Hawaii
Author
Jeffrey S. Portnoy
John P. Duchemin
CADES SCHUTTE LLP
1000 Bishop Street, Honolulu, Hawai‘i 96813
(808) 521-9200
Last updated July 2021
CompareOpen Courts Compendium
CompareI. Introduction: Access rights in the jurisdiction
CompareA. The roots of access rights
The Hawai‘i Constitution provides at least as much protection of the right of the public to access criminal trials as has been found to exist by the United States Supreme Court in the First Amendment to the United States Constitution. Oahu Publ’ns, Inc. v. Ahn, 133 Hawai‘i 482, 494, 331 P.3d 460, 474 (2014).
Similar to the federal constitution, the Hawai‘i Constitution provides that “[n]o law shall be enacted . . . abridging the freedom of speech or of the press.” Haw. Const. art. I, § 4. In interpreting and applying article I, section 4 of the Hawai‘i constitution, the Supreme Court of Hawai‘i considers the case law established under the First Amendment to the United States Constitution. Oahu Publ’ns, Inc. v. Ahn, 133 Hawai‘i 482, 494, 331 P.3d 460, 474 (2014) (citing In re Haw. Gov’t Employees Ass’n, AFSCME, Local 152, AFL-CIO, 116 Hawai‘i 73, 84, 170 P.3d 324, 335 (2007)). However, the Hawai‘i Supreme Court is amenable to recognizing greater free speech protection than that provided by the federal First Amendment: “‘Effectively, the language of federal and Hawai‘i constitutional free speech provisions is identical’ but ‘this court may find that the Hawai‘i Constitution affords greater free speech protection than its federal counterpart.” Oahu Publ’ns, Inc. v. Ahn, 133 Hawai‘i 482, 494, 331 P.3d 460, 474 (2014) (citing Crosby v. State Dep’t of Budget and Fin., 76 Hawai‘i 332, 340 n.9, 876 P.2d 1300 n.9 (1994) and State v. Rodriguez, 128 Hawai‘i 200, 203 n.8, 286 P.3d 809, 812 n.8 (2012).
Applying these principles in discussing the right of the public to access criminal trials, the Hawai‘i Supreme Court “has recognized a tradition of public access, declaring it ‘firmly embedded in [its] system of jurisprudence’ as a ‘general policy of open trials.’” Oahu Publ’ns, Inc. v. Ahn, 133 Hawai‘i 482, 494, 331 P.3d 460, 474 (2014) (citing Gannett Pac. Corp. v. Richardson, 59 Haw. 224, 228, 580 P.2d 49, 54 (1978)). According to the Hawai‘i Supreme Court, open courts are a fundamental component of the Hawai‘i system of law: “Courts are established for the judicial administration of justice. They are open to the public . . . . The fact that they are open serves as a safeguard of the integrity of our courts.” Ahn, 133 Haw. at 495, 331 P.3d at 473 (citing State v. Hashimoto, 47 Haw. 185, 200, 389 P.2d 146, 155 (1963) (alterations in original)). Furthermore, “[t]he corrective influence of public attendance at trials for crime [i]s ... important to the liberty of the people.” Ahn, 133 Hawai‘i at 495, 331 P.3d at 473 (citing Territory v. Scharsch, 25 Haw. 429, 436 (1920)); see also id. (“The words ‘public trial’ are self-explanatory . . . a public trial is a trial at which the public is free to attend.”).
Despite the presumptive openness of criminal proceedings, the Supreme Court of Hawai‘i has recognized the right of access to be qualified; although “courtroom proceedings shall be open to the public,” there may be “certain rare and compelling circumstances” requiring closed proceedings. Honolulu Advertiser, Inc. v. Takao, 59 Haw. 237, 238, 580 P.2d 58, 60 (1978).
In the civil context, the Hawai‘i Supreme Court has recognized that the presumption of openness also applies to probate proceedings and records. “[T]he reasons underlying openness in the criminal context . . . are equally compelling in the civil context . . . . We hold, then, that third parties have a right to file petitions challenging the closure of probate court proceedings or the sealing of court records under a principle of law supplementing the probate code.” In re Estate of Campbell, 106 Hawai‘i 453, 462, 106 P.3d 1096, 1105 (2005).
CompareB. Overcoming a presumption of openness
The qualified right of public access provided in the First Amendment and article I, section 4 of the Hawai‘i Constitution “can be overcome only by an overriding interest based on findings that closure is essential to preserve higher values and is narrowly tailored to serve that interest.” Oahu Publ’ns Inc. v. Ahn, 133 Hawai‘i 482, 496–97, 331 P.3d 460, 474–75 (2014), as corrected (Aug. 5, 2014) (citing Press-Enter. Co. v. Superior Court of Cal., Riverside Cty., 464 U.S. 501, 510, 104 S. Ct. 819, 824, 78 L. Ed. 2d 629 (1984)) (emphasis in original) (some citations omitted).
CompareC. Procedural prerequisites to closure
The Supreme Court of Hawai‘i requires that both procedural and substantive prerequisites be met in order to overcome the public’s qualified right of access to criminal trials. Oahu Publ’ns Inc. v. Ahn, 133 Hawai‘i 482, 497, 331 P.3d 460, 475 (2014), as corrected (Aug. 5, 2014) (citing Oregonian Publ’g Co. v. U.S. Dist. Court for Dist. of Or., 920 F.2d 1462, 1466 (9th Cir. 1990)).
The “procedural prerequisites to entry of an order closing a criminal proceeding to the public [are] (1) those excluded from the proceeding must be afforded a reasonable opportunity to state their objections; and (2) the reasons supporting closure must be articulated in findings.” Ahn, 133 Haw. at 497–98, 331 P.3d at 475–76 (citing United States v. Brooklier, 685 F.2d 1162, 1167–68 (9th Cir. 1982)).
