, 1182 (9th Cir. 2006) (affirming trial court ruling ordering the release of documents sealed under a protective order that were attached to dispositive motions, in a suit brought by a police detective against the city alleging retaliation for his whistleblower activities); Center for Auto Safety v. Chrysler Grp., LLC, 809 F.3d 1092, 1102 (9th Cir. 2016) (presumptive First Amendment right of access to sealed documents, rejecting binary dispositive/non-dispositive distinction in favor of a broader rule that requires release of sealed documents that are simply “more than tangentially related” to the merits of the case, unless compelling reasons require secrecy). There are no cases expressly involving a right of access to judicial records under the Alaska Constitution, which could be interpreted to provide greater constitutional protection, but not to limit the protections afforded by the First Amendment of the US Constitution.
Apart from the constitutional and common law rights of access, access to both case-specific judicial documents and administrative records of the court system is primarily governed by Administrative Rules 37.5 through 37.8 of the Alaska Rules of Court, which state that they are “adopted pursuant to the inherent authority of the Alaska Supreme Court.” Case law from other jurisdictions suggests there is also a constitutional and a common law right of access to judicial records, but the issue has not been expressly addressed by the Alaska appellate courts. (In Renkel v. State, 807 P.2d 1087 (Alaska App. 1991), the Court of Appeals held that an Alaska statute mandating closure of courtrooms to the public in sexual assault cases involving minor victims was unconstitutional, and that, absent particularized findings supporting closure, closure of a court to the general public during testimony of minor victims was reversible error.) It is possible that the application of the general public records statute to the court system might be limited by the separation of powers doctrine. In one 1988 superior court case involving access to search warrant records, the issue was raised, but not resolved. See, State v. Sackett, 1JU -587-1036 Cr. (Alaska Super. Ct. 1st Jud. Dist.), and as noted in connection with the open meetings law, a 1994 revision to the OMA expressly excludes the court system and legislative branch from the scope of that Act. However, the Public Records Act contains no such exclusion, and instead has several sections that assume it encompasses access to legislative and judicial records.
Administrative Rule 37.5, which previously governed access to judicial records, was substantially revised, effective October 2006. Although the new rules apply to all court records, court personnel were not required to redact or restrict information that otherwise was public in case records and administrative records created before October 15, 2006. Adm.R.37.5(a)(2).
According to Rule 37.5, the purposes of these rules is to provide access to court records in a manner that maximizes accessibility to court records; supports the role of the judiciary; promotes government accountability; contributes to public safety; minimizes risk of injury to individuals; protects individual privacy rights and interests; protects proprietary business information; minimizes reluctance to use the courts to resolve disputes; makes most effective use of court personnel; provides excellent customer service; and does not unduly burden the ongoing business of the judiciary. Adm.R.37.5(a)(1).
- General Access to Court Records. Court records are accessible to the public, except as provided in Admin.R. 37.5(e). The rules provide that all members of the public will have the same access to court records under the rules, with a couple not-generally-applicable exceptions. No distinction is made between the press and other “members of the public.” Adm.R. 37.5(b). Court records that are accessible to the public shall be open to inspection at all times during the regular office hours of the courts. The administrative director of the court system is responsible for establishing written guidelines to insure reasonable access and opportunity to inspect public court records and to insure their preservation and safekeeping. Adm.R. 37.5(d)(1), (f). The general right of access applies to all court records, regardless of the manner of creation, method of collection, form of storage, or the form in which the record is maintained. Adm.R. 37.5(d)(2). If a court record, or portion thereof, is excluded from public access, there must be a publicly accessible indication of the fact of exclusion but not the content of the exclusion except for records that are confidential (as opposed to sealed), according to Adm.R. 37.5(d)(3). However, Administrative Rule 40 requires the clerk of court to list a case on the public case index even though the case file has been sealed or made confidential under this rule—unless it comes within one of the specified exceptions noted below—and the public index must be made available to the public in electronic form except as limited by Administrative Rule 37.8. Only the presiding judge of the judicial district has the power to remove a party’s name from the public case index, and this action may be taken only in very limited circumstances, and as specified in the administrative rules. Adm.R. 40(b) and (c).
The presiding judge of a judicial district may direct the clerk of the court to substitute “Not Published” for a party's true name on the public index if the presiding judge finds that the issues in the case involve matters of a sensitive and highly personal nature, that publication of the name could expose a person to harassment, injury, ridicule, or personal embarrassment, and that protection of the party's name outweighs the public's interest in disclosure and any prejudice to the opposing party. If the presiding judge determines that the true name of more than one party in a case should be protected under this subsection, the parties shall be distinguished by number (“Not Published 1, Not Published 2”). Administrative Rule 40(b). The presiding judge of a judicial district may direct the clerk of court to remove a party's name from the public index for a period of five years if the presiding judge finds that publication of the name is likely to result in substantial physical harm to the party or members of the party's household and protection of the party's name outweighs the public's interest in disclosure. After five years, the party's name will appear on the public index unless the presiding judge orders the name protected for an additional period of time, upon another showing that publication of the name is likely to result in substantial physical harm to the party or members of the party's household. Administrative Rule 40(c). Unless otherwise ordered, while a request under subsection 40(b) or (c) is pending, (1) the party's name will not be added to the public index if the request is made with or in the filing that initiates the case; and (2) the party's name will remain on the public index if the request is made in an existing case. Administrative Rule 40(d).
There are eleven enumerated exceptions in Admin.R. 40(a), pursuant to which a case might be excluded from the public index, including party names protected under Rule 40(b) and (c) rulings as discussed in the preceding paragraph, and criminal and minor offense cases dismissed because the prosecuting authority declined to file a charging document or for lack of probable cause, or due to identity errors, or because the named defendant was a minor wrongly charged in adult court with an offense within the jurisdiction for delinquency proceedings. They also include cases designated as confidential or sealed by statute or court rule, unless the index to those cases is public under court rules, and domestic violence, stalking or sexual assault protective order cases dismissed at or before a hearing on an ex parte petition because there is not sufficient evidence the petitioner is a victim or otherwise meets the requirements as defined by the relevant statute, and certain foreign domestic violence protective orders.
The court system must keep an Estate Index comprising all estate cases indexed alphabetically under the name of the person to whose estate the case relates, a Will Index comprising a list of all wills on deposit indexed alphabetically under the name of the person to whose will is deposited, a Protective Proceeding Index, an alphabetical index of all protective order proceedings kept under the names of the respondents, and a Registered Trust Index, an alphabetical list of all registered trusts will be kept under the name of the trust. All of these indices are public records even though the files may be confidential. Alaska Probate Rule 3(a), (b), (c), (e), (g). In addition, the court system must keep a Mental Commitment Index and a Judicial Bypass Proceeding Index, which are each confidential. Probate R. 3(d), (f), (g).
- Definitions. Adm.R.37.5(c) sets out definitions for purposes of the rules governing access to court documents:
(1) “Court record” means both case records and administrative records, but does not include records that may be in the court’s possession that do not relate to the conduct of the court’s business.
(2) “Case record” means any document, information, data, or other item created, collected, received, or maintained by the court system in connection with a particular case.
(3) “Administrative record” means any document, information, data, or other item created, collected, received, or maintained by the court system pertaining to the administration of the judicial branch of government and not associated with any particular case.
The rules distinguish between “sealed” records, meaning “access to the record is restricted to the judge and persons authorized by written order of the court,” Adm.R.37.5(c)(5), and “confidential” records, meaning access to the record is restricted to the parties to the case, counsel of record, individuals with a written order from the court authorizing access, and court personnel for case processing purposes only. Adm.R.37.5(c)(4).
“In electronic form” means any information in a court record in a form that is readable through an electronic device, Adm.R.37.5(c)(7), and “remote access” means the ability of a person to inspect and copy information in a court record in electronic form through an electronic means. Adm.R.37.5(c)(6).
