6th Circuit

Author

Paul McAdoo
Adams and Reese, LLP
424 Church Street, Suite 2700
Nashville, TN 37219
615-259-1037

Last updated October 31, 2019

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Open Courts Compendium

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I. Introduction: Access rights in the jurisdiction

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A. The roots of access rights

Generally, the Sixth Circuit adheres “to a policy of openness in judicial proceedings.” Applications of Nat’l Broad. Co., 828 F.2d 340, 343 (6th Cir. 1987) (citing Brown & Williamson Tobacco Corp. v. FTC, 710 F.2d 1165, 1176–81 (6th Cir. 1983)). “Openness in judicial proceedings promotes public confidence in the courts.” Id. at 347.

The Sixth Circuit has traced the roots of the rights of access back to the 19th Century when the D.C. Circuit explained that “[a]ny attempt to maintain secrecy, as to the records of this court, would seem to be inconsistent with the common understanding of what belongs to a public court of record, to which all persons have the right of access.” In re Knoxville News-Sentinel Co., 723 F.2d 470, (6th Cir. 1983) (quoting Ex Parte Drawbaugh, 2 App. D.C. 404, 407 (1894)).

Similarly, “[t]hroughout our history, the open courtroom has been a fundamental feature of the American judicial system.” Brown & Williamson, 710 F.2d at 1177. “Openness in judicial proceedings promotes public confidence in courts.” Applications of NBC, 828 F.2d at 347. The same principles that support access to court rooms also supports access to court records because “court records often provide important, sometimes the only, bases or explanations for a court’s decisions.” Brown & Williamson, 710 F.2d at 1177.

“[T]he First Amendment right of access to criminal proceedings is grounded generally in a ‘purpose of assuring freedom of communication on matters relating to the functioning of government.’” Indianapolis Star v. United States, 692 F.3d 424, 429 (6th Cir. 2012) (quoting Richmond Newspapers v. Virginia, 448 U.S. 555, 575 (1980)). This right of access extends to more than just a criminal trial, but also generally applies to other criminal proceedings, criminal records, civil proceedings, and civil records. Id. 429–30; Detroit Free Press v. Ashcroft, 303 F.3d 695 n.11 (6th Cir. 2002) (explaining that the Sixth Circuit and all other circuit courts that have addressed the issue have “agreed that the press and public have a First Amendment right to attend civil proceedings…”); Applications of NBC, 828 F.2d at 347 (“the importance of some pretrial proceedings dictates that the rule of openness not be confined to the actual trial”); Brown & Williamson, 710 F.2d at 1177–78 (“The Supreme Court’s analysis of the justifications for access to the criminal courtroom apply as well to the civil trial” and the same justifications require that access to judicial records also be subject to the First Amendment right of access).

The test for deciding if the First Amendment right of access applies to a particular proceeding or record is the “experience and logic” test: “if (1) that proceeding [or record] has ‘historically been open to the press and the general public’ and (2) ‘public access plays a significant positive role in the function of the particular process in question.’” Indianapolis Star, 692 F.3d at 429 (quoting Press-Enterprise Co. v. Superior Court, 478 US. 1, 8 (1986)). Once the First Amendment right of access attaches, it can only be overcome “where a party can show a compelling reason why certain documents or portions thereof should be sealed [and] the seal itself [is] narrowly tailored to serve that reason.” Shane Grp., Inc. v. Blue Cross Blue Shield of Mich., 825 F.3d 299, 305 (6th Cir. 2016) (citing Press-Enterprise Co. v. Superior Court, 464 U.S. 501, 509–11 (1984)).

In contrast to the First Amendment right of access that applies when the “experience and logic” test is met, “[a] common law right of access generally applies to all public records and documents, including judicial records and documents.” In re Morning Song Bird Food Litig., 831 F.3d 765, 777–78 (6th Cir. 2016) (citing Nixon v. Warner Commc’ns, Inc., 435 U.S. 589, 597 (1978)). The common law right of access “may be curtailed if, in the exercise of the court’s sound discretion, [the court] determines that non-disclosure is warranted.” United States v. Dejournett, 817 F.3d 479, 485 (6th Cir. 2016). This discretion “does not, however, imply that the District Court operates without standards.” Id. (quoting Brown & Williamson, 710 F.2d at 1177). This discretion must “be exercised in light of the relevant facts and circumstances of the particular case,” and must identify the “‘relevant facts and circumstances’ justifying non-disclosure…” in the case. Id. (quoting Brown & Williamson, 710 F.2d at 1177). For example, the common law right of access “does not reach materials properly submitted to the court under seal or otherwise kept confidential for important policy reasons.” In re Morning Song Bird Food Litig., 831 F.3d at 778 (citations omitted).

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B. Overcoming a presumption of openness

Whether access is sought under the First Amendment or the common law right of access, the party opposing disclosure bears the burden of showing compelling reasons to support confidentiality. In re Morning Song Bird Food Litig., 831 F.3d 765, 772 (6th Cir. 2016) (citations omitted). When the First Amendment right of access applies, the burden on a party seeking closure “is a heavy one: ‘[o]nly the most compelling reasons can justify non-disclosure of judicial records.’” Shane Grp., Inc. v. Blue Cross Blue Shield of Mich., 825 F.3d 299, 305 (6th Cir. 2016) (quoting In re Knoxville News-Sentinel Co., 723 F.2d 470, 476 (6th Cir. 1983)). “[T]he greater the public interest in the litigation’s subject matter, the greater the showing necessary to overcome the presumption of access. Id. at 305 (citing Brown & Williamson Tobacco Corp. v. FTC, 710 F.2d 1165, 1179 (6th Cir. 1983)). The asserted interest in closure may not be based on platitudes, speculation or conjecture, but instead must be identified with specificity. Id. at 307–08. “The proponent of sealing … must ‘analyze in detail, document by document, the propriety of secrecy, providing reasons and legal citations.’” Id. at 305–06 (quoting Baxter Int’l, Inc. v. Abbott Labs., 297 F.3d 544 548 (7th Cir. 2002)).

“The presumption of openness may be overcome only by an overriding interest based on findings that closure is essential to preserve higher values and is narrowly tailored to serve that interest.” Application of Nat’l Broad. Co., 828 F.2d 340, 343 (6th Cir. 1987) (quoting Press-Enterprise Co. v. Superior Court, 464 U.S. 501, 510 (1984)); see also Rudd Equip. Co. v. John Deere Constr. & Forestry Co., 834 F.3d 589, 593 (6th Cir. 2016) (holding that court records should only be sealed when “there is a compelling reason why certain documents or portions … should be sealed … [and] the seal itself must be narrowly tailored to serve that reason”). In the context of sealed court records, the Sixth Circuit has identified a limited category of interests that may be compelling enough to overcome the presumption of openness: (1) national security; (2) trade secrets; (3) fair trial rights of criminal defendants; (4) privacy rights of participants and third parties, especially innocent third parties; (5) privileged information; and (6) “information required by statute to be maintained in confidence.” Id. at 308 (citations omitted); Brown & Williamson, 710 F.2d at 1179.

The burden is not as great when it is the common law right of access that is being analyzed. The common law right of access “may be curtailed if, in the exercise of the court’s sound discretion, [the court] determines that non-disclosure is warranted.” United States v. Dejournett, 817 F.3d 479, 485 (6th Cir. 2016). This discretion “does not, however, imply that the District Court operates without standards.” Id. (quoting Brown & Williamson, 710 F.2d at 1177). This discretion must “be exercised in light of the relevant facts and circumstances of the particular case,” and must identify the “‘relevant facts and circumstances’ justifying non-disclosure…” in the case. Id. (quoting Brown & Williamson, 710 F.2d at 1177). Moreover, the common law right of access “does not reach materials properly submitted to the court under seal or otherwise kept confidential for important policy reasons.” In re Morning Song Bird Food Litig., 831 F.3d 765, 778 (6th Cir. 2016) (citations omitted).