The substantive reasons that must be found and included in the findings are: “(1) [the] closure serves a compelling interest; (2) there is a substantial probability that, in the absence of closure, this compelling interest would be harmed; and (3) there are no alternatives to closure that would adequately protect the compelling interest.” Ahn, 133 Haw. at 497–98, 331 P.3d at 475–76 (citing Oregonian, 920 F.2d at 1466).
The Ahn case provides the first and, to date, only time the Hawai‘i Supreme Court has applied this standard. (Earlier cases including Gannett Pac. Corp. v. Richardson, 59 Haw. 224, 228, 580 P.2d 49, 54 (1978), and Honolulu Advertiser, Inc. v. Takao, 59 Haw. 237, 238, 580 P.2d 58, 60 (1978), had articulated a less media-friendly standard, based not on the First Amendment but on a common-law tradition of open criminal proceedings (Takao, 59 Haw. at 239, 580 P.2d at 59), by which a court could deny access to criminal proceedings and court records if “there is a substantial likelihood that an open hearing as to that part of the proceedings would interfere with the defendant’s right to a fair trial by an impartial jury.” Gannett, 59 Haw. at 228, 580 P.2d at 574. Although the Hawai‘i Supreme Court did not explicitly overrule Richardson and Takao in Ahn, the standard articulated in Ahn appears to render obsolete the “substantial likelihood” standard set forth in those earlier cases.)
Ahn involved a highly publicized criminal trial of federal agent Christopher Deedy, who had been charged with second-degree murder for shooting and causing the death of a patron in a fast food restaurant in Waikiki. The five-week criminal trial, which ended in a deadlocked jury and ensuing mistrial, attracted “[c]onsiderable public attention and media coverage.” 133 Hawai‘i at 487, 331 P.3d at 465. During jury deliberations on the final day of the trial, the trial judge held “five court proceedings that were not open to the public,” but attended by prosecutors and defense counsel, to “address matters relating to the jury.” Id. at 486, 331 P.3d at 464. Three of the five non-public proceedings took place before the case was called in open court. Id. The fourth non-public proceeding was a bench conference in open court, and the fifth took place after the trial judge ordered the courtroom cleared of all members of the public. Id. at 487, 331 P.3d at 465. The trial court later reopened the courtroom, brought in the jury, polled the jurors on their inability to reach a unanimous verdict, and declared a mistrial. Id. The court sealed all portions of the transcript related to the five non-public sessions. Id. The trial court did not provide any reasoning for clearing the courtroom, holding the five non-public proceedings, and sealing the transcripts of those five proceedings. Id. at 487–88, 331 P.3d at 465–66.
After the mistrial was declared, the Honolulu Star-Advertiser newspaper and Hawaii News Now (the news arm of television stations KHNL and KGMB) filed a petition with the state Supreme Court for (1) a writ of prohibition preventing the trial court from enforcing any order sealing portions of the transcripts of the five closed proceedings, and also ordering the trial court to unseal all of those transcripts; and (2) a writ of mandamus prohibiting the trial court from closing the courtroom either in the re-trial of the Deedy case, or in any other criminal proceeding. Id. While the media organizations’ petition was pending, the Hawai‘i Supreme Court temporarily remanded the case to the trial court so that the petitioners could file a request with the circuit court to seek access to the sealed filings. Id. The petitioners duly filed that request, and after a hearing, the trial court issued an order that, although partially granting the request for unsealing the transcripts (with jurors’ names redacted), also attempted to justify the trial court’s initial decision to close the proceedings:
The Partial Order to Unseal acknowledged that “the news media have a qualified right of access to judicial proceedings and records.” Further, the order noted that “[a] transcript of any proceedings that have been closed . . . may be released when the danger of prejudice has passed and the factors militating in favor of closure no longer exist.”
The Partial Order to Unseal explained the circuit court’s actions, indicating the circuit court’s “belief that necessary discussions between the [circuit court] and counsel, on the one hand, and deliberating jurors, on the other, traditionally and historically have been closed to the public[.]”
During these necessarily narrowly tailored discussions, the [circuit court] must avoid intruding upon or inquiring into the jury’s deliberations, and must avoid exposing the individual jurors to anything that may in any way improperly influence their continuing decision-making processes.
The circuit court noted that requiring a juror to answer questions in front of family and friends of the Defendant, the alleged victim, and the news media could “expose a juror to pressure and matters which are not part of the evidence to be considered, but it also could hamper the [circuit court’s] search for candid answers from that juror.” The circuit court noted that privacy and security of the jurors and the importance of preserving an impartial jury to ensure a fair trial on behalf of both a defendant and the State, as the specific reasons supporting the closure:
For all of these reasons, in order to preserve a juror’s privacy and security and the integrity of a fair and impartial jury decision based solely upon the trial evidence and the law provided by the Court, and to protect the right of both parties to a fair trial and verdict, public access would not play a significant positive role in the functioning of this process.
Therefore, the circuit court concluded that because “public access would not play a significant positive role,” the closure of the courtroom and denial of public access to the transcript of the closed proceedings was warranted.
Id. at 489, 331 P.3d at 467.
The unsealed transcripts revealed that the five non-public proceedings involved discussions over a juror who had greeted a member of the public that the jury foreperson thought might be a “friend of a friend” of a family interested in the outcome of the trial. Id. at 490–92, 331 P.3d at 468–70. After questioning by the court, the juror was allowed to remain on the jury. Id.
The Supreme Court used the Ahn case to address a number of questions: (1) “the extent to which our Constitution and history pronounce . . . rights of public access to courtrooms” similar to the qualified First Amendment right to such access recognized by the U.S. Supreme Court; (2) the “minimum procedures that must be observed” to protect that right; (3) whether that right applies “to midtrial examination of jurors regarding allegations of misconduct;” and (4) “under what circumstances the public has a right of access to a transcript of a closed proceeding.” Id. at 493, 331 P.3d at 471.
