Overview of the Right of Access to Civil and Criminal Records and Proceedings
I. SOURCE OF THE RIGHT OF PUBLIC ACCESS TO JUDICIAL RECORDS AND PROCEEDINGS
Federal courts have recognized a right of public access, rooted in the First Amendment, Sixth Amendment and common law. In Pennsylvania courts, public access to judicial records is rooted in the Pennsylvania Constitution and Pennsylvania common law.
A. United States Constitution.
- 1. The First Amendment to the United States Constitution provides that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.” Although the First Amendment does not expressly address public access, it “goes beyond protection of the press and the self-expression of individuals to prohibit government from limiting the stock of information from which members of the public may draw.” First Nat’l Bank of Boston v. Bellotti, 435 U.S. 765, 783, 98 (1978). In fact, free speech carries with it some freedom to listen, the right to “receive information and ideas.” Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555 (1980). It prevents the government from closing the courtroom doors, which had long been open to the public at the time the First Amendment was adopted.
- 2. The Sixth Amendment to the United States Constitution provides that “[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial . . . .”
B. Pennsylvania Constitution. Article 1 § 11 of the Pennsylvania Constitution states explicitly that “[a]ll courts shall be open . . . .” The courts have interpreted this as an express requirement that the records filed with the court are equally “open.”
C. Pennsylvania Common Law. Similarly, Pennsylvania courts recognize “there is a long-standing presumption in the common law that the public may inspect and copy judicial records and public documents.” Stenger v. Lehigh Valley Hosp. Ctr., 554 A.2d 954 (Pa. Super. Ct. 1989). The public right of access is important because it is inherent in our democratic form of government, so in order to justify the sealing of a judicial record, a party must overcome this presumption of openness.
II. SUMMARY OF THE RIGHT OF PUBLIC ACCESS TO JUDICIAL RECORDS
A. Criminal Proceedings. The United States Supreme Court has recognized a First Amendment right of access to criminal trials. Specifically, the Court held that criminal trials shall be open to the public unless there is an overriding interest favoring a closed hearing. Allowing the public to view criminal hearings and review judicial documents serves as an effective restraint on the potential for abuse of judicial power.
B. Civil Proceedings. The First Amendment also protects the public’s right of access to civil proceedings. The reasons for allowing public access to civil matters is very similar to the Supreme Court’s reasoning for allowing public access to criminal matters. In particular, allowing the public to access the courts and judicial records casts a “bright light upon the judicial process” and helps prevent “injustice, incompetence, perjury and fraud.”
For most, but not all, types of civil and criminal proceedings and records, there is a presumptive right of public access. That right is not absolute, however, and can be outweighed by countervailing interests. Before a court can deny access to judicial records and proceedings that are presumptively open, the party seeking closure must show, and the court must find, that there is a compelling interest that justifies closure of the proceeding or sealing the record, and that closure is narrowly tailored and the least restrictive means to serve the interest.
Courts have provided a number of reasons for allowing access to judicial records and proceedings. Access to judicial records and proceedings
- promotes informed discussion of governmental affairs by providing the public with a more complete understanding of the judicial system
- serves an important “educative interest”
- gives “the assurance that the proceedings were conducted fairly to all concerned” and promotes the public “perception of fairness”
- has a “significant community therapeutic value” because it provides an “outlet for community concern, hostility, and emotion”
- serves as a check on corrupt practices by exposing the judicial process to public scrutiny, thus discouraging decisions based on secret bias or partiality
- enhances the performances of all involved.
United States v. Criden, 675 F.2d 550, 556 (3d Cir. 1982) (quoting Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 569-72, 584, 596-97 (1980)).
III. PROCEDURAL REQUIREMENTS
A. What Procedures Are Required?
Courts must follow certain procedures prior to closing a court proceeding or sealing a court record.
First, before closure, the court must give notice to the public. Individual notice is not required; however, it is sufficient if there is notice on the court docket of a motion to close or seal court records and/or proceedings.
Second, the court must give the public an opportunity to be heard and to challenge any motions for sealing court records or closing proceedings.
Third, if a court permits closure, it must make factual findings on the record that states the reasons for closure and explain why less restrictive alternatives were insufficient. See United States v. Criden, 648 F.2d 814 (3d Cir. 1981); Commonwealth v. Buehl, 462 A.2d 1316 (Pa. Super. Ct. 1983).
In certain cases, a court may hold a closed (i.e., “in camera”) hearing to determine whether there is a right of access to the record or proceeding.