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C. Procedural prerequisites to closure

When closure is sought, notice must be provided to the parties and public by promptly posting the request for closure on the docket sheet. Application of Storer Commc’ns, Inc., 828 F.2d 330, 335 (6th Cir. 1987); see also In re Knoxville News-Sentinel Co., 723 F.2d 470, 475 (6th Cir. 1983) (“[T]he most reasonable approach would be to require that motions to seal be docketed with the clerk of the district court.”). “If a party moves to seal a document or the entire court record, such a motion should be made ‘sufficiently in advance of any hearing on or disposition of the [motion to seal] to afford interested members of the public an opportunity to intervene and present their views to the court.’” In re Knoxville News-Sentinel, 723 F.2d at 476 (quoting U.S. v. Criden, 675 F.2d 550, 559 (3d Cir. 1982)). “The district court should then allow interested members of the public a reasonable opportunity to present their claims, without causing unnecessary or material delay in the underlying proceeding.” Id. (citing United States v. Brooklier, 685 F.2d 1162, 1168 (9th Cir. 1982)). But failure to follow these procedures may be cured on appeal. Id.

A district court that decides to seal judicial records “must set forth specific findings and conclusions ‘which justify nondisclosure to the public,’” even when no one objects to the closure. Shane Grp., Inc. v. Blue Cross Blue Shield of Mich., 825 F.3d 299, 306 (6th Cir. 2016) (quoting Brown & Williamson, 710 F.2d at 1176); see also Danley v. Encore Capital Grp., Inc., 680 F. App’x 394, at 399 (6th Cir. 2017) (unpublished) (reversing trial court’s order sealing documents “without ‘set[ting] forth specific findings and conclusions ‘which justify nondisclosure to the public’” (quoting Shane Grp., 825 F.3d at 306)); Goodman v. Fuller, 960 F.2d 149 (table), 1992 U.S. App. LEXIS 8270, at *2–3 (6th Cir. 1992) (unpublished) (holding that the district court cannot summarily seal court records, but instead must “present a reasoned analysis explaining why”).

But the standard is more flexible in regard to requests to seal search warrant proceeding materials. Indianapolis Star v. United States, 692 F.3d 424, 434 (6th Cir. 2012). “[B]ecause time is of the essence in search warrant proceedings, to satisfy [the] articulation requirement in relation to search warrant documents, ‘the judicial officer may explicitly adopt the facts that the government presents to justify sealing when the evidence appears credible.’” Id. (quoting Baltimore Sun Co. v. Goetz, 886 F.2d 60, 65 (4th Cir. 1989)). Moreover, at least in the context of search warrant materials, “because the articulation requirement exists only to aid reviewing courts rather than for the benefit of the public, reversal on this basis is appropriate only where a sealing court’s deficient articulation of its decision impeded review.” Id. (citing Media Gen. Operations, Inc. v. Buchanan, 417 F.3d 424, 431 (4th Cir. 2005)).

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

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A. Media standing to challenge closure

“[M]edia organizations may move to intervene for the purpose of contesting closure of hearings and the sealing of documents.” Application of Storer Commc’ns, Inc., 828 F.2d 330, 335 (6th Cir. 1987) (citing United States v. Criden, 675 F.2d 550, 555, 559 (3d Cir. 1982)). Moreover, “persons present in open court have a right to be heard on the question of their exclusion.” In re Knoxville News-Sentinel Co., 723 F.2d 470, 475 (6th Cir. 1983). This rule would even apply where the request for closure was not made in open court, but instead in chambers or in a written motion filed under seal. Id. In that sort of situation “reasonable steps [to] be taken to afford the public and press an opportunity to submit their views on the question of their exclusion before a closure motion is acted upon” should be taken. Id. (citations omitted).

But, in a case challenging a broad gag order on litigation participants, the Sixth Circuit has rejected a requirement that the press be given notice and an opportunity to be heard before a judge may “enter a restrictive order impinging upon rights protected by the First Amendment.” CBS, Inc. v. Young, 522 F.2d 234, 241 n.2 (6th Cir. 1975).

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B. Procedure for requesting access in criminal cases

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C. Procedure for requesting access in civil matters

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D. Obtaining review of initial court decisions

When a court denies access to judicial proceedings or records, appellate review is proper under the “collateral order doctrine.” Application of Nat’l Broad. Co., 828 F.2d 340, 343 (6th Cir. 1987) (citing Application of The Herald Co., 734 F.2d 93, 96 (2d Cir. 1984)); see also In re Siler, 571 F.3d 604, 608–09 (6th Cir. 2009) (explaining in the context of a request for access to presentence reports that an appeal of an order is the proper method for seeking review, not a writ of mandamus). The collateral order doctrine applies both ways: whether you are seeking to unseal or seal judicial records. Rudd Equip. Co. v. John Deere Constr. & Forestry Co., 834 F.3d 589, 592 (6th Cir. 2016); see also In re FCA US LLC Monostable Elec. Gearshift Litig., No. 19-1516, 2019 U.S. App. LEXIS 14322, at *1 (6th Cir. May 14, 2019) (same) (order).

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III. Access to criminal proceedings

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A. In general

“Courts should operate in the open, except where closed hearings are essential to guarantee a fair trial or to protect the integrity of the judicial process.” Application of Storer Commc’ns, Inc., 828 F.2d 330, 333 (6th Cir. 1987). “Under the First Amendment, the public and the press enjoy a right of access to criminal trials.” Indianapolis Star v. United States, 692 F.3d 424,429 (6th Cir. 2012) (citing Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555 (1980)). This right of access “is grounded generally in a ‘purpose of assuring freedom of communication on matters relating to the functioning of government.’” Id. (citations omitted). “This right is not limited to the trial itself but can apply to other criminal proceedings and records.” Id. (citing Press-Enterprise Co. v. Superior Court, 478 U.S. 1 (1986)). This right of access includes preliminary proceedings like “voir dire examinations of potential jurors.” In re Petitions of Memphis Publ’g Co., 887 F.2d 646, 648 (6th Cir. 1989).

“Motions for closure of criminal proceedings, both before and during the trial, must be posted promptly on the docket sheet, thus giving notice to the public. When such motions are posted, media organizations may move to intervene for the purpose of contesting closure of hearings and the sealing of documents.” Application of Storer Commc’ns, Inc., 828 F.2d at 333 (citing United States v. Criden, 675 F.2d 550, 555, 559 (3d Cir. 1982)). “The presumption of openness may be overcome only by an overriding interest based on findings that closure is essential to preserve higher values and is narrowly tailored to serve that interest.” Application of Nat’l Broad. Co., 828 F.2d 340, 343 (6th Cir. 1987) (quoting Press-Enterprise Co. v. Superior Court, 464 U.S. 501, 510 (1984)).

In an unpublished opinion, the Sixth Circuit has upheld, as part of a civil right suit against the local sheriff, the removal of a spectator from the courtroom during a criminal trial for “disruptive” behavior. Leisure v. Karnes, 25 F.App’x 285, 286–87 (6th Cir. 2001) (unpublished). The Court explained that the right of access to criminal trials “is not without exception, as a judge has the overriding authority to maintain dignity in the courtroom and may order such persons removed who disrupt the proceedings.” Id. at 287 (citations omitted). The individual was escorted from the courtroom after the judge “informed [her] that she was welcome to stay in the courtroom if she would stop her distracting gestures and behavior, but [the individual] became argumentative, refused to listen to [the judge], and denied that she had done anything wrong.” Id.