- Court Records Excluded from Public Access. As provided in Adm.R.37.5(e):
(1) Case Records. The following case records and case-related documents are not accessible to the public:
(A) memoranda, notes, or preliminary drafts prepared by or under the direction of any judicial officer of the Alaska Court System that relate to the adjudication, resolution, or disposition of any past, present, or future case, controversy, or legal issue;
(B) legal research and analysis prepared or circulated by judges or law clerks regardless of whether it relates to a particular case and written discussions relating to procedural, administrative, or legal issues that are or may be before the court; and
(C) documents, information, data, or other items sealed or confidential pursuant to statute, court rule, case law, or court order.
(2) Administrative Records. The following administrative records are not accessible to the public:
(A) personal information, performance evaluations, and disciplinary matters relating to any past or present employee of the Alaska Court System or any other person who has applied for employment with the Alaska Court System, and personnel records that are confidential under Alaska Court System Personnel Rules C1.07 and PX1.08;
(B) the work product of any attorney or law clerk employed by or representing the Alaska Court System if the work product is produced in the regular course of business or representation of the Alaska Court System;
(C) individual direct work access telephone numbers and email addresses of judges and law clerks;
(D) documents or information that could compromise the safety of judges, court staff, jurors, or the public, or jeopardize the integrity of the court’s facilities or the court’s information technology or recordkeeping systems;
(E) records or information collected and notes, drafts, and work product generated during the process of developing policy relating to the court’s administration of justice and its operations;
(F) email messages that are created primarily for the informal communication of information and that do not set policy, establish guidelines or procedures, memorialize transactions, or establish receipts; and
(G) records that are confidential, privileged, or otherwise protected by law, rule, or order from disclosure.
- Prohibiting Access to Public Case Records. Adm.R. 37.6 provides for limiting access to otherwise public records in case files as follows.
Limiting Access. Notwithstanding any other rule to the contrary, the court may, by order, limit access to public information in an individual case record by sealing or making confidential the case file, individual documents in the case file, log notes, the audio recording of proceedings in the case, the transcript of proceedings, or portions thereof. A request to limit access may be made by any person affected by the release of the information or on the court’s own motion. Adm.R. 37.6(a).
Standard. The court may limit public access as described above if the court finds that the public interest in disclosure is outweighed by a legitimate interest in confidentiality, including but not limited to (1) risk of injury to individuals, (2) individual privacy rights and interests, (3) proprietary business information, (4) the deliberative process, or (5) public safety. Adm.R. 37.6(b).
Least Restrictive Alternative. In limiting public access the court must use the least restrictive means that will achieve the purposes of these public access rules and the reasonable needs as set out as the basis for the request, without unduly burdening the court. Adm.R. 37.6(c).
Procedure. Any request to limit access must be made in writing to the court and served on all parties to the case unless otherwise ordered. A request to limit access, the response to such a request, and the order ruling on such a request must be written in a manner that does not disclose non-public information, are public records, and shall not themselves be sealed or made confidential. Adm.R. 37.6(d).
In Benjamin S. v. Stephenie S., 2018 WL 794523 (Unpublished Op., Alaska, February 7, 2018) the Supreme Court upheld the trial court’s refusal, in a child custody proceeding following a divorce, to “expunge” from the record allegations of domestic violence against the husband. (This unpublished opinion replaces an earlier, 2017, Supreme Court opinion that the Court issued in November 2017, and then withdrew it, changing only an unrelated paragraph.) Though Benjamin’s objections were based more broadly on Admin.R. 37.5 through 37.8 and 40 in the trial court, on appeal he relied on Admin.R.37.6, which provides for courts to “limit access to public information in an individual case record.” The Supreme Court observed, “Parties are entitled and expected to be adverse in litigation, and litigants do not have a right to have claims or statements with which they disagree removed from the record. The superior court rightly explained to Benjamin that Administrative Rule 37.6(b) was not intended to ‘assuage the emotional distress that a domestic relations litigant in a high conflict case might experience.’ It also noted Benjamin's failure to specify how he would be harmed or even what specific allegations would cause such harm. ‘In determining whether to limit access to a case file under Alaska Administrative Rule 37.6, trial courts must weigh the public interest in disclosure against any legitimate interest in confidentiality.’” Id. at 7-8. The Court held that the trial court had not abused its discretion in deciding that Benjamin had not made a sufficient showing to justify removing anything from the record.
Compare Timothy W. v. Julia M., 403 P.3d 1095, 1103-04 (Alaska 2017), in which the Alaska Supreme Court upheld a challenge by a litigant to the trial judge’s refusal to close certain postdissolution proceedings to modify child visitation provisions. The father, an attorney, appealed the judge’s ruling under Admin.R.37.6(b), claiming “the trial judge's comments ... would damage his ability to practice law in this community, and impact his ability to earn a living.” The trial judge had initially limited public access to the record in the case, but found that this had “been a license for bad behavior by both [parties].” The trial judge considered arguments for and against closure. The court emphasized that its foremost concern was whether the children would be hurt by making the record public, and it noted that neither party had been able to explain how that might occur. It observed that “mudslinging happens all the time in custody disputes” and that if it closed the record every time it heard arguments along those lines then courts “wouldn't have any open proceedings.” The Supreme Court found that trial court considered the mandated factors and did not consider any improper factors, and held that the trial court did not abuse its discretion by electing not to close the hearings in question.
In an unpublished opinion in Zachary v. Coon, 1998 WL 34347957 (February 25, 1998), the Alaska Supreme Court addressed questions about sealing portions of the record to protect a juvenile in a civil lawsuit seeking damages for sexual abuse in which the minor was not a party. The Supreme Court found that a balancing test was sufficient to protect the interests of the minor, without stretching statutory exceptions to fit the facts of the case. The Court reviewed various statutes and rules that the parties argued embodied a public policy in favor of sealing records where a minor's interest in non-disclosure is at risk. However, the Court noted that this case— a suit between adults for acts that did not directly involve the minor—did not concern the same kind of issues as those the cited statutes address.
- Obtaining Access to Non-Public Court Records. Adm.R. 37.7 provides for obtaining access to otherwise non-public information in court records as follows:
Allowing Access to Non-Public Records. The court may, by order, allow access to non-public information in a case or administrative record if the court finds that the requester’s interest in disclosure outweighs the potential harm to the person or interests being protected, including but not limited to: (1) risk of injury to individuals, (2) individual privacy rights and interests, (3) proprietary business information, (4) the deliberative process, or (5) public safety. Non-public information includes information designated as confidential or sealed by statute or court rule and public information to which access has been limited by court order in a particular case. Adm.R.37.7(a).
Procedure. Any request by any person to allow access must be made in writing to the court and served on all parties to the case unless otherwise ordered. The court shall also require service on other individuals or entities that could be affected by disclosure of the information. A request to allow access, the response to such a request, and the order ruling on such a request must be written in a manner that does not disclose non-public information, are public records, and shall not themselves be sealed or made confidential. Adm.R.37.7(b).
- Electronic Case Information. The following case-related information maintained in the court system’s electronic case management systems will not be published on the court system’s website or otherwise made available to the public in electronic form: (1) addresses, phone numbers, and other contact information for parties and witnesses; (2) names, addresses, phone numbers, and other contact information for victims in criminal cases; (3) social security numbers; (4) driver and vehicle license numbers; (5) account numbers of specific assets, liabilities, accounts, credit cards, and PINs (Personal Identification Numbers); (6) names of minor children in domestic relations cases, including paternity actions, domestic violence cases, emancipation cases, and minor settlements under Civil Rule 90.3; (7) juror information; (8) party names protected under Administrative Rule 40(b) and (c); and (9) information that is confidential or sealed in its written form. Adm.R.37.8(a), and (10) attorney and other e-mail addresses used by the court to distribute court orders, notices, judgments, and other documents.