B. How Can Members Of The Public Or Press Contest The Denial Of Access To Court Records And/or Proceedings?
The public has the ability to assert its rights of access by seeking to intervene in a particular case. For everyday citizens, courts sometimes dispense with such formalities, especially if access is being granted. But a member of the public technically has no standing to be heard in court if it has not formally intervened for the limited purpose of seeking access. Courts usually grant such intervention motions, even if the court then reaches a decision to deny access.
Sometimes, however, courts deny any right of intervention, usually because the court concludes that there is no right of access.
Motions to intervene were filed and discussed in the following two Pennsylvania cases: Commonwealth v. Long, 922 A.2d 892 (Pa. 2007); Commonwealth v. Fenstermaker, 530 A.2d 414, 416 n.1 (Pa. 1987).
C. Can The Public Appeal The Denial Of Access Or Intervention Rights? Yes. A court order denying access to court records and proceedings is immediately appealable under what is known as the collateral order rule. Such an appeal, however, must be timely filed within thirty days of the order denying access.
Appeals are often won because the trial court failed to follow the required procedures, even if the appellate court may agree that closure was appropriate and not an abuse of discretion.
If the court refuses to permit a non-party to intervene, then that order denying intervention must be appealed. Such an order is also immediately appealable under the collateral order doctrine.
It is important to ask the trial court for a stay of all proceedings, not just the closure order, pending the appeal. If the trial court denies a motion to stay, then the same request can be made to the appellate court. Courts are loathe to stay matters pending appeal.
IV. CIVIL PROCEEDINGS AND RECORDS
A. Public Access to Civil Proceedings – General Principles.
There are two methods of analysis used in examining the competing interests involved in a request for closure: the constitutional analysis and the common law balancing approach:
- 1. Common Law Analysis: Using the common law balancing, an individual must show that his or her interest in secrecy outweighs the traditional presumption of openness. The party seeking closure of the record must show “good cause, ” meaning a “clearly defined serious injury” will result if the records are not sealed. If the issue is resolved under common law, there is no need to engage in constitutional analysis. R.W. v. Hampe, 626 A.2d 1218, 1220-21 (Pa. Super. Ct. 1993).
- 2. Constitutional Analysis: Under the constitutional analysis, which is based on the First Amendment to the U.S. Constitution and Article 1 § 11 of the Pennsylvania Constitution, the presumption of openness may be rebutted by a claim that the denial of public access serves an important governmental interest and there is no less restrictive way to serve that government interest. The party seeking closure of the record must also show good cause. R.W. v. Hampe, 626 A.2d 1218, 1220 (Pa. Super. Ct. 1993).
B. Types of Civil Records and Proceedings to which there is a Presumptive Right of Access
Pleadings and Motions – Presumptive Right of Access
– Pleadings are documents filed with a court in a civil action, such as complaints, answers and a wide variety of motions. Motions are procedural filings used to bring a limited, contested matter before a court for decision. Both types of documents are filed with the court and therefore are considered judicial documents open to public inspection. As a result, a party wishing to seal pleadings or motions must overcome the presumption of openness.
Case Management Conferences – No Presumptive Right of Access
– Generally, these are not open to public access as they usually occur between the court and counsel for the parties (and sometimes the parties themselves) and are generally for establishing schedules and related issues for the proceeding. However, any memoranda, orders or other filings for or as a result of the conference (e.g. scheduling order) would be a public judicial record.
Discovery Materials – No Presumptive Right of Access
– Discovery is the process whereby the parties “discover” the identity of documents, witnesses and other relevant information known by their opponent. Types of discovery include depositions, interrogatories, requests for admissions, or requests for production of documents. Generally, there is no public right of access to discovery materials. Discovery materials are retained by the parties during the pre-trial stage. Unlike pleadings and motions, discovery materials are not generally filed with the court, and therefore, are not considered “judicial documents.” Stenger v. Lehigh Valley Hosp. Ctr., 554 A.2d 954 (Pa. Super. Ct. 1989). However, the common law right of access applies to all such materials once they are filed with the court as attachments to non-discovery motions (e.g., motions for summary judgment, briefs, etc.).
Mediation/Settlement Conferences – No Presumptive Right of Access
– Mediation conferences are generally held by the parties prior to trial before a mutually agreeable third party mediator (not a sitting judge) who is court appointed or privately hired by the parties. It is an attempt by the parties to resolve the matter with input from a neutral who can ideally guide them to a resolution before trial. A settlement conference is similar but is often before the judge who will try the case and is typically shorter in duration. Neither is open to public access and, in fact, the negotiations which occur between the parties may not be used or referred to in subsequent trial of the matter.