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B. Pretrial proceedings

“The Supreme Court has recognized that the importance of some pretrial proceedings dictates that the rule of openness not be confined to the actual trial.” Indianapolis Star v. United States, 828 F.2d 340, 347 (6th Cir. 1987). The First Amendment right of access includes, among other things, “the proceedings for the voir dire examinations of potential jurors.” In re Petitions of Memphis Publ’g Co., 887 F.2d 646, 648 (6th Cir. 1989).

In In re Petitions of Memphis Publishing Co., the court addressed whether the use of a sound machine to shield voir dire from the public, including the press, in a case with “mammoth pretrial publicity,” was proper. The media intervened to challenge the use and to open the voir dire process. Id. at 647. The district court held that the constitutional right of the defendant to a fair trial justified closing voir dire, but did state that a transcript of voir dire would be available after jury selection was completed. Id. at 647–48. Relying upon Press-Enterprise I and II, the circuit court reversed, holding “that the naked assertion by the district court in this case that defendant’s Sixth Amendment right to a fair trial ‘might well be undermined’ without any specific finding of fact to support that conclusion, was insufficient to justify closure…” Id. at 648.

Judicial recusal proceedings and records have also been found to be historically open, and public access to such proceedings have been found to “play ‘a significant positive role’ in such proceedings.” Application of Nat’l Broad. Co., 828 F.2d 340, 344-45 (6th Cir. 1987) (citing U.S. v. Chagra, 701 F.2d 354, 363 (5th Cir. 1983)).

If materials are sought to be examined in camera, such as the practice of submitting Brady or Giglio materials to a judge for a determination of whether they must be furnished to the defense, the proper means for doing so is not an ex parte hearing, but instead to give notice to defense counsel and the public of the in camera proceedings so that there is an opportunity to argue for an open hearing. Application of Storer Commc’ns, Inc., 828 F.2d 330, 335 (6th Cir. 1987). “[W]hen a prosecutor presents material to the courts for a Brady determination, the court has an obligation to examine the material in camera and determine whether disclosure to the defense is required.” Id. (citing U.S. v. Dupuy, 760 F.2d 1492, 1504 (9th Cir. 1985) (Ferguson, J., concurring)). “Ex parte proceedings, particularly in criminal cases, are contrary to the most basic concepts of American justice and should not be permitted except possibly in most extraordinary cases involving national security.” Id.

In a habeas proceeding challenging the refusal of the court to close a state court pretrial suppression hearing, the Sixth Circuit found no constitutional violations where “extensive pretrial publicity already existed” because the criminal defendant did not show that an open courtroom would “threaten ‘higher values.’” Jackson v. Turner, 1998 U.S. App. LEXIS 27653, at *13–15 (6th Cir. 1998). “Petitioner cannot merely assert prejudice; he must prove it.” Id. at *15 (citations omitted). “The district court correctly found that any potential prejudice was ameliorated by the change of venue and by vigilance at voir dire.” Id. at *17 (citation omitted).

The Sixth Circuit has also favorably cited to application of the Richmond Newspapers “experience and logic” test for “pretrial suppression, due process and entrapment hearings” by the Third Circuit in a criminal case. Detroit Free Press v. Ashcroft, 303 F.3d 681, 695 (6th Cir. 2002) (citing United States v. Criden, 675 F.2d 550, 554 (3d Cir. 1982)); see also Indianapolis Star v. United States, 692 F.3d 424, 429 (6th Cir. 2012) (discussing application of the “experience and logic” test to “preliminary hearings, voir dire examinations of prospective jurors, plea hearings, suppressions hearings, and sentencing proceedings”) (citations omitted).

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C. Criminal trials

It is unquestioned that the First Amendment right of access applies to criminal trials. Brown & Williamson Tobacco Corp. v. FTC, 710 F.2d 1165, 1178 (6th Cir. 1983) (discussing Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555 (1980)). “The presumption of openness may be overcome only by an overriding interest based on findings that closure is essential to preserve higher values and is narrowly tailored to serve that interest.” Application of Nat’l Broad. Co., 828 F.2d 340, 343 (6th Cir. 1987) (quoting Press-Enterprise Co. v. Superior Court, 464 U.S. 501, 510 (1984)).

In a habeas proceeding, the Sixth Circuit in Kelly v. Withrow, 25 F.3d 363 (6th Cir. 1994), found that the state trial court’s denial of a change of venue request did not violate the criminal defendant’s right to a fair trial. In that case, “[t]here was a great deal of media coverage surrounding th[e] case.” Id. at 367. Because of the extensive publicity, “the trial judge took particular pains in dealing with pretrial publicity during voir dire” including asking “each prospective juror about his or her acquaintance with the case,” with additional questions being asked of those who were familiar with at least some of the facts of the case. Id. at 368. Finally, for those jurors who had formed any opinion about the case, “the trial judge exacted an assurance that the person could set his or her opinion aside and decide the case based solely on the evidence and jury instructions.” Id. “A total of forty-four prospective jurors were excused for cause, and each side used all of its peremptory challenges: fifteen by the prosecution and twenty by the defense.” Id.

The Sixth Circuit noted that “[d]ue process does not require that a jury be totally ignorant of the case.” Id. “While there may be some cases in which the Court has held that a trial was ‘utterly corrupted by press coverage,’ thus not requiring any showing of actual prejudice, the circumstances in this case do not rise to the level necessary to create the ‘carnival atmosphere’” necessary to show actual prejudice to the criminal defendant. Id. at 369.

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D. Post-trial proceedings

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E. Appellate proceedings

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IV. Access to criminal court records

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A. In general

“The public has the constitutional right to access records in criminal proceedings.” United States v. Dejournett, 817 F.3d 479, 481 (6th Cir. 2016). Consistent with Press-Enterprise II, the Sixth Circuit has explained that both judicial proceedings and records “cannot be closed unless specific, on the record findings are made demonstrating that ‘closure is essential to preserve higher values and is narrowly tailored to serve that interest.’” Application of Nat’l Broad. Co., 828 F.2d 340, 344 (6th Cir. 1987) (quoting Press-Enterprise Co v. Superior Court, 478 U.S. 1, 10 (1986) (“Press-Enterprise II”)); see also Dejournett, 817 F.3d at 481 (holding that the right of access to criminal court records “is not absolute and may be abridged if the district court finds that nondisclosure is narrowly tailored to serve an overriding interest”). Mere parroting of this standard is insufficient as the Sixth Circuit has rejected findings by a district court where the language from Press-Enterprise II is used in a conclusory manner. Application of Nat’l Broad. Co., 828 F.2d at 346. Rather, a court must “make ‘specific findings … demonstrating that’ there was a substantial probability that the defendants’ right to a fair trial would be prejudiced by further publicity and that reasonable alternatives to closure cannot adequately protect that right.” Id. (quoting Press-Enterprise II, 478 U.S. at 14) (emphasis added by the court). Moreover, “[t]he interest [justifying closure] is to be articulated along with findings specific enough that a reviewing court can determine whether the closure order was properly entered.” Dejournett, 817 F.3d at 484 (quoting Press-Enterprise Co. v. Superior Court, 464 U.S. 501, 510 (1984)).

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B. Arrest records

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C. Dockets

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The Sixth Circuit applies the “experience and logic” test when deciding if there is a First Amendment right of access to search warrants and related materials. Indianapolis Star v. United States, 692 F.3d 424, 429–30 (6th Cir. 2012).