- Bulk Distribution of Electronic Case Information and Distribution of Compiled Information. Bulk distribution—defined as the distribution of all or a significant subset of the case information in the court system’s electronic case management systems, as is, and without modification or compilation—of case information is permitted, unless the information is not publicly available in electronic form under Adm.R.37.8(a), and of imaged case records is not allowed, unless the records are already remotely accessible to the public on the court system’s website. Adm.R. 37.8(b). The administrative director of the court system may allow bulk distribution of case information that not publicly available and of publicly available imaged case records for scholarly or governmental purposes, pursuant to procedures to protect the security of information and records so released. Adm.R.37.7(b)(4).
Compiled information, defined as information that is derived from the selection, aggregation, or reformulation of case information in the court system’s electronic case management systems, may be made available unless the compiled information is privileged or reveals information that is confidential, sealed, or not available to the public under Adm.R.37.8(a). Access to other compiled information may be approved by the administrative director if resources are available to compile the information and if it is an appropriate use of public resources, such as for scholarly, governmental, or any other purpose in the public interest. Adm.R.37.8(c).
Records of a “public official or employee” and a “governmental agency” are covered by the FOIA. Ark. Code. Ann. § 25-19-103(5)(A). While this definition reaches judges and the courts, application of the FOIA to the judicial branch would violate the separation of powers doctrine. Arkansas Newspaper Inc. v. Patterson, 281 Ark. 213, 662 S.W.2d 826 (1984); Ark. Op. Att’y Gen. No. 90-217. But see Ark. Op. Att’y Gen. No. 95-031. Although the public has a common-law right of access to judicial records, the courts have inherent authority to seal them in narrow circumstances, and statutes or court rules may also authorize closure. See Arkansas Best Corp. v. General Electric Capital Corp., 317 Ark. 238, 878 S.W.2d 708 (1994); Arkansas Dep’t of Human Services v. Hardy, 316 Ark. 119, 871 S.W.2d 352 (1994).
With one exception, the CPRA does not apply to the judicial branch of government, which like the legislative branch is specifically excluded from the definition of "state agency" under the CPRA. Cal. Gov't Code § 6252(a). As of 2016, the definition of “state agency” under the CPRA includes the State Bar of California, a judicial branch entity. Id., § 6252(f)(2).
Unlike the CPRA, with the exception of the State Bar, the Constitutional Sunshine Amendment, does apply to the judicial branch of government, which includes the courts, the Administrative Office of the Courts and the Judicial Council. The Amendment applies to the "meetings of public bodies" and the "writings of public officials and agencies . . . ." without excluding the Judiciary. Cal. Const. Art. I, § 3(b)(1); see Sander v. State Bar of Cal., 58 Cal. 4th 300, 309, 165 Cal. Rptr. 3d 250, 314 P.3d 488 (2013) (recognizing application of Sunshine Amendment to judicial branch entities, including the State Bar of California). The Amendment, however, specifically maintains "constitutional or statutory exceptions to the right of access to public records" in effect on the effective date of the Amendment. Id. § 3(b)(5).
In addition to the Sunshine Amendment, Rules of Court, effective Jan. 2010, set forth comprehensive public access provisions applicable to judicial administrative records maintained by state trial and appellate courts, the Judicial Council, and the Administrative Office of the Courts. Cal. Rules of Court 10.500 et. seq. These rules were modeled after the CPRA.
Moreover, both the federal and state constitutions provide broad access rights to judicial proceedings and records. See, e.g., NBC Subsidiary (KNBC-TV), Inc. v. Superior Court, 20 Cal. 4th 1178, 86 Cal.Rptr.2d 778, 980 P.2d 337, (1999) (where California Supreme Court reviewed at length constitutional right of access in both criminal and civil proceedings and held right applied to trial proceedings in civil action); see also Copley Press v. Superior Court, 63 Cal. App. 4th 367, 373, 74 Cal. Rptr. 2d 69, (1998) (recognizing constitutional right of access to school district's settlement with minor when court approval required and holding no compelling reason justified sealing settlement records); Copley Press Inc. v. Superior Court, 6 Cal. App. 4th 106, 115, 7 Cal. Rptr. 2d 841 (1992) (recognizing broad First Amendment right of access to judicial records in both civil and criminal proceedings and holding right attached to rough minute books of trial court).
A separate common law right of access also attaches to judicial branch records, including non-adjudicatory, administrative records, where there is a legitimate public interest in access that is not outweighed by other interests. See Sanders, 58 Cal. 4th at 323 (state bar admissions data); see also, Estate of Hearst, 67 Cal. App. 3d 777, 782, 136 Cal. Rptr. 821 (1977) (probate files of probate court open).
Not all court records are covered by the Act. See Office of State Court Administrator v. Background Info. Sys., 994 P.2d 420 (Colo. 1999). Absent statutory mandate dealing with particular court records, courts themselves retain authority over the dissemination of court records. Id. at 432. Examples of documents that must be made public under the Act include court registry of actions, judgment records, and records of official actions in criminal cases. Id. at 429. Criminal case files are subject to disclosure under the Criminal Justice Records Act. Id. See also Chief Justice Directive 2001-05-01. Non-case records of the judicial branch are not "public records" subject to CORA. Gleason v. Judicial Watch, 292 P.3d 1044 (Colo. App. 2012).
The judiciary is subject to FOIA, but only with respect to its "administrative functions." Conn. Gen. Stat. §1-200(1)(A). See also Clerk of the Superior Court v. FOIC, 278 Conn. 28, 37, 895 A.2d 743 (2006) (docket sheets are not administrative records subject to FOIA); Rules Comm. of the Superior Court v. FOIC, 192 Conn. 234, 472 A.2d 9 (1984) (holding that the Rules Committee does not perform an "administrative function"); Conn. Bar Examining Comm. v. FOIC, 209 Conn. 204, 550 A.2d 663 (1988) (holding that some functions of the Bar Examining Committee are "administrative" and remanding to the trial court to determine which these are); Fromer v. FOIC, 43 Conn. Supp. 246 (1993), aff'd, 36 Conn. App. 155, 649 A.2d 540 (1994) (holding that court monitor's official tape recording of trial was adjudicative record of judicial proceedings by official performing nonadministrative function, and hence not covered by FOIA); Clerk v. FOIC, No. CV 03-0518871S, 2003 WL 22853742, at *3 (Conn. Super. Nov. 14, 2003) (holding that FOIA did not require a court to allow an attorney to inspect its records of cases pending, since the judicial branch must have an opportunity to determine whether the records are judicial or administrative before allowing them to be viewed).
The Act defines "public body" to include most executive and legislative agencies or entities established by an Act of the General Assembly. 29 Del. C. § 10002(c). Courts are probably not covered under the "records" section of the Act because most courts are a creation of the Constitution and not the General Assembly. See Del. Op. Att'y Gen., No. 95-ib01 (Jan. 18, 1995). However, Family Court, Justice of the Peace Court and the Administrative Office of the Courts are created by the legislature and may be subject to the Act. The Delaware Constitution guarantees that "[a]ll Courts shall be open." Del. Const. of 1897, art. I, § 9. "The press shall be free to every citizen who undertakes to examine the official conduct of men acting in a public capacity . . . ." Del. Const. of 1897, art. I, § 5. Issues relating to access to court records at common law and under the state and federal constitutions are beyond the scope of this outline.
Records of judicial proceedings are generally not considered subject to the Act but are otherwise available to the public. Fathers Are Parents Too Inc. v. Hunstein, 202 Ga. App. 716, 415 S.E.2d 322 (1992) (Act does not apply to the judicial branch of government); see also Atlanta Journal and Constitution v. Long, 258 Ga. 410, 369 S.E.2d 755 (1988) (civil case) (there is a "presumption that the public will have access to all court records," which may be overridden only "in cases of clear necessity"); R.W. Page Corp. v. Lumpkin, 249 Ga. 576, 292 S.E.2d 815 (1982) (criminal case). However, the Act provides a specific procedure for access to trial exhibits, conditioning inspection of such exhibits on approval of the judge assigned to the case. In the event such inspection is not approved, a photograph, photocopy or other reproduction must be provided. O.C.G.A. § 50-18-72(c).