On the first question, the Hawai‘i Supreme Court held that the Hawai‘i Constitution provides “at least as much protection of the right of the public to access criminal trials as has been found by the United States Supreme Court in the First Amendment to the United States Constitution.” Id. at 494, 331 P.3d at 472. The Hawai‘i Supreme Court further noted the state courts’ “long tradition of accessibility by the public,” dating back to the courts of the Kingdom (and later United States territory) of Hawai‘i that was “firmly embedded in our system of jurisprudence as a general policy of open trials” that “are a fundamental component of our system of law.” Id. at 495, 331 P.3d at 473 (quotation marks omitted). The Supreme Court noted that courts’ openness “serves as a safeguard of the integrity of our courts” and that “[t]he corrective influence of public attendance at trials for crime is important to the liberty of the people.” Id. (quotation marks and certain brackets omitted).
On the question of procedures that must be observed to protect the right of public access to criminal trials, the Supreme Court noted the right “is not absolute,” id., at 496, 331 P.3d at 474 (quoting Globe Newspaper Co. v. Superior Court for Norfolk Cnty., 457 U.S. 596, 606 (1982)), and, quoting heavily from U.S. Supreme Court and Ninth Circuit opinions articulating the federal constitutional standard, set forth the following rules:
[T]he qualified right of public access provided by the First Amendment and article 1, section 4 can be overcome “only by an overriding interest based on findings that closure is essential to preserve higher values and is narrowly tailored to serve that interest.” Press-Enterprise I, 464 U.S. at 510, 104 S.Ct. 819 (emphasis added); Press-Enterprise II, 478 U.S. at 9–10, 106 S.Ct. 2735; see also Globe Newspaper Co., 457 U.S. at 606–07, 102 S.Ct. 2613 (“Where . . . the State attempts to deny the right of access in order to inhibit the disclosure of sensitive information, it must be shown that the denial is necessitated by a compelling governmental interest, and is narrowly tailored to serve that interest”). The trial court must articulate the interest the closure protects, “along with findings specific enough that a reviewing court can determine whether the closure order was properly entered.” Press-Enterprise I, 464 U.S. at 510, 104 S.Ct. 819; Press–Enterprise II, 478 U.S. at 10, 106 S.Ct. 2735.
Additionally, if the court is contemplating whether closure of the courtroom is necessary, it must provide a reasonable opportunity for the public to object. “[T]he press and the general public must be given an opportunity to be heard on the question of their exclusion.” Globe Newspaper Co., 457 U.S. at 609 n. 25, 102 S.Ct. 2613 (citing Gannett Co., 443 U.S. at 401, 99 S.Ct. 2898 (Powell, J., concurring)). The requirement of notice continues to apply when the compelling interest asserted is protection of the defendant’s Sixth Amendment right to a fair trial by an impartial jury. United States v. Brooklier, 685 F.2d 1162, 1168 (9th Cir.1982); see also ABC, Inc. v. Stewart, 360 F.3d 90, 95 (2d Cir.2004) (noting that no notice had been provided before closure of voir dire in jury selection); In re S.C. Press Ass’n, 946 F.2d 1037, 1040 (4th Cir.1991).
The United States Supreme Court has not explicated a standard for notice. However, individual notice may be practicable under certain circumstances.
***
The requirements that must be satisfied by a court in order to overcome the qualified right of the public to access criminal trials may be divided into procedural and substantive elements. Oregonian Pub. Co. v. U.S. Dist. Court for Dist. of Or., 920 F.2d 1462, 1466 (9th Cir.1990). The “procedural prerequisites to entry of an order closing a criminal proceeding to the public [are] (1) those excluded from the proceeding must be afforded a reasonable opportunity to state their objections; and (2) the reasons supporting closure must be articulated in findings.” Brooklier, 685 F.2d at 1167–68. The substantive reasons that must be found and included in the findings are: “(1) [the] closure serves a compelling interest; (2) there is a substantial probability that, in the absence of closure, this compelling interest would be harmed; and (3) there are no alternatives to closure that would adequately protect the compelling interest.” Oregonian Pub., 920 F.2d at 1466 (citing Press-Enterprise II, 478 U.S. at 13–14, 106 S.Ct. 2735).
Id. at 496–98, 331 P.3d at 474–76.
The Supreme Court then turned to the more specific questions of whether a qualified right of public access existed in the circumstances raised in Ahn—namely, the mid-trial examination of jurors in a criminal trial regarding allegations of potential juror misconduct—whether the trial court’s closure of such a proceeding had violated that right, and finally, under what circumstances the public can gain access to sealed transcripts of court proceedings. For both of these questions, the Court examined “whether experience and logic indicate” that the public should be granted access. Id. at 498, 331 P.3d at 476.
On the question of the right of access to a mid-trial juror examination for potential misconduct, the Court noted that such an examination could implicate “the defendant’s Sixth Amendment right to an impartial jury,” and that those Sixth Amendment rights “may conflict with the right of access of the public.” Id. Nonetheless, the Court held that “at a minimum, a qualified First Amendment interest” existed to access to such a mid-trial juror examination regarding potential misconduct. Id. at 504, 331 P.3d at 482. The Court stated that, because there “is no clear tradition of either open or closed proceedings when a court conducts a midtrial examination of jurors regarding potential misconduct,” the “experience prong of the ‘logic and experience’ test provides little guidance in this case.” Id. at 499, 501, 331 P.3d at 477, 479. By contrast, the Court identified “six ‘societal interests’ that are advanced by open proceedings,” all of which were present in Ahn. Id. at 502, 331 P.3d at 480. First, access to the proceeding “would educate the public on the importance of an impartial jury.” Id. Second, access “would provide assurance that the system is fair to all concerned because it would ensure the public that significant misconduct, if any, is being appropriately addressed and managed.” Id. Third, “public access to criminal proceedings also has a ‘significant community therapeutic value’ because it provides an ‘outlet for community concern, hostility, and emotion’” especially where, as in the present high-profile case, “the public ha[d] made a significant investment of interest and attention” such that “closing a portion of the proceeding [will] undoubtedly breed concern and result in unbridled speculation, whereas open proceedings will resolve such concerns.” Id. Fourth, the proceeding’s openness would “serv[e] as a check on ‘the misconduct of participants’ by exposing the judicial process to public scrutiny, thus discouraging decisions based on secret bias or partiality.” Id. Fifth, “public access enhances the performance of all involved” in the proceeding by “assur[ing] the public of the integrity of the participants in the system” and “elevat[ing] confidence in the judicial process by providing greater transparency.” Id. Sixth, “[p]ublic observation of juror examination will discourage perjury because members of the public who might be able to contradict false testimony will not learn of that testimony unless the proceedings are open to the public.” Id. Based on these considerations, the Supreme Court held “that the qualified right of access to criminal trials under article 1, section 4 of the Hawai‘i Constitution is not extinguished by the mere necessity to conduct midtrial examination of jurors to investigate potential juror misconduct.” Id. at 504, 331 P.3d at 482.