On the experience prong, the court explained that “[i]t is indisputable that proceedings for the issuance of search warrants are not, and have not been, public.” Id. at 430. Along the same lines, “any documents filed in connection with the application process, are also, by necessity, submitted confidentially.” Id. Recognizing this, the newspapers in the Indianapolis Star case argued “that a First Amendment right of access to such documents attaches not upon their filing but rather only after the related search is executed.” Id. But the court found that even after search warrants are executed, the search warrant and related documents have not been “historically … made open to the press and public.” Id. This was despite the fact that search warrant documents are “routinely filed without seal” once they are returned to the clerk. Id.

The court also found that the logic prong did not support a finding of a First Amendment right of access to documents filed in search warrant matters. Id. at 431–32. The parties in the Indianapolis Star case agreed that “public access to search warrant documents prior to the execution of a search would harm criminal investigations by enabling criminal suspects to learn of impending searches and by potentially leading them to remove or destroy evidence.” Id. at 432. And even after the search warrant is executed, the court found that there would likely be harm to the criminal investigation from the release of search warrant materials. Id. The interests in disclosure posited by the newspapers were found to be outweighed by these threats to the criminal investigations, and, therefore, the logic prong also did not support a finding of a First Amendment right of access to documents filed in search warrant proceedings, including dockets sheets. Id. at 432–33.

The Court did recognized that the common law right of access attaches to search warrant documents filed with courts, but in that case, the trial court’s discretion to seal the requested documents was not abused. Id. at 431. Under the common law right of access, release “may occur … only if the district court in its discretion, as supervisor of its own records and files, finds that the public’s right to know outweighs interests of privacy in sealing a particular document.” Id. at 433 (citing United States v. Beckham, 789 F.2d 401, 409 (6th Cir. 1986)).

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E. Discovery materials

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F. Pretrial motions and records

Due to the importance of pretrial proceedings, the First Amendment right of access is not “confined to the actual trial.” Application of Nat’l Broad. Co., 828 F.2d 340, 348 (6th Cir. 1987). The Sixth Circuit has specifically found that judicial recusal proceedings and records have been found to be historically open and public access to such proceedings have been found to “play ‘a significant positive role’ in such proceedings.” Id. at 344–45 (citing United States v. Chagra, 701 F.2d 354, 363 (5th Cir. 1983)). The same is true for a “motion for inquiry into attorney conflicts in interest” pursuant to Federal Rule of Criminal Procedure 44(c). Id. at 345. As a result, there is a qualified First Amendment right of access to judicial recusal records and motions for attorney conflicts of interest. Id.

Similarly, the Sixth Circuit found there was a qualified First Amendment right of access to records submitted to a judge as part of an ex parte hearing that, at least in part, were submitted to induce the judge to consider recusal, except the grand jury transcripts provided, which were “totally irrelevant” to the hearing. Application of Storer Commc’ns, Inc., 828 F.2d 330, 336 (6th Cir. 1987).

The Sixth Circuit has also favorably cited to application of the Richmond Newspapers “experience and logic” test for “transcripts of sidebars or chambers conferences concerning evidentiary rulings” by the Third Circuit in a criminal case. Detroit Free Press v. Ashcroft, 303 F.3d 681, 695 (6th Cir. 2002) (citing United States v. Smith, 787 F.2d 111, 116 (3d Cir. 1986)).

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G. Trial records

Presentence reports fall “outside the scope of both the First Amendment and the common law rights of access.” In re Morning Song Bird Food Litig., 831 F.3d 765, 773 (6th Cir. 2016) (citations omitted); see also In re Siler, 571 F.3d 604 (6th Cir. 2009) (holding that presentence reports are both not retained by courts, but instead are the custody of the U.S. Probation Office and not subject to the common law right of access to court records). In order to obtain access to a presentence report, the party seeking access “must make a showing of ‘special need’ to obtain the document.” Id. (citing U.S. Dep’t of Justice v. Julian, 486 U.S. 1, 12 (1988)). This same rule applies to objections to the presentence report. Id.

In a pair of cases, In re Post-Newsweek Stations, MI, Inc., 722 F.2d 325, 327 (6th Cir. 1983) and United States v. Beckham, 789 F.2d 401, 403 (6th Cir. 1986), the media sought contemporaneous access “to copy tape-recordings that were admitted as evidence in a criminal trial, transcripts of these tape-recordings that were used by the jury, and documentary exhibits” under both the First Amendment and common law rights of access. The requested tapes had been played in open court and the transcripts, while provided to the jury, were not considered evidence in the case. Beckham, 789 F.2d at 403.

Initially, the media requested a writ of mandamus to compel “either a decision from the district court on their application for immediate access to inspect and copy audio- and videotapes admitted into evidence or used in an ongoing criminal trial, or a stay in the criminal proceedings until a decision was rendered.” In re Post-Newsweek, 722 F.2d at 327. In the initial appellate proceeding, the court found that that case was “not ripe for adjudication.” Id. at 328.

In Beckham, however, the court addressed the media’s constitutional and common law claims of contemporaneous access to copy the requested trial materials. 789 F.2d at 405. The court rejected the media’s constitutional arguments in favor of copying the requested trial materials, holding that “there is a difference between an opportunity to hear the tapes and access to the tapes themselves.” Id. at 409.

Relying upon Nixon v. Warren Communications, 435 U.S. 589 (1978), the court explained that when evaluating access under the common law right, the court must weigh “the interests advanced by the parties in light of the public interest and the duty of the court.” Beckham, 789 F.2d at 409 (citing Warren Commc’ns, 435 U.S. 602). There is a presumption in favor of access and there are multiple factors that a court should consider: (1) “a sensitive appreciation of the circumstances that led to their production;” (2) “the court’s supervisory powers;” (3) “the amount of benefit to the public from the incremental gain in knowledge that would result from hearing the tapes themselves;” (4) the degree of danger to the defendants or persons speaking on the tapes;” (5) “the possibility of improper motives on the part of the media such as promoting public scandal or gratifying private spite;” and (6) “any special circumstances in the particular case.” Id. (citations omitted). The balancing is a totality of the circumstances test. Id. In regard to the copying of the tapes and related transcripts, the court found that the district court properly applied the balancing test, taking into account all of the relevant facts and found that the trial court had not abused its discretion, especially since the media had access to the courtroom itself for the trials. Id. at 410–12.

The court, however, reached a different conclusion on the district court’s decision to permit inspection of documentary exhibits from the trial, but not to permit copying of them. Id. at 412. Because there were no substantial factors for the district court’s ruling, the court found that not permitting copying “was an unwarranted infringement on the common-law right to inspect and copy.” Id.

The court also clarified that “when the right to inspect and copy judicial records is equivalent to the right to learn the facts on the record, the fundamental right to know is at stake, and consequently, the trial court’s discretion must be narrowly restricted. However, when the right to make copies of tapes played in open court is essentially a request for a duplicate of information already made available to the public and the media, then the district court has far more discretion in balancing the factors. We do not believe a fundamental right is implicated as long as there is full access to the information and full freedom to publish.” Id. at 414–15.

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H. Post-trial records

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I. Appellate records

When the record is transmitted to the appellate court, it should not be sent entirely under seal, but instead “[s]ealed materials should be segregated and clearly identified when transmitting a record to the court of appeals.” Application of Storer Commc’ns, Inc., 828 F.2d 330, 333 (6th Cir. 1987).

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J. Other criminal court records issues

The Sixth Circuit has rejected a district court’s blanket sealing of all plea agreements under both the First Amendment and common law rights of access. United States v. Dejournett, 817 F.3d 479, 485 (6th Cir. 2016). In fact, the Sixth Circuit explained that “plea agreements are the quintessential judicial record, entitled to the protection of the First Amendment right to public access of judicial records.” Id. (citations omitted). As such, “[t]he public may be prevented from accessing plea agreements ‘only by an overriding interest based on findings that closure is essential to preserve higher values and is narrowly tailored to serve that interest.’” Id. (quoting Press-Enterprise Co v. Superior Court, 464 U.S. 501, 510 (1984)). It was patently insufficient to argue that “the court’s blanket policy is ‘rationally related’ to privacy interests of criminal defendants.” Id.