Section 92F-3 defining "agency" expressly excludes the "non-administrative functions of the courts," thereby shielding the judiciary from overly broad requests to disclose its deliberative processes. However, disclosure is mandatory for "[f]inal opinions . . . as well as orders made in the adjudication of cases, except to the extent protected by section 92F-13(1)[.]" Haw. Rev. Stat. § 92F-12(a)(2). Furthermore, rules of procedure, statutes, and constitutional standards all require the creation of public records in adjudicatory proceedings, which must be disclosed under the UIPA provisions mandating access required by other laws. Id. § 92F-12(a), (b)(2). The UIPA's legislative history explains that the intent of the language excluding the judiciary's non-administrative functions from the definition of "agency" was to preserve the established practice of granting broad access to records of court proceedings. Conf. Comm. Rep. No. 235, 14th Leg., Reg. Sess. (1988), reprinted in 1988 Haw. Sen. J. 689, 690. Prior to the passage of the UIPA, the judiciary relied on provisions in the Privacy Act, Chapter 92E, which summarily excluded the judiciary from the definition of "agency," to argue that it was not subject to the open records provisions of the Sunshine Law. The UIPA more clearly defines which records of the Judiciary are accessible.
The judiciary is included within the Idaho Public Records Act. The statute specifically covers “every state officer, department, division, bureau, commission and board or any committee of a state agency including those in the…judicial branch.” Idaho Code § 74-101(15). However, certain records contained in court files of judicial proceedings may be exempt from disclosure. Idaho Code § 74-104. The Act delegates to the Idaho Supreme Court the task of specifying by rule those judicial proceeding records that are exempt from public inspection (except where such information is necessary for a background check on an individual that is required by federal law regulating the sale of firearms, guns or ammunition). Idaho Code § 74-104(2). See Rule 32 of the Idaho Court Administrative Rules (ICAR) for specific exemptions identified by the judicial branch.
Court records are open under the First Amendment, the common law and Illinois’ Clerk’s of Courts Act. Press-Enterprises Co. v. Superior Court of California for the County of Riverside, 478 U.S. 1 (1986); Skolnick v. Altheimer & Gray, 191 Ill.2d 214, 230-233, 730 N.E.2d 4, 15-17 (2000); 705 ILCS 105/16. But a court may deny access where there are conflicting interests between the public right of access and other fundamental rights—such as a defendant's constitutional right to a fair trial. See In re CBS Inc., 540 F. Supp. 769 (N.D. Ill. 1982).
The Illinois FOIA does not specifically address court records, except to state that the following documents maintained by a public body pertaining to criminal history record information are open: (i) court records that are public; (ii) records that are otherwise available under State or local law; and (iii) records in which the requesting party is the individual identified, unless disclosure would physically endanger law enforcement personnel or other persons. 5 ILCS 140/2.15(b).
However, Illinois’ appellate courts have held that the entire judicial branch, including a circuit clerk and a pretrial services agency that was an arm of the court and directly accountable to the chief judge of the judicial circuit, is not subject to the disclosure requirements of the Act. See Newman, Raiz and Shelmadine, LLC v. Brown, 394 Ill.App.3d 602, 915 N.E.2d 782, 333 Ill.Dec. 711 (1st Dist.2009); Copley Press Inc. v. Administrative Office of the Courts, 271 Ill. App. 3d 548, 648 N.E.2d 324, 207 Ill. Dec. 868 (2d Dist. 1995); see also Ill. Att'y Gen. Op. 005 (1999) (Illinois Attorney General opining, in response to inquiry from Illinois Supreme Court justice, that Illinois Courts Commission not covered by FOIA, as lack of reference to courts or judiciary in Act's definition of a public body indicates an intent to exclude the judicial branch from the requirements of that Act).
States’ Attorneys (county level elected officials who serve as prosecutors and counsel for counties and officers) are subject to the Act. Nelson v. Kendall County, 2014 IL 116303
Unless covered by a specific exemption (or by a properly issued protective order in litigation), all records of courts are covered by the Access to Public Records Act. Ind. Code § 5-14-3-2. The Act, however, provides for mandatory exemption from disclosure for any information that is “declared confidential by or under rules adopted by the supreme court of Indiana.” Ind. Code § 5-14-3-4(a)(8).
In 2004, the Indiana Supreme Court adopted amendments to Administrative Rule 9, which governs access to court records. The stated objective of the rule is to “provide maximum public accessibility to court records, taking into account public policy interests that are not always fully compatible with unrestricted access.” See Commentary to Ind. Admin. R. 9(A). Though many of the rule’s provisions simply reiterate exemptions provided by the Access to Public Records Act, see, e.g., Ind. Admin. R. 9(G)(2), the rule also exempts from disclosure many additional types of information. See Ind. Admin. R. 9(G) (providing a exclusive list of exemptions from disclosure, including, among others, records relating to adoption; Acquired Immune Deficiency Syndrome; child abuse; drug tests; grand jury proceedings; paternity records; medical, mental health or tax records; account numbers or personal identification numbers (PINs); and expungement orders entered in criminal or juvenile proceedings). This exclusion can occur without a hearing and without a balancing of the competing interests involved. See Bobrow v. Bobrow, 810 N.E.2d 726, 734 (Ind. App. 2004) (“When public records fall within a mandatory exception under [Ind. Code § 5-14-3-]4(a), a trial court can seal those records without holding . . . a hearing and balancing the competing interests.”).
Administrative Rule 9 in many respects is contrary to constitutional and common law rights of access to judicial records, adopting statutory exceptions without regard to whether such records were traditionally public when the First Amendment was adopted. For example, juvenile proceedings were not closed to the public at the time the Bill of Rights and the Indiana constitution were adopted. At common law, juvenile proceedings were not conducted in secret but were part of the public record, as Justice Sullivan explained in his article tracing the roots of Indiana’s juvenile court system. See Frank Sullivan, Jr., Indiana as a Forerunner in the Juvenile Court Movement, 30 Ind. L. Rev. 279, 279 (1997). Yet Indiana Code Section 31-32-6-3 and Indiana Administrative Rule 9 limit the public information available regarding juvenile proceedings. Under Indiana Code Section 31-32-6-3, ”a delinquency proceeding is open to the public whenever a petition alleging that the child has committed an act that would be murder or a felony if committed by an adult is filed under IC 31-37-10,” with exceptions. Further, under Indiana Administrative Rule 9(G)(2)(g)(i), certain identifying information of people in juvenile proceedings are excluded from the general rule of disclosure.
In addition to specifying certain types of documents that are exempt from disclosure, Rule 9 also includes a “catch-all provision,” which allows for exemption of any information “excluded from public access by specific court order.” Ind. Admin. R. 9(G)(1)(c). Litigants seeking to exclude material from public access under this provision must follow Indiana Code Section 5-14-3-5.5 and Indiana Administrative Rule 9(G)(4)(c)(iii), which requires a public hearing before sealing records. See Travelers Casualty & Surety Co. v. U.S. Filter Corp., 895 N.E.2d 114, 115 (Ind. 2008) (vacating court order sealing materials); Allianz Ins. Co. v Guidant Corp., 884 N.E.2d 405, 409 (Ind. Ct. App. 2008) (holding that order sealing documents was improper even though the parties agreed to the confidentiality of the information). Thus, although state courts are subject to Indiana’s Access to Public Records Act, Indiana Code Section 5-14-3-4(a)(8) excepts documents the judiciary deems confidential, which the judiciary has delineated in Rule 9. These rule changes went into effect Jan. 1, 2005.