Having decided that the public had a qualified right of access to the five proceedings at issue in Ahn, the Supreme Court held that the trial court, in closing the courtroom to question the jurors, failed to protect the public’s access rights under the First Amendment and the Hawai‘i Constitution. Id. at 504–05, 331 P.3d at 482–83. The Supreme Court based this holding on the trial court’s failure to provide any reason for closing the courtroom at the time it did so; because “[n]o contemporaneous articulation was made by the circuit court . . . the procedures of the circuit court were insufficient to protect” the public’s access rights. Id. at 505, 331 P.3d at 483.
The Court also noted that the circuit court attempted, after the fact, to justify the closure by pointing to the need for “the privacy and security of the jurors and the importance of preserving an impartial jury to ensure a fair trial.” Id. Those reasons, however, were inadequate, in and of themselves, to “provide sufficient justification for a closure of a court proceeding.” Id.
Although the Supreme Court declined to decide whether the risk of juror prejudice would have “outweighed the public right of access in the present case,” the Court provided a procedural roadmap for future trial courts to decide whether the potential prejudice to jurors would require courtroom closure:
Specifically, the circuit court may consider the nature of the likely testimony provided by individual jurors, the probability of such information reaching the remaining jurors, and the likely prejudicial impact of this information. Importantly, the court should always consider the availability or efficacy of alternatives to closure that could neutralize the effect of the reach of such prejudicial information. Rather than articulating generalized statements of policy, a court must make factual findings specific to the circumstances that indicate the substantial likelihood that an open hearing would interfere with the defendant’s right to a fair trial by an impartial jury.
Id. at 504, 331 P.3d at 482.
On the question of public access to the transcripts of the non-public proceedings, the Supreme Court stated that “the firmly embedded general policy of openness . . . also applies to the transcript of closed proceedings,” and that “[h]istorically, post-trial transcript access has been granted as soon as the factors which prompted hearing closure have been resolved.” Id. at 506, 331 P.3d at 484. The Supreme Court concluded that “[t]herefore . . . precedent requires the release of the transcript once any competing interests that militate for closure of a hearing traditionally open to the public are no longer viable.” Id. As with access to mid-trial juror examinations, the Court noted “logical interests” that dictated access to transcripts of closed proceedings:
The same logical interests that animate the public’s right of access to courtroom proceedings also underlie the benefits that result from public access to a transcript of closed proceedings once the danger that precipitated closure has passed. Unreasonable delay in the release of a transcript “frustrates[s] the ‘community therapeutic value’ of openness.” Press-Enterprise II, 478 U.S. at 13, 106 S.Ct. 2735. Public access to a transcript of a closed proceeding also “enhances both the basic fairness of the criminal trial and the appearance of fairness so essential to public confidence in the criminal justice system.” Press-Enterprise I, 464 U.S. at 508, 104 S.Ct. 819. Further, once the trial is completed, a defendant’s article 1, section 14 rights to a fair and impartial jury and public trial under the Hawai‘i Constitution are typically no longer concerns, and consequently there would be no logical reason to continue to deny the right of access of the public for the purpose of protecting a defendant’s right to a fair trial.
Id.
The Court therefore held that “a qualified public right of access to a transcript of a closed proceeding is present under both the First Amendment and article 1, section 4 of the Hawai‘i Constitution, once the overriding interests that militated for closure of the proceeding are no longer viable.” Id. at 507, 331 P.3d at 485. Moreover, denial of access to the transcript must be explained by the trial court and provide a procedure by which to challenge the denial:
“Indeed, the denial of the motion to release the transcripts was in itself a denial of the right of access protected by the first amendment.” Brooklier, 685 F.2d at 1172. “It must be tested by the same standard and must satisfy the same procedural prerequisites as the initial closure.” Id. Therefore, the same procedural and substantive protections that must be observed by a court considering closure of courtroom proceedings in which the public has a potential qualified right of public access must also be observed if a court is contemplating to deny access to the transcript of the closed proceeding.
If public access to a transcript is to be denied, “a trial judge should explain why the material is entitled to privacy.” Brooklier, 685 F.2d at 1172. “[I]f a court contemplates sealing a document or transcript, it must provide sufficient notice to the public and press to afford them the opportunity to object or offer alternatives.” Phoenix Newspapers, 156 F.3d at 951. “If objections are made, a hearing on the objections must be held as soon as possible.” Phoenix Newspapers, 156 F.3d at 949. The hearing should provide a “meaningful opportunity to address sealing the transcripts on the merits, or to discuss with the court viable alternatives.” Id.