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V. Access to civil proceedings

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A. In general

The Sixth Circuit, on multiple occasions, has noted that the First Amendment right of access generally attaches to civil proceedings. For example, in Brown & Williamson Tobacco Corp. v. FTC, the court explained that “[t]he historical support for access to criminal trials applies in equal measure to civil trials.” 710 F.2d 1165, 1178 (6th Cir. 1983) (citing Gannett Co. v. DePasquale, 443 U.S. 368, 386 (1979)). Similarly, the court has explained that

[t]he Supreme Court has not yet had occasion to address whether there is a First Amendment right to attend civil proceedings, but a number of circuits, including ours in Brown & Williamson, have addressed the issue. All have agreed the governing test is the two-part Richmond Newspapers test and have further agreed that the press and public have a First Amendment right to attend civil proceedings under that test.

Detroit Free Press v. Ashcroft, 303 F.3d 681, 695 n.11 (6th Cir. 2002) (citations omitted).

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B. Pre-trial proceedings

While the Sixth Circuit has noted generally that the First Amendment right of access applies to civil proceedings, Detroit Free Press v. Ashcroft, 303 F.3d 681, 695 n.11 (6th Cir. 2002) (citations omitted), it has found that the qualified First Amendment right of access does not attach to summary jury trials. In re Cincinnati Enquirer, 94 F.3d 198, 199(6th Cir. 1996); Cincinnati Gas & Elec. Co. v. Gen. Elec. Co., 854 F.2d 900, 905 (6th Cir. 1988). “The summary jury trial is a device that is designed to settle disputes,” and like other types of settlement techniques “have historically been closed to the press and public.” Cincinnati Gas, 854 F.2d at 903 (citations omitted). And, public access to these settlement proceedings would undermine the governmental interest in promoting settlement of cases because “where a party has a legitimate interest in confidentiality, public access would be detrimental to the effectiveness of the summary jury trial in facilitating settlement.” Id. at 904.

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C. Trials

[t]he Supreme Court has not yet had occasion to address whether there is a First Amendment right to attend civil proceedings, but a number of circuits, including ours in Brown & Williamson, have addressed the issues. All have agreed the governing test is the two-part Richmond Newspapers test and have further agreed that the press and public have a First Amendment right to attend civil proceedings under that test.

Detroit Free Press v. Ashcroft, 303 F.3d 681, 695 n.11 (6th Cir. 2002) (citations omitted).

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D. Post-trial proceedings

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E. Appellate proceedings

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VI. Access to civil records

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A. In general

“The open records doctrine is premised on allowing the public to inspect judicial records to increase public confidence in and understanding of the judicial system, and diminish the possibility of injustice, incompetence, perjury, and fraud.” Signature Mgmt. Team, LLC, v. Doe, 876 F.3d 831, 837 (6th Cir. 2017) (citations omitted). Consistent with this principle, the Sixth Circuit has taken a firm stance that sealing court records requires much more than just the agreement of the parties. “Only the most compelling reasons can justify non-disclosure of judicial records.” In re Knoxville News-Sentinel Co., 723 F.2d 470, 476 (6th Cir. 1983) (citations omitted). The court has even gone so far as to raise the issue sua sponte on at least three occasions. In re Nat’l Prescription Opiate Litig., 2019 U.S. App. LEXIS 18502, at *42 (6th Cir. 2019); Beauchamp v. Fed. Home Loan Mortg. Corp., 658 F.App’x 202, 207 (6th Cir. 2016) (unpublished); Brown & Williamson Tobacco Corp. v. FTC, 710 F.2d 1165, 1176 (6th Cir. 1983).

In 2016 and 2017, the Sixth Circuit issued multiple decisions that emphasized the high standards that must be set when deciding whether to seal judicial records. The court’s decision in Shane Group v. Blue Cross Blue Shield, 825 F.3d 299 (6th Cir. 2016), exemplifies these cases.

In Shane Group, the Court addressed the difference between protective orders during discovery and sealing judicial records: “there is a stark difference between so-called ‘protective orders’ entered pursuant to the discovery provisions of Federal Rule of Civil Procedure 26, on the one hand, and orders to sealed court records, on the other. … ‘Secrecy is fine at the discovery stage, before the material enters the judicial record.’” 825 F.3d at 305 (quoting Baxter Int’l Inc. v. Abbott Labs., 297 F.3d 544, 545 (7th Cir. 2002). But the calculus changes “when the parties place material in the court record.” Id. (citing Baxter, 297 F.3d at 545). The standard for sealing is “vastly more demanding” than Rule 26’s good cause standard for protective orders. Id. at 307.

The reason documents in the court record are different than those exchanged between parties is because “the public has a strong interest in obtaining the information in the court record.” Id. at 305 (citing Brown & Williamson, 710 F.2d at 1180). This public interest has multiple justifications. First, the public has an interest in the result of litigation. Id. (citing Brown & Williamson, 710 F.2d at 1179). Second, the public may be interested in both the result and “the conduct giving rise to the case” because “‘secrecy insulates the participants, masking impropriety, obscuring incompetence, and concealing corruption.’” Id. (citing Brown & Williamson, 710 F.2d at 1179). And, finally, “the public is entitled to assess for itself the merits of judicial decisions,” which it can only do if it has access to information, including judicial records relied upon by the court in making its decisions. Id. (citing Brown & Williamson, 710 F.2d at 1181).

Judicial records are presumptively open and the party seeking closure must overcome the presumption in favor of openness and this burden “is a heavy one.” Id. (citations omitted). “‘Only the most compelling reasons can justify non-disclosure of judicial records.’” Id. (quoting In re Knoxville News-Sentinel Co., 723 F.2d 470, 476 (6th Cir. 1983)). This burden grows with the public interest in the litigation: “the greater the public interest in the litigation’s subject matter, the greater the showing necessary to overcome the presumption of access.” Id. (citing Brown & Williamson, 710 F.2d at 1179). The court held that in class action cases, for example, the standards for sealing court records “‘should be applied … with particular strictness.’” Id. (quoting In re Cendant Corp., 260 F.3d 183, 194 (3d. Cir. 2001)).

Those seeking closure of court records must do more than broadly allege a harm or interest to justify the relief they seek. “The proponent of sealing ... must ‘analyze in detail, document by document, the propriety of secrecy, providing reasons and legal citations.’” Id. at 305–06 (quoting Baxter, 297 F.3d at 548). Mere platitudes are patently insufficient to justify closure, instead, a proponent of sealing must show with specificity “that ‘disclosure will work a clearly defined and serious injury[.]’” Id. at 308.

Similarly, “a district court that chooses to seal court records must set forth specific findings and conclusions ‘which justify nondisclosure to the public,’” even if the parties agree on the requested sealing and no one is advocating for access. Id. at 306 (quoting Brown & Williamson, 710 F.2d at 1176). A court’s reasoning in favor of closure should include “why the interests in support of nondisclosure are compelling, why the interests supporting access are less so, and why the seal itself is no broader than necessary…” Id. (citing Brown & Williamson, 710 F.2d at 1176); see also In re S. Ohio Corr. Facility, 24 F. App’x 520 (6th Cir. 2001) (“Iit is important that the reviewing court be given a basis for determining whether the closure order is essential to preservation of the interest articulated by the district court … and is ‘narrowly tailored to serve that interest.’” (quoting Press-Enterprise Co. v. Superior Court, 478 U.S. 1, 9 (1986))). Failure to do so, by itself, is sufficient for the Sixth Circuit to vacate the sealing order. Shane Grp., 825 F.3d at 306 (citing Brown & Williamson, 710 F.2d at 1176). Even when there are compelling interests sufficiently compelling to overcome the heavy presumption in favor of access, closure orders must be narrowly tailored to serve that justification for closure. Id. at 305 (citing Press-Enterprise Co. v. Superior Court, 464 U.S. 501, 509–11 (1984).