Civil Hearings and Trials – Presumptive Right of Access
– Generally, the public enjoys a presumptive right of access to civil hearings and trials. However, sometimes closure will be permitted even over the objections of other parties. Most often such closure is permitted in divorce proceedings, mental health hearings, or proceedings that may adversely affect a minor.
- Divorce Proceedings. Although presumptively open, closure may be ordered if access would (1) serve only to embarrass or humiliate (2) lack any useful public purpose because they are matters of a private nature (3) infringe upon privacy interests of minors. R.W. v. Hampe, 626 A.2d 1218 (Pa. Super. Ct. 1993). Nevertheless, divorce proceedings are not normally closed. The party wishing to seal the record or close a hearing must still overcome the presumption of openness and show good cause.
- Mental Health Hearings. The Mental Health Procedures Act allows a mental health hearing to be open to the public unless “it is requested to be private by the person or his counsel.” 50 Pa.C.S.A. § 7304(e)(4). However, even where such a request is made, there is still a presumption of openness. The presumption of openness may be overcome where private material such as medical records may be presented and where testimony is given that would ordinarily be protected by doctor-patient privilege. R.W. v. Hampe, 626 A.2d 1218 (Pa. Super. Ct. 1993). However, a patient-initiated adversarial proceeding, such as a malpractice action, does not receive any protection from the Mental Health Protection Act. To allow such a proceeding to be closed would impermissibly thwart the defendant’s ability to obtain evidentiary records and leave the plaintiff free from public scrutiny.
- Proceedings Adversely Affecting a Minor. Courts are sensitive to proceedings that may adversely affect minors. Specifically, good cause for closure may be shown where, as a result of a civil proceeding, a minor could experience undue harm, danger and/or harassment.
Juvenile Records – Limited Right of Access
– Under Pennsylvanian law, there is a limited right of access to records and proceedings relating to juvenile matters. 42 Pa.C.S.A. § 6307. Access depends upon whether the hearing involves a claim of dependency or delinquency. Generally speaking, dependency involves a child which is in need of parental/custodial care or control, whereas delinquency involved criminal behavior 42 Pa.C.S.A. § 6302. Dependency hearings are subject to the presumption of openness; however, the court may still order a closed hearing if demonstrable danger to the child or overriding privacy concerns are clearly shown. In re M.B., 819 A.2d 59 (Pa. Super. Ct. 2003). (See below for analysis of delinquency proceedings and records.)
Transcripts – Presumptive Right of Access
– Transcripts record, verbatim, the discourse of individuals present during a court proceeding. Transcripts are filed with the court and are therefore considered judicial documents. As a result, the public has a presumptive right of access to transcripts. This includes transcripts of sidebars. However, the public does not traditionally have access to sidebar conferences while they happen, as such communications are often on points of law and other issues that the court and/or the parties direct should occur outside the hearing of the jury.
Settlement Agreements – Presumptive Right of Access If Filed With Court
– A settlement agreement is an agreement between two parties in a lawsuit that outlines the means by which the parties have agreed to resolve the matter outside the courts. Settlement agreements that are filed with the court enjoy a presumptive right of access. Such agreements must be filed with and approved by the court in cases involving minors, incompetent persons and wrongful death cases. Other settlement agreements are not normally filed of record and would not be open to the public.
Post-Trial Motions – Presumptive Right of Access
– Just as the public enjoys a presumptive right to access motions filed prior to and during proceedings, motions filed once proceedings have concluded generally remain open to the public. Post-trial motions are filed after the verdict is entered and request the court reverse or overturn the verdict entered because of alleged error that occurred.
Appellate Court Proceedings and Records – Presumptive Right of Access
– An appellate court may review the decisions of a trial court, but it will not normally preside over a trial. Nevertheless, the same rules that govern trial court hearings govern appellate court hearings. The public enjoys a presumptive right to access appellate hearings, arguments and filings of record.
V. CRIMINAL PROCEEDINGS AND RECORDS
A. Types of Criminal Records and Proceedings to which there is a Presumptive Right of Access
With a few notable exceptions, there is a presumptive right of access to court records and proceedings in criminal cases. Even if there is a presumptive right of access, however, there may be particular countervailing interests, usually the defendant’s Sixth Amendment right to a fair trial as well as the interest in protecting informants, that justify closure of proceedings.
Probable Cause Affidavits/ Search Warrants/ Arrest Warrants – Presumptive Right of Access
– The public has a presumptive right of access to search and arrest warrant affidavits. See Wilson v. Slatalla, 970 F. Supp. 405, 421 (E.D. Pa. 1997). Such records are rarely released prior to the search or arrest. Instead, the public is able to obtain them once the search or arrest is carried out.