Substantively, the trial court is required to make specific findings demonstrating a compelling interest, a substantial probability that the compelling interest would be harmed, and there is no alternative to continued sealing of the transcript that would adequately protect the compelling interest. Id. at 949. The trial court may not rely on “generalized concerns” but must indicate facts demonstrating “a compelling interest justifying the continued sealing of the hearing transcript.” Id. at 950. Additionally, the court must “specifically explain the necessary connection between unsealing the transcript” and the infliction of irreparable damage resulting to the compelling interest. Id. (holding that the refusal to unseal the transcript was in error, as the court did not explain the required connection between unsealing the transcript and irreparable damage to the compelling interest).
Further, only access to those parts of transcript “reasonably entitled to privacy” should be denied. Press-Enterprise I, 464 U.S. at 513, 104 S.Ct. 819. Therefore, the “trial judge should seal [ ] such parts of the transcript as necessary to preserve the anonymity of the individuals sought to be protected.” Id.
Id. The Hawai‘i Supreme Court held that the trial court in Ahn failed to “adequately protect the public’s right of access” to the transcript of the closed proceedings by (1) denying access for more than six months, when juror privacy and bias was evidently not at risk, based on the eventually released contents of the transcript with jurors’ names redacted, and (2) failing to “provide notice regarding its intention to deny access to the transcript and to hold a hearing allowing objections and alternatives to be presented if any person wished to be heard,” and further failing to:
make specific findings on the record: (1) identifying the compelling interest that would be harmed by public access to the transcript, (2) demonstrating that a substantial risk of harm to the compelling interest would occur due to public access to the transcript, and (3) identifying any alternatives to denial of public access that the court considered but found insufficiently protective.
Id., 133 Hawai‘i at 507–08, 331 P.3d at 485–86.
Although the Supreme Court’s opinion in Ahn did not address all circumstances (for example, the case does not discuss public access to civil, as opposed to criminal, courtroom proceedings and records), the opinion’s combination of sweeping proclamations of the public’s right to access criminal trial proceedings, and specific procedural instructions on factors that courts must consider in determining whether to close such proceedings, provides an analytical framework that Hawai‘i courts are likely to follow, or at least find highly persuasive, whenever considering public access to court proceedings and records. See Grube v. Trader, 142 Hawai‘i 412, 420 P.3d 343, (2018); Oahu Publ’ns v. Takase, 139 Hawai‘i 236, 386 P.3d 873 (2016).
CompareII. Procedure for asserting right of access to proceedings and records
CompareA. Media standing to challenge closure
The qualified right of access to criminal proceedings extends to the entire public, including the media. Oahu Publ’ns v. Ahn, 133 Hawai‘i 482, 495–96, 331 P.3d 460, 473–74 (2014). In Ahn the court indicated the media has standing in a criminal trial to challenge a courtroom closure via a petition for a writ of mandamus and/or prohibition. Id. at 494, 331 P.3d at 471; see also Grube v. Trader, 142 Hawai‘i 412, 424, 420 P.3d 343, 355 (2018). Ahn also indicates that a courtroom closure may be challenged after the fact and does not become moot when the proceeding in question has concluded, because “the likely evasion of full review and the public interest criteria of the public nature of the issue, the likelihood of recurrence, and the desirability of an authoritative determination are demonstrably evident.” Id. at n.13.
CompareB. Procedure for requesting access in criminal cases
The trial court has an affirmative duty to notify the public when contemplating closure and to provide opportunity for objections and reasons for the closure. If a court is contemplating closure of a proceeding, “it must provide a reasonable opportunity for the public to object,” and “the press and the general public must be given an opportunity to be heard on the question of their exclusion.” Oahu Publ’ns v. Ahn, 133 Hawai’i 482, 497, 331 P.3d 460, 474 (2014) (quoting Globe Newspaper Co. v. Superior Court for Norfolk Cnty., 457 U.S. 596, 609 n.5 (1982)).
If this opportunity is not provided or if the reasons provided are insufficient, Hawaii courts allow third-party members of the public or media to petition for mandamus and/or prohibition to the state supreme court, both to protest a closure made without notice or opportunity to object, and to appeal the substance of a closure order made after such notice and opportunity. Ahn, 133 Hawai’i at 493 & n.13, 331 P.3d 471; see also Gannett Pac. Corp. v. Richardson, 59 Haw. 224, 227, 580 P.2d 49, 53 (1978).
CompareC. Procedure for requesting access in civil matters
The Supreme Court of Hawai‘i has held that a writ of prohibition is “an appropriate vehicle” for challenging a closure order in the probate context. In re Estate of Campbell, 106 Hawai‘i 453, 454, 106 P.3d 1096, 1097 (2005). The Court’s language did not foreclose the possibility of other “vehicle[s] for challenging a closure order” in a civil matter.
CompareD. Obtaining review of initial court decisions
Hawai‘i courts allow third-party members of the public or media to petition for mandamus and/or prohibition to the state supreme court, both to protest a closure made without notice or opportunity to object, and to appeal the substance of a closure order made after such notice and opportunity. Ahn, 133 Hawai‘i at 493 & n.13, 331 P.3d 471; In re Estate of Campbell, 106 Hawai‘i 453, 454, 106 P.3d 1096, 1097 (2005); see also Gannett Pac. Corp. v. Richardson, 59 Haw. 224, 227, 580 P.2d 49, 53 (1978).