Where there is a finding of a compelling interest, the court will still balance that interest against the public interest in access to the documents. For example, in a recent unpublished opinion, the court explained that while a finding that what is sought to be sealed is a trade secret will generally be sufficient to carry the party’s burden, “even if a district court finds that a trade secret exists, it must still determine whether public interest outweighs the moving party’s interests in protecting their trade secret.” Kondash v. Kia Motors Am., Inc., 767 F. App’x 635, 638 (6th Cir. 2019). And “[t]he presumption in favor of public access is strong when public safety is implicated.” Id. at 637; see also id. (“the interests of public safety will often outweigh any confidentiality interests that might be implicated” (quoting NHSTA Enforcement Guidance Bulletin 2015-01: Recommended Best Practices for Protective Orders and Settlement Agreements in Civil Litigation, 81 Fed. Reg. 13026-02, 13027 (March 11, 2016))). This strong public interest in favor of access is buttressed even further when it is part of a class action case. Id. at *5–6 (citations omitted).

The Sixth Circuit has also held that seeking access to sealed court records is not “the kind of argument that can be waived.” Shane Grp., 825 F.3d at 307; see also Rudd Equip. Co. v. John Deere Constr. & Forestry Co., 834 F.3d 589 (6th Cir. 2016) (rejecting a waiver argument raised by the proponent of sealing); but see Meyer Goldberg Inc. v. Fisher Foods, 823 F2d 159 (6th Cir. 1987) (explaining that permissive intervention under Federal Rule of Civil Procedure 24(b) must be timely).

The Sixth Circuit has noted that the presumption of openness applies to a broad swath of court records, including “pleadings, motions for class certification, evidentiary motions, and exhibits accompanying the parties’ filings,” among others. In re Nat’l Prescription Opiate Litig., 2019 U.S. App. LEXIS, at *43 (6th Cir. 2019) (citing Shane Grp., 825 F3d at 304–05).

But, the court has held in an unpublished opinion that “contemporaneous and immediate access to court records” is not mandated by the First Amendment “absent a case-by-case finding of a compelling state interest using narrowly tailored means.” Barth v. City of Macedonia, 187 F.3d 634 (table), 1999 U.S. App. LEXIS 13653, at *3 (6th Cir. 1999) (unpublished). Rather, “content neutral restrictions on access to court records” are valid “if ‘it furthers an important or substantial governmental interest; if the government interest is unrelated to the suppression of free expression; and if the incidental restriction … is not greater than is essential to the furtherance of that interest.’” Id. at *3–4 (quoting United States v. O’Brien, 391 U.S. 367, 377 (1968)). The governmental interest in that case was “to protect privileged and inappropriate court documents from publication.” Id. at *4. Based on this asserted governmental interest, the court found that the city’s twenty-four hour delay in producing the requested court records was constitutional. Id. at *4–5.

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B. Dockets

The Sixth Circuit has held that sealing of a civil court docket is subject to the same First Amendment right of access as other civil court records. Rudd v. John Deere Constr. & Forestry Co., 834 F.3d 589, 593 (6th Cir. 2016); see also Tri-County Wholesale Distribs. V. Wine Grp., Inc., 565 F. App’x 477, 489 (6th Cir. 2012) (Gwin, J., concurring and dissenting in part) (“constitutional standards apply not only to courtroom proceedings, but to dockets, pleadings, and documents attached to pleadings” (citations omitted)).

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C. Discovery materials

The Sixth Circuit has drawn a line between discovery materials and documents filed with the court, explaining that “‘[s]ecrecy is fine at the discovery stage before the material enters the judicial record,’” but that secrecy is much more stringently examined once documents are filed with the court. Shane Grp. Inc. v. Blue Cross Blue Shield of Mich., 825 F.3d 299, 305 (6th Cir. 2016) (quoting Baxter Int’l, Inc. v. Abbott Labs., 297 F.3d 544, 545 (7th Cir. 2002). But even at the discovery stage, “good cause” must be found by the court to justify preventing the disclosure of discovery. In re Nat’l Prescription Opiate Litig., 2019 U.S. App. LEXIS, at *23 (6th Cir. 2019).

When evaluating “good cause” that would bar release of discovery materials, courts must “balance the interests in favor of disclosure against the interest in favor of nondisclosure.” Id. While there is not the same strong presumption in favor of disclosure that is applicable to questions on sealing court records, the burden is still on the party seeking to restrict access. Id. at *20, 26 n.8.

In 2019, the Sixth Circuit found that a district court abused its discretion in prophylactically barring 1,300 public entities from disclosing the contents of a DEA opioid database they received during discovery. Id. at *13, *23. The court weighed the alleged risks to the businesses whose information were contained in the database and the asserted risk to the DEA’s criminal investigations (many of the alleged risks were vague and far from particularized) against the “insight” access to the database “will provide into the opioid epidemic” if the database was publicly accessible. Id. at *40.

The Sixth Circuit also found that access to discovery was warranted in Krause v. Rhodes, 671 F.2d 212 (6th Cir. 1982), where the court addressed public access to discovery materials in the civil suits stemming from the May 4, 1970, Kent State shootings, but only after the trials had been completed. The discovery in that case “was to be open, broad and far-reaching,” but not necessarily open to the public. Id. at 214. The district court even went so far as to permit the parties to have access to related grand jury testimony transcripts during discovery. Id.

In post-trial orders, the district court required the return of many materials to their owners, including federal and state grand jury transcripts, so as to keep them from the public, but denied requests for similar treatment to various state governmental records, with the exception that the names of witnesses, interviewing officers, and third parties be redacted. Id. at 216–17. The district court based its ruling on the “First Amendment interests and the historic nature of the events portrayed in the materials concerned.” Id. at 217. The Sixth Circuit noted that the case involved “emanations from the First Amendment such as the public’s right to know and legitimate concern about the accurate recordation of important historical events,” but that there were legitimate privacy and governmental concerns. Id. The Sixth Circuit held that the district court did not abuse its discretion and its “orders were drafted with careful recognition of the competing interests, and … scrupulously followed the applicable law.” Id. at 219.

Moreover, the Sixth Circuit has also said in the context of reviewing an access to discovery material issue that “[a]s a general proposition, pretrial discovery must take place in the public unless compelling reasons exist for denying the public access to the proceedings.” Meyer Goldberg, Inc. v. Fisher Foods, 823 F.2d 159, (6th Cir. 1987) (quoting Am. Tel. & Tel. Co. Grady, 594 F.2d 594, 596 (7th Cir. 1978)). In the Meyer Goldberg case, the court discussed the standard to be used when a non-party intervenes to modify a protective order:

Given that proceedings should normally take place in public, imposing a good cause requirement on the party seeking modification of a protective order is unwarranted. If access to protected fruits can be granted without harm to legitimate secrecy interests, or if no such interests exist, continued judicial protection cannot be justified. In that case, access should be granted even if the need for the protected materials is minimal. When that is not the case, the court should require the party seeking modification to show why the secrecy interests deserve less protection than they did when the order was granted. Even then, however, the movant should not be saddled with a burden more onerous than explaining why his need for the materials outweighs existing privacy concerns.

Id. at 163 (quoting In re “Agent Orange” Prod. Liab. Litig., 104 F.R.D. 559, 570 (E.D.N.Y. 1985). In reviewing a request to modify a protective order, the abuse of discretion standard is applied. Id. at 161.