In addition to Rule 9, Indiana case law and certain statutes provide further guidelines for access to court records. See, e.g., Ind. Code § 31-39-1-2 (except under certain circumstances, juvenile court records are confidential); see Frank Sullivan, Jr., Indiana as a Forerunner in the Juvenile Court Movement, 30 Ind. L. Rev. 279, 279 (1997); Woolley v. Washington Twp. Small Claims Court, 804 N.E.2d 761, 765, (Ind. App. 2004) (holding that the Washington Township Small Claims Court was a “public agency” under the Access to Public Records Act, but because an affidavit signed by a judge was not a “public record,” the court was not required to follow the Access to Public Records Act regarding the timeliness of its response and a reason for denying a citizen’s request
The Osmundson and other cases indicate the Court considers that both common law and statutory rights of access apply to judicial branch records. Records are not confidential simply because a court is the lawful custodian. Instead, the nature of the document over which the court has custody is determinative. See, e.g., Iowa Code § 598.26(1) ("Until a decree of dissolution has been entered, the record and evidence shall be closed to all but the court, its officers, and the child support recovery unit . . . .").
Despite their inclusion in the Open Records Act, Kentucky courts have held they are not subject to the Open Records Act. Ex parte Farley, 570 S.W.2d 617 (Ky. 1978). The logic of this holding rests on the Kentucky Constitution's separation of powers: "[T]he custody and control of the records generated by the courts in the course of their work are inseparable from the judicial function itself, and are not subject to statutory regulation." Id. at 624; see also 93-ORD-122 (discussing courts and the Open Records Act). The holding has been extended to the other agencies of the Kentucky Court of Justice such as Circuit Clerks and the Administrative Office of the Courts. Separate and apart from Kentucky’s Open Records Act, the Kentucky Court of Justice has promulgated an Open Records Policy, which provides a mechanism for the public to request administrative records of the judicial branch. More information on the policy is on the Court of Justice website at https://courts.ky.gov/Pages/open-records-request.aspx.
Courts may determine when and under what circumstances sensitive materials should be shielded from disclosure, by finding that parties have the burden of making a specific showing that their privacy interests outweigh the public’s constitutional right of access to the record. Copeland v. Copeland, 966 So.2d 1040, 1044-45 (La. 2007). Agencies under the direction of the judiciary are clearly subject to the act. La. Rev. Stat. Ann. § 44:1(A)(1); Denoux v. Bertel, 682 So. 2d 300 (La. App. 4th Cir. 1996), writ denied, 685 So. 2d 144 (La. 1997) (indigent defender program is public body subject to act); Cull v. Cardaro, 68 So.3d 1161, (La.App. 4th Cir. 2011) (juror venire records of parish’s Jury Commission subject to Public Records Act; Henderson v. Bigelow, 982 So.2d 941 (La.App. 4th Cir. 2008) (Court’s Judicial Expense Fund subject to the Act. The Louisiana Supreme Court, however, created a novel exception to the Act by virtue of its "inherent authority," holding that bar examination model answers, any materials related to the grading guidelines or an applicant's bar examinations are exempt from disclosure. Acknowledging that none of the exceptions enumerated under the law applied to such records and documents, the Court nevertheless reasoned that it could create an exception by virtue of the "inherent authority" vested in it by the legislature. Bester v. Louisiana Supreme Court Comm. on Bar Admissions, 779 So. 2d 715 (La. 2001); see also Louisiana Supreme Court Comm. on Bar Admissions v. Roberts, 779 So. 2d 726 (La. 2001) (restating rule set in Bester).
Judicial records are not subject to the Freedom of Access Act. See Asselin v. Superior Court, 2014 Me.Unpub. LEXIS 3 (Jan. 22, 2015). The Legislature has, by statute, limited access to certain court records and proceedings, such as juvenile proceedings, proceedings regarding sterilizations for incompetent people (34-B M.R.S.A. § 7014), approval of a minor's abortion (22 M.R.S.A. § 1597-A) and commitments to mental institutions (34-B M.R.S.A. § 3864). The Supreme Judicial Court of Maine has adopted a Public Information and Confidentiality Policy, JB-05-20 (A. 9-17), which governs the release of public information and the protection of confidential and other sensitive information. The policy defines confidential records to include information made confidential by statute, rule or policy; information subject to a protective order; information regarding a judge or law clerk's notes, drafts or working papers; and information relating to a pending or outstanding search warrant, arrest warrant or confidential law enforcement information.
The PIA applies. See §§ 4-101(j). In addition, the Maryland Court of Appeals has reaffirmed the common law right to inspect and copy judicial records and documents. The Baltimore Sun v. Mayor & City Council of Baltimore, 359 Md. 653, 755 A.2d 1130 (2000). This right precludes a court from sealing court records pursuant to a confidentiality agreement among the parties, absent an express statutory provision or rule promulgated by the Court of Appeals authorizing such closure. Id.
There is no exemption for court records, and all court records, unless those records are specifically under court seal, are open for public inspection. In Missoulian v. Montana Twenty-first Judicial District Court, 281 Mont. 285, 933 P.2d 829 (1997), the Supreme Court held that the district court violated both the Constitution and Mont. Code Ann. § 46-11-701, when it issued a blanket order sealing all evidence in a criminal case without following a strict balancing test between the public's right to know and the defendant's right to a fair trial.
The definition of public records above appears to include records of courts as well. There is old Nebraska case law holding that the public records statutes apply to courts. See State ex rel. Griggs v. Meekes, 19 Neb. 106, 26 N.W. 620 (1886). Certain court records may be sealed pursuant to statute of Nebraska Supreme Court rule. The Attorney General has opined that briefs submitted to a judge are public records even though such documents are not filed with the Clerk of the Court. Neb. Op. Att'y Gen. 04030 (12-27-04).
In State ex rel. Veskrna v. Steel, 296 Neb. 581, 894 N.W.2d 788 (2017), the Court rejected an argument that the separation of powers doctrine precludes the Legislature from making judicial records subject to the public records statutes. The requester in the Steel case sought Judicial Branch Education records and the Court held that such records are public records unless some statute specifies that they are not, or unless the particular record sought falls under the “judicial deliberations privilege.”
The Supreme Court of Nevada has not explicitly ruled as to whether the NPRA applies to the judicial branch. “As a separate branch of government under the Nevada Constitution, the judiciary has the inherent authority to manage its own affairs, make rules, and carry out other incidental powers when ‘reasonable and necessary’ for the administration of justice.” Civil Rights for Seniors v. AOC, 129 Nev. 752, 313 P.3d 216, 220 (2013) (internal citations omitted). “In exercising this power, we have adopted rules declaring that “[a]ll court records in civil actions are available to the public, except as otherwise provided in these rules or by statute.” SRCR 1(3). “Court records” are then defined to include “information ... that is maintained by a court in connection with a judicial proceeding.” SRCR 2(2)(a). This “does not include data maintained by or for a judge pertaining to a particular case or party, such as ... working papers; or information gathered, maintained, or stored by a government agency or other entity to which the court has access but which is not entered in connection with a judicial proceeding.” SRCR 2(2)(b).
OPRA does not address court records. However, New Jersey Court Rule 1:38-1 provides that “Court records and administrative records as defined by R. 1:38-2 and R. 1:38-4 respectively and within the custody and control of the judiciary are open for public inspection and copying” with certain specific exceptions, which are to be “narrowly construed in order to implement the policy of open access to records of the judiciary.”
The 1993 amendments specifically included the courts by NMSA 1978 § 14-2-6(F) (2013). But debate exists as to whether the Legislature or the Supreme Court, by rule, has jurisdiction over court records pursuant to separation of powers limitations. The courts have jealously guarded their prerogative to determine access to their records; no reported decisions exist construing access to court records pursuant to the Inspection of Public Records Act. But see, N.M. Op. Att'y. Gen. 79-14 (1979) (stating that the New Mexico Supreme Court and Court of Appeals must make their current and past opinions available for inspection); and State ex rel., N.M. Press Assoc. v. Kaufman, 1982-NMSC-060, 648 P.2d 300 (1982) (the names of jurors in criminal cases are public records).