CompareIII. Access to criminal proceedings
CompareA. In general
The Hawai‘i Supreme Court “has recognized a tradition of public access, declaring it ‘firmly embedded in [its] system of jurisprudence’ as a ‘general policy of open trials.’” Oahu Publ’ns, Inc. v. Ahn, 133 Hawai‘i 482, 494, 331 P.3d 460, 474 (2014) (citing Gannett Pac. Corp. v. Richardson, 59 Haw. 224, 228, 580 P.2d 49, 54 (1978). According to the Hawai‘i Supreme Court, open courts are a fundamental component of the Hawai‘i system of law: “Courts are established for the judicial administration of justice. They are open to the public . . . . The fact that they are open serves as a safeguard of the integrity of our courts.” Oahu Publ’ns Inc. v. Ahn, 133 Haw. 482, 495, 331 P.3d 460, 473 (2014), as corrected (Aug. 5, 2014) (citing State v. Hashimoto, 47 Haw. 185, 200, 389 P.2d 146, 155 (1963) (alterations in original)). Furthermore, “[t]he corrective influence of public attendance at trials for crime [i]s ... important to the liberty of the people.” Oahu Publ’ns Inc. v. Ahn, 133 Haw. 482, 495, 331 P.3d 460, 473 (2014), as corrected (Aug. 5, 2014) (citing Territory v. Scharsch, 25 Haw. 429, 436 (1920)); see also id. (“The words ‘public trial’ are self-explanatory . . . a public trial is a trial at which the public is free to attend.”).
The public’s qualified right of access to particular criminal proceedings is based upon the “two complementary considerations” of “logic and experience.” Oahu Publ’ns Inc. v. Ahn, 133 Haw. 482, 494, 331 P.3d 460, 472 (2014), as corrected (Aug. 5, 2014) (citing Press-Enter. Co. v. Superior Court of Cal. for Riverside Cty., 478 U.S. 1, 8 (1986)) (some citations omitted). “Under the ‘experience’ consideration, a right of the public to attend trials relies on ‘whether the place and process have historically been open to the press and general public’ because a ‘tradition of accessibility implies the favorable judgment of experience . . . .’” Id. (citing Press-Enter. Co. v. Superior Court of Cal. for Riverside Cty., 478 U.S. 1, 8 (1986)) (some citations omitted). “Under the ‘logic’ consideration, the right of the public to attend a criminal proceeding relies on whether ‘public access plays a significant positive role in the functioning of the particular process in question.’” Id. (citing Press–Enter. Co. v. Superior Court of Cal. for Riverside Cty., 478 U.S. 1, 8 (1986)). If a criminal proceeding fulfills the logic and experience considerations, a qualified First Amendment right of access attaches to that proceeding. Id.
CompareB. Pretrial proceedings
CompareC. Criminal trials
In Oahu Publications v. Ahn, 133 Hawai‘i. 482, 331 P.3d 460 (2014), as corrected (Aug. 5, 2014), the Hawai‘i Supreme Court held that the Hawai‘i Constitution provides “at least as much protection of the right of the public to access criminal trials as has been found by the United States Supreme Court in the First Amendment to the United States Constitution.” Id. at 494, 331 P.3d at 472. The Hawai‘i Supreme Court noted that it “has recognized a tradition of public access, declaring it ‘firmly embedded in [its] system of jurisprudence’ as a ‘general policy of open trials.’” Id. (citing Gannett Pac. Corp. v. Richardson, 59 Haw. 224, 228, 580 P.2d 49, 54 (1978). The Court stated that courts’ openness “serves as a safeguard of the integrity of our courts” and furthermore that “[t]he corrective influence of public attendance at trials for crime is important to the liberty of the people.” Id. at 495, 331 P.3d at 473 (citing Territory v. Scharsch, 25 Haw. 429, 436 (1920)); see also id. (“The words ‘public trial’ are self-explanatory . . . a public trial is a trial at which the public is free to attend.”).
On the question of procedures that must be observed to protect the right of public access to criminal trials, the Supreme Court noted the right “is not absolute,” id. at 496, 331 P.3d at 474 (quoting Globe Newspaper Co. v. Superior Court for Norfolk Cty., 457 U.S. 596, 606 (1982)), and, quoting heavily from U.S. Supreme Court and Ninth Circuit opinions articulating the federal constitutional standard, set forth the following rules:
[T]he qualified right of public access provided by the First Amendment and article 1, section 4 can be overcome “only by an overriding interest based on findings that closure is essential to preserve higher values and is narrowly tailored to serve that interest.” Press-Enterprise I, 464 U.S. at 510, 104 S.Ct. 819 (emphasis added); Press-Enterprise II, 478 U.S. at 9–10, 106 S.Ct. 2735; see also Globe Newspaper Co., 457 U.S. at 606–07, 102 S.Ct. 2613 (“Where ... the State attempts to deny the right of access in order to inhibit the disclosure of sensitive information, it must be shown that the denial is necessitated by a compelling governmental interest, and is narrowly tailored to serve that interest”). The trial court must articulate the interest the closure protects, “along with findings specific enough that a reviewing court can determine whether the closure order was properly entered.” Press-Enterprise I, 464 U.S. at 510, 104 S.Ct. 819; Press-Enterprise II, 478 U.S. at 10, 106 S.Ct. 2735.
Additionally, if the court is contemplating whether closure of the courtroom is necessary, it must provide a reasonable opportunity for the public to object. “[T]he press and the general public must be given an opportunity to be heard on the question of their exclusion.” Globe Newspaper Co., 457 U.S. at 609 n. 25, 102 S.Ct. 2613 (citing Gannett Co., 443 U.S. at 401, 99 S.Ct. 2898 (Powell, J., concurring)). The requirement of notice continues to apply when the compelling interest asserted is protection of the defendant’s Sixth Amendment right to a fair trial by an impartial jury. United States v. Brooklier, 685 F.2d 1162, 1168 (9th Cir.1982); see also ABC, Inc. v. Stewart, 360 F.3d 90, 95 (2d Cir.2004) (noting that no notice had been provided before closure of voir dire in jury selection); In re S.C. Press Ass’n, 946 F.2d 1037, 1040 (4th Cir.1991).
The United States Supreme Court has not explicated a standard for notice. However, individual notice may be practicable under certain circumstances.