But, in Courier-Journal v. Marshall, 828 F.2d 361 (6th Cir. 1987), the Sixth Circuit rejected a request from the media to compel access to “specified fruits of discovery” upon which a protective order limiting access had been entered. Id. at 362. The information sought by the media related to membership in the local Ku Klux Klan, which was reported to include many local law enforcement officers, but the material was “a marginal issue” in the underlying civil litigation. Id. at 362, 367. Relying upon Seattle Times Co. v. Rhinehart, 467 U.S. 20 (1984), the court held that it must “consider whether the ‘practice in question [furthers] an important or substantial governmental interest unrelated to the suppression of expression’ and whether ‘the limitation of First Amendment freedoms [is] no greater than necessary or essential to the protection of the particular governmental interest involved.” Courier-Journal, 828 F.2d at 364 (quoting Seattle Times Co., 467 U.S. at 32). In Courier Journal Co., the court saw the governmental interests as being the interest in permitting discovery by the litigants “to vindicate their rights” “while protecting individuals who may once have joined the Ku Klux Klan (but who have no discoverable connection with the [] case) from ostracism and retaliation based on past political associations.” Id. In contrast, the press’s interest was “to obtain and to publicize information of great public interest that is produced by the adjudicative process.” Id. at 364. The question was “whether [the protective orders] were ‘no greater than necessary or essential’ to permit the [civil litigants] to obtain the membership list without exposing the affiliation of those whose names appear on it.” Id. at 364-65. The Sixth Circuit rejected the media’s request and found that the district court had properly balanced “the very limited right of access the press has to presumptively nonpublic fruits of civil discovery against the rights of civil rights plaintiffs to obtain discovery of a Ku Klux Klan membership list over a claimed privilege based on [F]irst [A]mendment associational rights.” Id. at 367. The court also found that the challenged protective orders was “narrowly drawn” to achieve its purpose. Id.

Finally, the Sixth Circuit has also explained “[t]he discovery rules themselves place no limits on what a party may do with materials obtained in discovery,” but that this right can be waived by, among other things, ‘consenting to a protective order.’” Nat’l Polymer Prods. v. Borg-Warner Corp., 641 F.2dd 418. (6th Cir. 1981). But, the court has also explained that “Seattle Times [v. Rhinehart] holds that parties to civil litigation do not have a right to disseminate information they have gained through participation in the discovery process. That case, however, does not govern the situation where an independent news agency, having gained access to sealed documents, decides to publish them.” P&G v. Bankers Trust Co., 78 F.3d 219, 225 (6th Cir. 1996).

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D. Pre-trial motions and records

In Shane Group, Inc. v. Blue Cross Blue Shield, the court reversed the district court’s sealing order, which included a class action plaintiff’s motion for class certification and related filings along with an expert’s report that “was the keystone of the settlement agreement.” 825 F.3d 299, 306 (6th Cir. 2016). The district court had used the “good cause” criteria for discovery protective orders to justify sealing. Id. The Sixth Circuit explained that “[s]ecrecy is fine at the discovery stage before the material enters the judicial record.” Id. at 305 (quoting Baxter Int’l, Inc., v. Abbott Labs., 297 F.3d 544, 545 (7th Cir. 2002). “At the adjudication stage, however, very different considerations apply.” Id. (quoting Joy v. North, 692 F.2d 880, 893 (2d Cir. 1982)).

First, a proponent of sealing must overcome “a strong presumption in favor of openness,” which is a heavy burden. Id. (quoting Brown & Williamson Tobacco Corp. v. FTC, 710 F.2d 1165, 1179 (6th Cir. 1983)). To overcome this presumption, a party seeking to seal court records must assert that a compelling interest justifies sealing and that the seal sought is narrowly tailored. Id. (citations omitted). This will generally involve balancing the asserted compelling interest against the First Amendment right of access. Id. at 307. The parties in Shane Group did not make the requisite showing and the district court abused its discretion in sealing the records. Id. at 308.

The Sixth Circuit, sua sponte, reversed a district court’s sealing of motions for summary judgment along with the multitude of supporting exhibits, where the only reason given in support of the sealing was the stipulated protective order that governed discovery and purported to require that all documents designated as confidential by the parties must be filed under seal. Beauchamp v. Fed. Home Loan Mortg. Corp., 658 F. App’x 202, 207–08 (6th Cir. 2016) (unpublished).

The Sixth Circuit also reversed a district court’s order sealing the FTC’s filings, including the administrative record developed by the agency before the suit, where a tobacco company sued the FTC to challenge its proposes actions regarding tar and nicotine testing. Brown & Williamson Tobacco Corp. v. FTC, 710 F.2d 1165, 1167 (6th Cir. 1983). Addressing the issue on its own motion after being highlighted by an amicus brief, the circuit court rejected the expansive seal on the court’s records. Id. at 1176. The court found that the principles are the foundation of the First Amendment right of access to criminal trials applies to civil proceedings and to the records of both types of proceedings, explaining that “court records often provide important, sometimes the only, bases or explanations for a court’s decision.” Id. at 1177–78. After recounting the public policy justifications for open courts, like its “important role as outlets for ‘community, concern, hostility, and emotions,’” as well as being “a check on courts,” among other things, the court rejected the tobacco company’s arguments that reputational harm and assurances of confidentiality during the underlying administrative proceeding, including by statute, were sufficient to justify the broad sealing order. Id. at 1178–80.

In a case with an even broader sealing order, which shielded all the documents in a case, including the cases existence on the docket, the Sixth Circuit similarly found that the court records in question should have not been sealed. Rudd Equip. Co. v. John Deere Constr. & Forestry Co., 834 F.3d 589, 591 (6th Cir. 2016). In Rudd, the defendant eventually moved to unseal the previously sealed court records, which even included the briefs on the motion to unseal. Id. The circuit court explained that “[i]n civil cases, as much as in criminal matters, ‘[t]he resolution of private disputes frequently involves issues and remedies affecting third parties or the general public,’ and secrecy serves only to ‘insulate[] the participants, mask[] impropriety, obscure[e] incompetence, and conceal[] corruption.’” Id. at 593 (quoting Brown & Williamson, 710 F.2d at 1179). The court rejected privacy, waiver, and reliance arguments as being insufficient to justify closure. Id. 594–95.

The Sixth Circuit did find that sealing was proper in In re Knoxville News-Sentinel Co., 723 F.2d 470, 476–78 (6th Cir. 1983), where the court records that were sealed implicated the privacy rights of innocent third-parties. The seal was limited to two exhibits to the complaint by a bank against the FDIC that included “the FDIC’s list of questionable loans … and the bank’s loan-by-loan response.” Id. at 472. The information contained in these documents included the borrower’s name, the amount of each loan, and “extensive discussion of the borrower’s financial condition, prospects and personal life.” Id. at 471. The court relied upon federal banking statutes and regulations providing for the privacy of bank records, including in the federal Freedom of Information Act, in addition to the fact that the people’s whose information was at issue “were not responsible for the initiation of the underlying litigation.” Id. at 477.

And, in the context of a declaratory judgment suit by a journalist against a state court judge who refused to provide access to motions in limine until after the jury began its deliberations, the Sixth Circuit, in an unpublished opinion, took a more lenient view regarding the ability of judges to refuse access to court records. Resnick v. Patton, 258 F. App’x 789 (6th Cir. 2007) (unpublished). Unlike Brown & Williamson, 710 F.2d at 1177, which recognized a First Amendment right of access to court records derived from the First Amendment access to court rooms, the Resnick court instead relied solely upon the common law right of access to court records from Nixon v. Warner Communications. 258 F. App’x at 792. The Resnick court emphasized that this was a discretionary decision and that the journalist’s access was only “temporarily prohibited.” 258 F. App’x at 792 (emphasis in original).