- The right of access to court records is recognized by both statute and Court rules. Section 14-2-6 (F) NMSA 1978 defines “public body” to include the judicial branch of government. Rule 1-079 (A) SCRA, entitled Presumption of public access; scope of the rule, provides that Court records are subject to public access unless sealed by order of the court or otherwise protected from disclosure under the provisions of the rule. There is also a common law right of access to court recognized by both the U.S. Supreme Court and the Tenth Circuit. See, e.g., Nixon v. Warner Communications, Inc., 425 U.S. 589, 597 (1978); Helm v. Kansas, 656 F.3d 1277, 1292 (10th Cir. 2011). And although the Tenth Circuit has not squarely addressed the First Amendment right of access to civil court records, “all the other circuits that have considered the issue” have concluded “that the First Amendment guarantees a qualified right of access not only to criminal but also to civil trials and to their related proceedings and records.” New York Civil Liberties Union v. New York City Transit Auth., 652 F.3d 247, 258 (2d Cir. 2011). Indeed, the Tenth Circuit has remained agnostic on the issue. It has twice assumed, without deciding, that there is “a constitutional right of access to court documents,” and that such a right would be governed by the First Amendment standard for public access to criminal trials and proceedings set forth in Press-Enterprise Co. v. Superior Court, 478 U.S. 1 (1986). See United States v. McVeigh (In re Dallas Morning News), 119 F.3d 806, 811-12 (10th Cir. 1997); United States v. Gonzales, 150 F.3d 1246, 1255-56 (10th Cir. 1998).
- Access to Electronic Court Records. On February 20, 2017, the New Mexico Supreme Court adopted rules governing access to digitalized court records. The SOPA system (Secured Odyssey Public Access) addresses who may access court records, how to access court records, and documents and proceedings that are not public. The new rules and procedures raise a number of First Amendment and open records issues, but they have not been tested. NMSC Rule 17-8500-001, February 20, 2017.
Court records are covered by the law. G.S. § 7a-109(a). Virmani v. Presbyterian Health Services Corp., 350 N.C. 449, 515 S.E.2d 675 (1999); France v. France, _ N.C. app. _, 705 S.E.2d 399 (2011). Records of juvenile proceedings, however, are excluded. G.S. § 7B-2901. Additionally, the contents of a will placed on file with the clerk of superior court in a North Carolina county is not a public record or open to inspection until the will is offered for probate. G.S. § 31-11. A written presentence report and the record of an oral presentence report are not public records and may not be made available to any person except as provided in this section. G.S. § 15a-1333.
Courts are not subject to the open records and open meetings laws. Instead, North Dakota courts maintain and dispose of court records in accordance with the rules, policies, and procedures adopted by the North Dakota Supreme Court. N.D.C.C. § 27-05.2-06. The North Dakota Supreme Court has promulgated Administrative Rule 41, which provides a comprehensive framework for public access to court records. N.D. Sup. Ct. Admin. R. 41. The rule may be found online at http://www.ndcourts.gov/rules/Administrative/frameset.htm.
It is generally assumed that a right of access to courts and court records exists, in the absence of an explicit exception. The North Dakota Supreme Court has held, for example, that the public has a right to inspect the records of judicial proceedings after the proceedings are completed and entered in the docket. State ex rel. Williston Herald, Inc. v. O’Connell, 151 N.W.2d 758, 763 (N.D. 1967). The right is subject to reasonable rules and regulations by the court as to who may inspect the records and where and how such inspection may be made. Id. Additionally, court dockets are open to the public. Minot Daily News v. Holum, 380 N.W.2d 347, 350 (N.D. 1986).
Public access to records filed in court generally is governed by Rules 44 and 45 of the Rules of Superintendence adopted by the Ohio Supreme Court. Those rules keep certain personal information, such as credit card numbers and bank account numbers, outside the broad scope of court records that are presumptively open to the public. They provide for anyone to make a request to the clerk of the courts or to the court to see any record, which is presumptively open to the public.
If the court has restricted public access to certain records, a requester must file a formal motion with the court to see it.
Those rules, which the Ohio Supreme Court adopted in 2009, do not have the same force of law that a statute has, but courts follow them, paying little attention to any other source of law governing public access to records. Buckmaster v. Buckmaster, 2014-Ohio-793 (4th Dist.-Highland).
The rules remove from presumptive public access the following kinds of records filed in court:
• social security numbers, except for the last four digits;
• financial account numbers, including but not limited to debit card, charge card, and credit card numbers;
• employer and employee identification numbers;
• a juvenile’s name in an abuse, neglect, or dependency case, except for the juvenile’s initials or a generic abbreviation such as “CV” for “child victim.”
• a juvenile’s previous disposition in abuse, neglect, and dependency cases, juvenile civil commitment files, post-adjudicatory residential treatment facility reports, and post-adjudicatory releases of a juvenile’s social history;
• notes, drafts, recommendations, advice, and research of judicial officers and court staff;
• information on or obtained from the Ohio Courts Network, except that the information shall be available at the originating source if not otherwise exempt from public access;
• in a court of common pleas or a division thereof with domestic relations or juvenile jurisdiction, the following documents:
(i) health care documents, including but not limited to physical health, psychological health, psychiatric health, mental health, and counseling documents;
(ii) drug and alcohol use assessments and pre-disposition treatment facility reports;
(iii) guardian ad litem reports, including collateral source documents attached to or filed with the reports;
(iv) home investigation reports, including collateral source documents attached to or filed with the reports;
(v) child custody evaluations and reports, including collateral source documents attached to or filed with the reports;
(vi) domestic violence risk assessments;
(vii) supervised parenting time or companionship or visitation records and reports, including exchange records and reports;
(viii) financial disclosure statements regarding property, debt, taxes, income, and expenses, including collateral source documents attached to or filed with records and statements;
(ix) asset appraisals and evaluations.
Before adopting the Rules of Superintendence, the Ohio Supreme Court applied the Public Records Act to compel courts to open court records. State ex rel. Scripps Howard Broad. Co. v. Cuyahoga County Court of Common Pleas, Juv. Div., 73 Ohio St. 3d 19, 652 N.E.2d 179 (1995); State ex rel, MADD v. Gosser, 20 Ohio St. 3d 30, 485 N.E.2d 706 (1985); State ex rel, Harmon v. Bender, 25 Ohio St. 3d 15, 494 N.E.2d 1135 (1986).
"[A]ny record used by a court to render a decision is a record subject to R.C. 149.43." State ex rel. WBNS TV Inc. v. Dues, 101 Ohio St. 3d 406, 805 N.E.2d 1116 (2004). But see, State ex rel. Cincinnati Enquirer v. Winkler, 101 Ohio St.3d 382, 805 N.E.2d 1094, 2004-Ohio-1581 (records sealed by an adjudication are not public records).
When a party to an action requests a transcript from that action, the party must pay the fees designated by Ohio Rev. Code § 2301.24, and cannot take advantage of the lower "at cost" fees imposed under the Public Records Act. State ex rel. Slagle v. Rogers, 103 Ohio St. 3d 89, 814 N.E.2d 55, 2004-Ohio-4354, clarified on reconsideration by State ex rel. Slagle v. Rogers, 106 Ohio St.3d 1402, 2005-Ohio-3040 (party to an action may not circumvent payment of official court reporter fees for a copy of a transcript under 2301.24, but may “freely inspect, without copying … as permitted by R.C. 149.43(B)”).
But constitutional separation of powers bars the statute from compelling judges to release personal notes taken in cases over which they are presiding, and that the notes are not records kept by a "public office" and therefore not "public records." State ex rel. Steffen v. Kraft, 67 Ohio St. 3d 439, 619 N.E.2d 688 (1993). The court later relied on Kraft to adopt a "judicial mental process" privilege to exempt from disclosure an attorney-examiner's report to a county Board of Tax Appeals. The court reasoned that the BTA is a quasi-judicial body when discharging its adjudication duties and, therefore, requires the privacy to deliberate granted the courts. TBC Westlake Inc. v. Hamilton County Board of Revision, 81 Ohio St.3d 58, 689 N.E.2d 32 (1998).