***
The requirements that must be satisfied by a court in order to overcome the qualified right of the public to access criminal trials may be divided into procedural and substantive elements. Oregonian Pub. Co. v. U.S. Dist. Court for Dist. of Or., 920 F.2d 1462, 1466 (9th Cir.1990). The “procedural prerequisites to entry of an order closing a criminal proceeding to the public [are] (1) those excluded from the proceeding must be afforded a reasonable opportunity to state their objections; and (2) the reasons supporting closure must be articulated in findings.” Brooklier, 685 F.2d at 1167–68. The substantive reasons that must be found and included in the findings are: “(1) [the] closure serves a compelling interest; (2) there is a substantial probability that, in the absence of closure, this compelling interest would be harmed; and (3) there are no alternatives to closure that would adequately protect the compelling interest.” Oregonian Pub., 920 F.2d at 1466 (citing Press-Enterprise II, 478 U.S. at 13–14, 106 S.Ct. 2735).
CompareD. Post-trial proceedings
CompareE. Appellate proceedings
CompareIV. Access to criminal court records
CompareA. In general
“With respect to the right of access to judicial documents under article I, section 4 of the Hawai‘i Constitution, the firmly embedded general policy of openness . . . also applies to the transcript of closed proceedings.” Oahu Publ’ns Inc. v. Ahn, 133 Hawai‘i 482, 506, 331 P.3d 460, 484 (2014), as corrected (Aug. 5, 2014). “[A] complete record of those parts of the proceedings closed to the public shall be kept and made available to the public for a legitimate and proper purpose following the completion of trial or disposition of the case without trial.” Id. (citing Gannett Pac. Corp. v. Richardson, 59 Haw. 224, 235, 580 P.2d 49, 57 (1978)). “‘Historically, post-trial transcript access has been granted as soon as the factors which prompted hearing closure have been resolved.’” Id.(quoting Phoenix Newspapers, Inc. v. U.S. Dist. Court for Dist. of Arizona, 156 F.3d 940, 947 (9th Cir. 1998)).
CompareB. Arrest records
CompareC. Dockets
CompareD. Warrants, wiretaps and related materials
CompareE. Discovery materials
CompareF. Pretrial motions and records
CompareG. Trial records
“With respect to the right of access to judicial documents under article I, section 4 of the Hawai‘i Constitution, the firmly embedded general policy of openness . . . also applies to the transcript of closed proceedings.” Oahu Publ’ns Inc. v. Ahn, 133 Hawai‘i 482, 506, 331 P.3d 460, 484 (2014), as corrected (Aug. 5, 2014). “[A] complete record of those parts of the proceedings closed to the public shall be kept and made available to the public for a legitimate and proper purpose following the completion of trial or disposition of the case without trial.” Id. (citing Gannett Pac. Corp. v. Richardson, 59 Haw. 224, 235, 580 P.2d 49, 57 (1978)). “‘Historically, post-trial transcript access has been granted as soon as the factors which prompted hearing closure have been resolved.’” Id.(quoting Phoenix Newspapers, Inc. v. U.S. Dist. Court for Dist. of Arizona, 156 F.3d 940, 947 (9th Cir. 1998)).“‘Historically, post-trial transcript access has been granted as soon as the factors which prompted hearing closure have been resolved.’” Id. (quoting Phoenix Newspapers, Inc. v. U.S. Dist. Court for Dist. of Arizona, 156 F.3d 940, 947 (9th Cir. 1998)).
“‘Historically, post-trial transcript access has been granted as soon as the factors which prompted hearing closure have been resolved.’” Id. (quoting Phoenix Newspapers, Inc. v. U.S. Dist. Court for Dist. of Arizona, 156 F.3d 940, 947 (9th Cir. 1998)).
CompareH. Post-trial records
CompareI. Appellate records
CompareJ. Other criminal court records issues
In Oahu Publ’ns Inc. v. Takase State, 139 Hawai‘i 236, 386 P.3d 873 (2016), the Hawai‘i Supreme Court was confronted with the issue of what should be done when “personal information has been impermissibly included in a publicly accessible court filing.” 139 Hawai‘i at 245, 386 P.3d at 882. In question was an application for judicial determination of probable cause that contained “the full name and residential address” of a minor, “as well as the full social security numbers of individuals depicted in a photographic lineup.” Id. at 239, 386 P.3d at 876. The Court emphasized the importance of “protecting the safety and security of personal identifying information and ensuring the privacy of complainants, minors, and others,” and thus, outlined that any party or person who discovers the error “must take immediate steps to effectuate the sealing of the document or of the offending content.” Id. at 246, 386 P.3d at 883. Because of the sensitive nature, “such immediacy may require the court to give notice and conduct a hearing after sealing a document.” Id. (emphasis in original). The Court also noted that “the sealing should be narrowly tailored so that those portions of the filing containing non-personal information remain in the public record.” Id.
CompareV. Access to civil proceedings
CompareA. In general
In the civil context, the Hawai‘i Supreme Court has recognized that the presumption of openness also applies to probate proceedings. “[T]he reasons underlying openness in the criminal context . . . are equally compelling in the civil context . . . . We hold, then, that third parties have a right to file petitions challenging the closure of probate court proceedings or the sealing of court records under a principle of law supplementing the probate code.” In re Estate of Campbell, 106 Hawai‘i 453, 462, 106 P.3d 1096, 1105 (2005).
CompareB. Pre-trial proceedings
CompareC. Trials
CompareD. Post-trial proceedings
CompareE. Appellate proceedings
CompareVI. Access to civil records
CompareA. In general
CompareB. Dockets
CompareC. Discovery materials
CompareD. Pre-trial motions and records
CompareE. Trial records
CompareF. Settlement records
CompareG. Post-trial records
CompareH. Appellate records
CompareI. Other civil court records issues
CompareVII. Jury and grand jury access
CompareA. Access to voir dire
CompareB. Juror identities, questionnaires and other records
CompareC. Grand jury proceedings and records
CompareD. Interviewing jurors
CompareVIII. Proceedings involving minors
CompareA. Delinquency
HRS § 571-84(g) provides in relevant part:
In all proceedings concerning violations other than traffic violations, in which a minor coming within section 571-11(1) is involved and after the termination of any proceeding under section 571-11(1) arising out of the violation, the court may disclose to a party directly concerned the disposition of a case involving an offense against a person or property. This disclosure shall be made only upon written request of the party directly concerned. If the minor has been adjudicated a law violator, the name and address of the minor, and, when practicable, the name of the parent or guardian shall be disclosed, pursuant to the order of the court or the Hawai‘i family court rules, to the parties directly concerned with the alleged violation or their duly licensed attorneys acting under written authority signed by either party. For the purpose of this section, “parties directly concerned” means any person who may sue because of death, injury, or damage resulting from any violation, other than a traffic violation, in which a minor coming within section 571-11(1) is involved.