Grand Jury Proceedings – No Presumptive Right of Access
– The public is not permitted to attend grand jury proceedings. To keep the grand jury proceedings functioning properly, the proceedings must remain secret. For a discussion of grand jury proceedings, see Fed R. Crim. P. 6(e); United States v. Smith, 123 F.3d 140, 148 (3d Cir. 1997).
Grand Jury Records – No Presumptive Right of Access
– To obtain access to grand jury records, a person must prove that the transcripts are necessary and the need for access outweighs the interest in the secrecy of the grand jury. See United States v. Smith, 123 F.3d 140, 148 (3d Cir. 1997).
Information and Indictments – Presumptive Right of Access
– The public has a First Amendment and common law right of access to indictments. See United States v. Smith, 776 F.2d 1104, 1110-12 (3d Cir. 1985).
Bill of Particulars – Presumptive Right of Access
– A bill of particulars is a detailed statement of the charges brought by a prosecutor against the defendant. Like indictments, there is a presumptive right of public access to this record, so that the public is able to see the charges set forth and appraise the fairness of the proceedings. See United States v. Smith, 776 F.2d 1104, 1110-12 (3d Cir. 1985).
Transcripts—Pre-trial Hearings, Trial, Sidebar Conferences, Sentencing – Presumptive Right of Access
– A court reporter must record all proceedings in criminal cases and the public has the right to access these transcripts. The public can only access the transcripts of sidebar and in camera conferences at which evidentiary or substantive rulings were made.
Pre-Trial Motion Papers – Presumptive Right of Access
– The public has the right to access pre-trial motion papers but there is no right to the evidence filed with the motion. See United States v. Beloff, 1987 U.S. Dist. LEXIS 1249 (E.D. Pa. Feb. 18, 1987).
Pre-trial Proceedings (suppression, due process, and entrapment hearings) – Presumptive Right of Access
– Historically, these proceedings have been open to the public to ensure the proper functioning of the criminal justice system. The following cases discuss the presumptive right of access to these proceedings: Press-Enterprise Co. v. Superior Court, 478 U.S. 1 (1986); United States v. Criden, 675 F.2d 550, 554 (3d Cir. 1982).
Voir Dire/Jury Selection – Presumptive Right of Access
– The public has a right of access to jury selection proceedings to assure victims and the community that offenders are being brought to justice by jurors that are fairly and openly selected. See United States v. Antar, 38 F.3d 1348 (3d Cir. 1994).
Trial – Presumptive Right of Access
– Historically, openness has been considered necessary to guarantee the proper functioning of criminal and civil trials. See Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555 (1980).
Trial Exhibits – Presumptive Right of Access
– There is a presumptive right of access to materials introduced into evidence at trial, as well as materials considered by the jury but not introduced into evidence. See United States v. Criden, 648 F.2d 814, 819-23 (3d Cir. 1981); United States v. Martin, 746 F.2d 964, 968-69 (3d Cir. 1984).
Sidebar Conferences/In Camera Proceedings– No Presumptive Right of Access
– Although the public does not have the right to be present during sidebar conferences or in camera proceedings, the public has a right to access the transcripts from these proceedings. See United States v. Smith, 787 F.2d 111, 114 (3d Cir. 1986).
Post-trial Proceedings – Presumptive Right of Access
– Permitting the public to be present at post-trial proceedings allows the public to observe the fairness of the process. See United States v. Simone, 14 F.3d 833, 839-40 (3d Cir. 1994).
Proceedings Involving Juveniles – Limited Right of Access
– Access to criminal proceedings includes those involving minors. However, courts must balance the public’s First Amendment interest with a minor’s interest in privacy and make a case-by-case decision of whether access will be granted. See United States v. A.D., 28 F.3d 1353 (3d Cir. 1994).
– In Pennsylvania state courts (as opposed to Pennsylvania federal courts), juvenile hearings are closed except in certain situation where the juvenile is over a certain age (12 or 14 years old), the crime is sufficiently serious and the Commonwealth and the juvenile do not agree to closure. All files and records of the court in any juvenile proceeding are open only to the court, the parties, the agency with custody of child, the AOPC and “with leave of court, any other person or agency or institution having a legitimate interest in the proceedings or in the work of the unified judicial system.”
Sentencing – No Presumptive Right of Access
– In United States v. Smith, 123 F.3d 140 (3d Cir. 1997), the court denied access to sentencing proceedings and records, stating that closure is essential to the proper functioning of the grand jury.