All Court records are subject to the Act unless otherwise identified by statute to be confidential. 51 O.S. 24A.30. There are no provisions under the Act that allow parties to simply agree to erase from the public records. Shadid v. Hammond, 2013 OK 103. See also Ober v. State ex rel. Department of Public Safety, 2016 OK CIV APP 2 (Reversal of District Court order sealing record based on defendant’s claim that the sealing was necessary because it could interfere with future employment opportunities). Once a pleading is filed with the Court Clerk, it must be made available for public inspection. 1999 OK AG 58. A video tape viewed in an open court proceeding found to be a part of the court proceedings, even though not marked as an exhibit, and thus should be placed in the files of the court clerk. Oklahoma Assoc. of Broadcasters, Inc. v. City of Norman, 2016 OK 19. Audio recordings of court proceedings filed with or maintained by court clerks are public records unless they are properly sealed by court order or specifically exempt from disclosure by law. 2014 OK AG 1. However, records of judges or justices are not subject to the Act except as they relate to receipt of public funds reflecting all financial and business transactions. 51 O.S. § 24A.3.2., § 24A.4.
All courts in Oregon are subject to Or. Const. Article I, § 10, which generally requires openness. ORS 192.311 provides that the Public Records Law applies to courts and court records. However, the “intended scope of the term ‘court records’” in ORS 192.311 “is not clear from the legislative history” of the statute, the Attorney General has opined. See Attorney General Manual § I.C; see also State ex rel. KOIN-TV v. Olsen, 300 Or. 392, 711 P.2d 966 (1985) (questioning applicability of Public Records Law under former version of ORS 192.410); Oregonian Publishing Co., LLC v. Waller, 253 Or. App. 123, 128 (2012) (noting the legislature added the word “court” to the definition of state agency and “court records” to the definition of “public record” in former ORS 192.410 “[i]n the wake of” the Olsen decision).
The Chief Justice of the Supreme Court of South Carolina is the administrative head of the state's court system. The administrative arm of the court, including the South Carolina Bar, is subject to the act. Access to court proceedings and records has been sought and secured under state and federal constitutional provisions rather than the act. See, e.g., Ex parte Hearst-Argyle Television, Inc., 631 S.E.2d 86 (S.C. 2006); In Ex parte The Island Packet, 417 S.E.2d 575 (S.C. 1992).
Judicial records that are exempt from the Act are: complaints of judicial disability to the Court of the Judiciary, T.C.A. § 17-5-303; proceedings involving allegations of misconduct by or the disability of an attorney, Sup. Ct. R. 9 § 25; proceedings of the court of the judiciary, Jud. Ct. R. 8; and predisposition reports of investigations and evaluations of juveniles, Juv. Proc. R. 33(e). Arguably, the separation of powers doctrine might prohibit additional judicial records from being disclosed by the legislature's enactment of the Public Records Act. See Art. II § 1, 2, Tennessee Constitution; Op. Att'y Gen. No. U92-131, 18 TAM 3-34 (Dec. 28, 1992). In Ballard v. Herzke, 924 S.W.2d 652 (Tenn. 1996), the Supreme Court held that the Tennessee Rules of Civil Procedure are state law which can accept documents from the Public Records Act. Any conflict between provisions of the Rules of Civil Procedure and provisions of the Tennessee Code which cannot be harmoniously construed shall be resolved in favor of the Rules of Civil Procedure. Therefore, documents sealed by a state court are not subject to inspection under the Act. Knoxville News Sentinel v. Huskey, 982 S.W.2d 359 (Tenn. Crim. App. 1998)
The Supreme Court ruled that the documents filed with the clerk of a court are public records but that the Act does not apply to documents that were sealed subject to a protective order. See also Memphis Publishing Co. v. City of Memphis, 19 TAM 9-2 (Tenn. Feb. 22, 1994)(deposition transcripts taken during course of bankruptcy proceedings in which city was a creditor were public records and city could not claim that deposition constituted attorney work product).
The judiciary is specifically excluded from the Act’s definition of “governmental body.” See Tex. Gov’t Code § 552.003(1)(B). The Act provides that “[a]ccess to information collected, assembled, or maintained by or for the judiciary is governed by rules adopted by the Supreme Court of Texas or by other applicable laws and rules,” and that the Act “does not address whether information is considered to be information collected, assembled, or maintained by or for the judiciary.” § 552.0035. The Texas Supreme Court has adopted Rule 12 of the Texas Rules of Judicial Administration that provides for public access to Judicial records.
To fall under the judiciary exclusion, requested records must contain information that pertains to judicial proceedings and be subject to direct supervision of a court. See Tex. Att’y Gen. ORD-17331 (2009); Tex. Att’y Gen. ORD-646 (1996) (finding that function that governmental entity performs determines whether entity falls within judiciary exception to the Act); see also Tex. Att’y Gen. ORD-1083 (2004) (information created by a municipal court judge constituted a record of the judiciary because it was made “at the request of the presiding judge regarding the policies of the Court and policy changes that should be made”); but see Tex. Att’y Gen. ORD-204 (1978) (information held by county judge that does not pertain to proceedings before county court subject to Public Information Act). The Act itself does not define “judiciary,” but the Texas Attorney General’s office has advised that the records of the State Board of Law Examiners and information within the constructive possession of a grand jury are all considered records of the “judiciary.” See Tex. Att’y Gen. ORD-136 (1976); Tex. Att’y Gen. ORD-513 (1988). Likewise, the Attorney General concluded that the Bexar County Personal Bond Program was functioning as an arm of the court when it conducted certain investigations, and therefore the resulting reports were records of the “judiciary” and not subject to the Act. Tex. Att’y Gen. ORD-572 (1990). However, the district attorney’s office is not considered a branch of the judiciary. See Holmes v. Morales, 924 S.W.2d 920, 922-23 (Tex. 1996). If a district attorney has a list of grand jurors actually empaneled during a particular term of court, the list should be made public if requested. Tex. Att’y Gen. ORD-433 (1986). In comparison, a list of prospective grand jurors’ names is not subject to required disclosure. Id.; see also State v. Newton, 179 S.W.3d 104, 111 (Tex. App.—San Antonio 2005, no pet.) (grand jury is an extension of the judiciary and grand jury information is, therefore, not subject to the Act). The Court Reporters Certification Board also does not come within the Act’s definition of “judiciary.” Tex. Att’y Gen. ORD-527 (1989). As such, it was a proper request under the Act for the names and addresses of all shorthand reporters who have received a notice of informal hearing regarding disciplinary matters and copies of all notices of formal hearings sent to the shorthand reporters. Id.
Finally, it should be kept in mind that “case-related documents are generally presumed to be open to the public,” as “Rule 76a of the Texas Rules of Civil Procedure establishes a presumption that court records generally ‘are . . . open to the general public.’” Op Tex. Att’y Gen. No. GA-0203 (2004) (citing Nixon v. Warner Communications Inc., 435 U.S. 589, 597 (1978), Taylor v. Tex., 938 S.W.2d 754, 757 (Tex. App.—Waco 1997, no writ), and In re Thomas, 873 S.W.2d 477, 496 (Tex. Rev. Trib. 1994, no appeal) (affirming “our judicial system’s abiding commitment to providing public access to civil and criminal proceedings and records”)).
GRAMA applies to the judicial branch of government, including the “courts, the Judicial Council, Office of the Court Administrator and similar administrative units in the judicial branch.” Utah Code § 63G-2-103(11)(a)(iii). However, the judiciary is not subject to GRAMA’s appeals provisions. See id. § 63G-2-702(2)(a). Judicial records also may be subject to other statutes, regulations, judicial rules, or court orders that are beyond the scope of this outline. See, e.g., Utah Code Jud. Admin. R4-201 to R4-206.
Although the Public Records Act says it applies to any “branch” of the state government, Vermont Supreme Court opinions suggest that court and judicial records are not subject to the act but rather to separate statutes and rules which define the duties of court clerks, e.g., 4 V.S.A. § 740, as well as the common law right of all courts to control their own procedures and records. Compare 1 V.S.A. § 312(e) (expressly exempting the judiciary from the Open Meeting Law).