HRS § 571-11(1) grants jurisdiction to courts “concerning any person who is alleged to have committed an act prior to achieving eighteen years of age that would constitute a violation or attempted violation of any federal, state, or local law or county ordinance.”
CompareB. Dependency
HRS § 571-84(a) provides in relevant part:
[I]n proceedings under section 571-11 and in paternity proceedings under chapter 584, the following records shall be withheld from public inspection: the court docket, petitions, complaints, motions, and other papers filed in any case; transcripts of testimony taken by the court; and findings, judgments, orders, decrees, and other papers other than social records filed in proceedings before the court.
Id. § 571-84(a).
In MR v. TR, the Intermediate Court of Appeals of Hawai‘i (“ICA”) determined that portions of a family court record pertaining directly to a determination of custody of the parties’ children “must be withheld from public inspection pursuant to HRS § 571-84.” NO. CAAP-17-0000230, 2019 WL 351209 at *5–6 (Jan. 29, 2019). The court stated that “HRS § 571-84 and other Hawai‘i statutes are intended to protect the anonymity and well-being of children that are the subject of various family court proceedings.” Id. at *4. However, the court did recognize that there is “ambiguity in the scope of the applicability of HRS § 571-84(a) in divorce actions involving child custody generally.” Id. at *5. The ICA concluded that while there is ambiguity as to the intended scope of the term, “proceedings,” “HRS § 571-84(a) is sufficiently clear to apply it to the Family Court record in this case.” Id.
CompareC. Other proceedings involving minors
HRS § 571-84(f) states, “Any police records concerning traffic accidents in which a minor . . . is involved . . . shall be available for inspection by the parties directly concerned in the accident or their duly licensed attorneys acting under written authority signed by either party.”
CompareD. Prohibitions on photographing or identifying juveniles
HRS § 571-84(d) states, “Any photograph or fingerprint taken of any minor may be used or circulated only as permitted by section 571-74.”
HRS § 571-74(a) states in relevant part:
The judges of the family courts shall make such rules and set up such standards of investigation and questioning as they consider necessary to guide and control the police, within their respective jurisdictions, in the handling of cases involving minors coming within provisions of this chapter. The rules and standards may include limitations and restrictions concerning the fingerprinting and photographing of any child in police custody, except that when any child of the age of twelve years or older who comes within section 571-11(1) is taken into custody for committing an act which, if committed by an adult would be a felony, a misdemeanor, or a petty misdemeanor any limitation or restriction concerning fingerprinting shall not apply.
CompareE. Minor testimony in non-juvenile courts
CompareIX. Special proceedings
CompareA. Tribal Courts in the jurisdiction
CompareB. Probate
The Hawai‘i Supreme Court has recognized that the presumption of openness applies to probate proceedings and records. “[T]he reasons underlying openness in the criminal context . . . are equally compelling in the civil context . . . . We hold, then, that third parties have a right to file petitions challenging the closure of probate court proceedings or the sealing of court records under a principle of law supplementing the probate code.” In re Estate of Campbell, 106 Hawai‘i 453, 462, 106 P.3d 1096, 1105 (2005).
CompareC. Competency and commitment proceedings
CompareD. Attorney and judicial discipline
CompareE. Immigration proceedings
CompareF. Other proceedings
CompareX. Restrictions on participants in litigation
CompareA. Media standing to challenge third-party gag orders
CompareB. Gag orders on the press
CompareC. Gag orders on participants
CompareD. Interviewing judges
CompareXI. Other issues
CompareA. Interests often cited in opposing a presumption of access
CompareB. Cameras and other technology in the courtroom
During a criminal case involving Honolulu police officers engaging in sexual conduct with persons selling sexual services during sting operations, Hawaii News Now (“HNN”) submitted an application for extended coverage to retain the right to full and complete coverage of the criminal proceedings. State v. Nilsawit, 139 Hawai‘i 86, 88, 384 P.3d 862, 864 (2016). After a hearing regarding HNN’s application for extended coverage, the district court denied the application citing Rules of the Supreme Court of Hawai‘i (“RSCH”) Rule 5.1(f)(3) and (5), which outlines instances in which a presumption of good cause exists for not allowing extended coverage. Id. In doing so, the court prohibited HNN from televising or publishing the faces or likenesses of the officers involved unless their faces were blurred. Id. at 89, 384 P.3d at 865. HNN appealed the decision regarding denial of application for extended coverage. Id. The Hawai‘i Supreme Court determined that RSCH Rule 5.1 f(8) and (f)(9) “does not allow further appeal” by members of the media of the administrative judge’s ruling. Id. at 93, 384 P.3d at 869 (“HNN would be precluded from seeking leave to appeal pursuant to RSCH Rule 5.1(f)(9) as it is not a party and because, . . . there is no statutory authority that would have allowed HNN to appeal to the ICA from an interlocutory order issued by the district court.”). Id. The Hawai‘i Supreme Court further stated that “HNN and the media at large are not deprived of means to obtain redress, as they may apply for a writ of prohibition and/or mandamus in challenging a trial court’s order regarding extended coverage.” Id. at 94, 384 P.3d at 870.
Compare