It is beyond dispute that Vermont citizens have a “constitutional and common law right of access to court records.” State v. Tallman, 148 Vt. 465, 472, 537 A.2d 422, 427 (Vt. 1987); see also In re Sealed Documents, 172 Vt. 152, 161, 772 A.2d 518, 527 (Vt. 2001); State v. Schaefer, 157 Vt. 339, 347, 599 A.2d 337, 342 (Vt. 1991). These long-standing rights apply in both civil and criminal cases and stem from the right of the public to hold accountable, and have confidence in, the judiciary. See, e.g., Vt. Pub. Acc. Ct. Rec. Rule 1, reporter’s note (“The judiciary, like the other branches of state government, is accountable to the public. Open access to its records and proceedings is essential to maintaining public trust and confidence in the operation of the court system.”).
Indeed, this right of access is so important that the Vermont judiciary created a separate set of rules — the Vermont Rules for Public Access to Court Records (the “Rules”) — which govern the rights of access by the public to judicial records. See Vt. Pub. Acc. Ct. Rec. Rule 1; see also State v. Whitney, 2005 VT 102, ¶ 9, 885 A.2d 1200, 1203 (Vt. 2005). These Rules “provide a comprehensive policy on public access to Judicial Branch records . . . [and] [t]hey shall be liberally construed in order to implement the policies therein.” Vt. Pub. Acc. Ct. Rec. Rule 1. The general policy in Vermont with respect to public access to court records is that such records “shall be open to any member of the public for inspection or to obtain copies.” Vt. Pub. Acc. Ct. Rec. Rule 4 (emphasis added). Specifically, the Rules provide that “[t]he public shall have access to all case records, in accordance with the provisions of this rule, except as provided in subsection (b) of this section.” Vt. Pub. Acc. Ct. Rec. Rule 6(a) (emphasis added). The Reporter’s Notes also state that “[i]f the public has access to a proceeding, it has access to a record of the proceeding, unless that record is specifically exempted from disclosure.” Vt. Pub. Acc. Ct. Rec. Rule 1.
The Public Records Act also specifically exempts from coverage the “[r]ecords of, or internal materials prepared for, the deliberations of any public agency acting in a judicial or quasi-judicial capacity.” 1 V.S.A. § 317(c)(24).
Petit juries and grand juries are specifically excluded from coverage under the Act. Va. Code Ann. § 2.2-3703.A.2.
Access to judicial records both for courts of record and courts not of record is governed by other Virginia statutes and by case law. See Va. Code Ann. § 2.2-3705.5. General district court record requirements are found at Va. Code Ann. § 16.1-69.53 et seq. A new provision governing general district court access procedures, effective July 1, 2018, is found at Va. Code Ann. § 16.1-69.54:1. Juvenile and domestic relations district court access is governed by Va. Code Ann. § 16.1-306. Access to circuit court records is governed by Va. Code Ann. § 17.1-208, which will also be subject to procedural amendments effective July 1, 2018. Effective July 1, 2018, new definitions of “confidential” and “nonconfidential” court records will be found in Va. Code Ann. § 17.1-292.
The Executive Secretary of the Supreme Court of Virginia maintains a publicly viewable database of criminal case information as provided in Va. Code Ann. § 17.1-293.1.
Records of the Judicial Qualification Commission are exempt. Garner v. Cherberg, 111 Wn.2d 811, 765 P.2d 1284 (1988). The Washington State Supreme Court has held that court case files are not subject to the Public Records Act. Nast v. Michaels, 107 Wn.2d 300, 730 P.2d 54 (1986). Subsequent cases have extended this rule to all records held by the judicial branch, including administrative documents and correspondence. Federal Way v. Koenig, 167 Wn.2d 341, 217 P.3d 1172 (2009). Effective in 1016, the Washington Supreme Court adopted a rule (GR 31.1) that provides a presumption of access to such records, subject to all of the exemptions contained in the Public Records Act, as well as additional specific exemptions and a privacy-based “balancing test.”
In West Virginia, the public has a presumptive right of access to a court proceeding and a trial court may limit this right only if there is a compelling countervailing public interest and closure of the court proceedings or sealing of court records is required to protect that interest. Garden State Newspapers v. Hoke, 520 S.E.2d 186, 196 (W. Va.1999) (emphasis supplied). Court records are explicitly mandated to be open to public inspection under the Freedom of Information Act. Associated Press v. Canterbury, 224 W. Va. 708, 688 S.E.2d 317 (2009). Access to court records is also guaranteed by the open courts provision of the state constitution (W. Va. Constitution, Article III, § 17) (see Daily Gazette v. W. Va. State Bar, 326 S.E.2d 705, Syl. Pt. 4) and by W. Va. Code § 51-4-2 (1981) ("[t]he 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."), applied by the Supreme Court in Richardson v. Town of Kimball, 176 W. Va. 24, 340 S.E.2d 582 (W. Va. 1986). and Garden State Newspapers, Inc., v. Hoke, 520 S.E.2d 186, Syl. Pt. 4 (W. Va. 1999).
Moreover, the West Virginia Trial Court Rules provide that court officers and employees must comply with the FOIA and any person is entitled to access court records unless otherwise expressly provided by law. W. Va. Tr. Ct. R. 10.04(a) (1999).
All documents that relate "to the conduct of the public's business, and which are prepared, owned or retained by a court . . . are to be considered “public records.” FOIA requests to a court must be "directed to the particular court, circuit clerk, or other court employee who retains custody of the . . . public records sought." W. Va. Tr. Ct. R. 10.04 (d). However, "writings relating to the conduct of the public's business, but which are prepared, owned and retained by individuals other than court officers or employees, such as private or independent contractors, are not considered “public records.” W. Va. Tr. Ct. R. 10.04(c).
However, ''the right of public access to court records and proceedings is not absolute . . . [T]he right is subject to reasonable limitations imposed in the interest of the fair administration of justice or other compelling public policies.'' Garden State Newspapers, Inc., v. Hoke, 520 S.E.2d 186, 192-193 (W. Va. 1999)).
There are several specific statutes, that make confidential narrow categories of court records, including certain court records relating to divorce (W. Va. Code § 48-2-27), adoption (W. Va. Code § 48-4-10) and juvenile records (W. Va. Code § § 49-5-17, 49-7-1; these sections were amended in 1997 to broaden the disclosure of juvenile records), tax information (W. Va. Code 11-10-5 (d)), and economic development assistance (W. Va. Code § 5B-2-1).
Courts have some limited discretion to order records sealed if they contain trade secrets or confidential business information. For example, parties in litigation may request a court to enter a protective order pursuant to Rule 26 (c)(7) of the W. Va. Rules of Civil Procedure sealing information provided by a party in the discovery stage of litigation (a court may order) "a trade secret or other confidential research, development, or commercial information not be disclosed or be disclosed only in a designated way".
However, sealing of court records may be challenged. In determining whether a record may be sealed from public access, a trial court must balance a citizen's presumptive right of access with a party's interest in confidentiality. The court may seal such records only if there is a compelling countervailing public interest and closure of the court proceedings or sealing of the documents is required to protect that interest. Garden State Newspapers v. Hoke, 520 S.E.2d 186, 192 (W. Va.1999) (emphasis supplied). Even though certain court information is made confidential by statute, reporters cannot be punished for publishing lawfully obtained, truthful information of public interest. State ex rel. Daily Mail Pub. Co. v. Smith, 161 W. Va. 684, 248 S.E.2d 269 (1978), aff'd, 443 U.S. 97, 99 S. Ct. 2667, 61 L. Ed. 2d 399 (1979)
Public records of the Courts should be subject to the Act. Wyo. Stat. § 16-4-202(a) (1977, Rev. 1982). See generally Williams v. Stafford, 589 P.2d 322, 325 (Wyo. 1979) (access to court proceedings should be limited only under exceptional circumstances). In juvenile court proceedings, however, all information, reports or records made are confidential. Wyo. Stat. § 14-6-203 (1977, Rev. 1997).