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E. Trial records

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F. Settlement records

In Shane Group, Inc. v. Blue Cross Blue Shield, 825 F.3d 299 (6th Cir. 2016), the court held that “[c]lass members cannot participate meaningfully in the process contemplated by Federal Rule of Civil Procedure 23(e) unless they can review the bases of the proposed settlement and the other documents in the court record.” Id. at 309. Thus, an unnamed class action plaintiff should have access to court records relied upon for a proposed settlement, because without such access “[t]he Rule 23(e) objection process seriously malfunctioned…” Id.

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G. Post-trial records

In Krause v. Rhodes, 671 F.2d 212 (6th Cir. 1982), the Sixth Circuit addressed public access to discovery materials in the civil suits stemming from the May 4, 1970, Kent State shootings, but only after the trials had been completed. The discovery in that case “was to be open, broad and far-reaching,” but not necessarily open to the public. Id. at 214. The district court even went so far as to permit access to related grand jury testimony transcripts in discovery. Id.

In post-trial orders, the court required the return of many materials to their owners, including federal and state grand jury transcripts, so as to keep them from the public, but denied requests for similar treatment to various state governmental records, with the exception that the names of witnesses, interviewing officers, and third parties be redacted. Id. at 216–17. The district court based its ruling on the “First Amendment interests and the historic nature of the events portrayed in the materials concerned.” Id. at 217. The Sixth Circuit noted that the case involved “emanations from the First Amendment such as the public’s right to know and legitimate concern about the accurate recordation of important historical events,” but that there were legitimate privacy and governmental concerns. Id. The court held that the district court did not abuse its discretion and its “orders were drafted with careful recognition of the competing interests, and … scrupulously followed the applicable law.” Id. at 219.

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H. Appellate records

“Although documents sealed in the district court must be filed under seal in this court, see 6th Cir. R. 25(h)(5); 6th Cir. I.O.P. 10(c), documents filed in this court are generally made available to the public.” In re State Farm Fire & Cas. Co., 2019 U.S. App. LEXIS 20035, at *2 (6th Cir. 2019) (citing P & G v. Bankers Tr. Co., 78 F.3d 219, 227 (6th Cir. 1996)).

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I. Other civil court records issues

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VII. Jury and grand jury access

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A. Access to voir dire

In In re Petitions of Memphis Publishing Co., 887 F.2d 646 (6th Cir. 1989), the court addressed whether the use of a sound machine to shield voir dire from the public, including the press, in a case with “mammoth pretrial publicity,” was proper. The media intervened to challenge the use and to open the voir dire process. Id. at 647. The district court held that the constitutional right of the defendant to a fair trial justified closing voir dire, but did state that a transcript of voir dire would be available after jury selection was completed. Id. at 647–48. Relying upon Press-Enterprise I and II, the circuit court reversed, holding “that the naked assertion by the district court in this case that defendant’s Sixth Amendment right to a fair trial ‘might well be undermined’ without any specific finding of fact to support that conclusion, was insufficient to justify closure…” Id. at 648.

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B. Juror identities, questionnaires and other records

The Sixth Circuit has held that whether to empanel an anonymous jury is within the sound discretion of the trial court, but the court has also provided “guidelines to determine when circumstances of a case call for the use of an anonymous jury.” United States v. Talley, 164 F.3d 989, 1001 (6th Cir. 1999) (United States v. Eufrasio, 935 F.2d 553, 573 (3d Cir. 1991)); see also United States v. Warman, 578 F.3d 320, 343 (6th Cir. 2009) (“A district court may empanel an anonymous jury in any case in which the interests of justice so require” (citing 28 U.S.C. § 1863(b)(7))). “[A] district court should not order the empaneling of an anonymous jury without ‘(a) concluding that there is a strong reason to believe the jury needs protection, and (b) taking reasonable precautions to minimize any prejudicial effects on the defendant and to ensure that his fundamental rights are protected.’” Talley, 164 F.3d at 1001 (quoting United States v. Paccione, 949 F.2d 1183, 1192 (2d Cir. 1991); see also United States v. Lawson, 535 F.3d 434 (6th Cir. 2008) (same). More specifically, “[t]he anonymity of the jury should be preserved in cases: 1) with very dangerous persons who were participants in large scale organized crime, and who participated in mob-style killings and have previously attempted to interfere with the judicial process; 2) where defendants have had a history of attempted jury tampering and serious criminal records; or 3) where there have been allegations of dangerous and unscrupulous conduct by the defendant, coupled with extensive pretrial publicity.” Id. (citing Paccione, 949 F.2d at 1192).

When courts decide to empanel an anonymous jury, they must conduct “voir dire designed to uncover bias as to issues in the case and as to the defendant himself.” Id. at 1001–01. In one case, the voir dire was done so that the defendant “would be informed of each prospective juror’s community of residence, education, and type of work experience” and took three days. Lawson, 535 F.3d at 440.

Courts must also be careful regarding the explanation that is given to the jury for its decision to empanel an anonymous jury so as not to violate the criminal defendant’s right to a fair trial. Talley, 164 F.3d at 1002. The Sixth Circuit has suggested that such an explanation “would have been better if it had premised anonymity on the need to prevent the jurors from being harassed by the media…” Lawson, 535 F.3d at 440.

The court has also specifically held that “there is no constitutional right to a public jury” when an anonymous jury was challenged by a criminal defendant. Id.

The Sixth Circuit has favorably cited to application of the Richmond Newspapers “experience and logic” test for “post-trial examination of juror for potential misconduct” by the Third Circuit in a criminal case. Detroit Free Press v. Ashcroft, 303 F.3d 681, 695 (6th Cir. 2002) (citing United States v. Simone, 14 F.3d 833, 842 (3d Cir. 1994)).

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C. Grand jury proceedings and records

“Grand jury proceedings are not conducted in the open, and transcriptions of those proceedings are subject to a rule of secrecy.” Application of Storer Commc’ns, Inc., 828 F.2d 330, 336 (6th Cir. 1987) (citing Fed. R. Crim. P. 6(e)(2)). “The nature of a grand jury’s work requires that its proceedings remain secret, except where the stringent requirements of Rule 6(e)(3), Fed. R. Crim. P., are satisfied.” Id. (citing Douglas Oil Co. v. Petrol Stops Nw., 441 U.S. 211, 218 (1979)).

Relying on Douglas Oil, the Sixth Circuit has explained that “parties seeking disclosure of [grand jury] transcripts under Rule 6(e)(3) must show that the material they seek is needed to avoid a possible injustice in another judicial proceeding and the need for disclosure is greater than the need for continued secrecy.” In re Grand Jury Proceedings, 649 F.2d 387, 388 (6th Cir. 1981). The proper process is to make an initial inquiry with the supervising court to decide “if there is any special need for continuing secrecy of the grand jury proceedings” and then go to the other court “for a determination of the need for disclosure.” Id. at 388-89. But, if the original court “can reasonably obtain sufficient knowledge of the proceeding to determine whether disclosure is proper,” then it may keep the case. In re Grand Jury Proceedings, 841 F.2d 1264, 1268 (6th Cir. 1988) (quoting Fed. R. Crim. P. 6(e)(3)(e)). “[T]he litigation court then must balance the need for disclosure against the need for secrecy.” In re Grand Jury Proceedings, 649 F.2d at 389. And “a motion for disclosure of grand jury transcripts is not a prerequisite for a motion to transfer the transcripts.” Id.

It is “only in cases of ‘compelling necessity;’ i.e., where there is proof that without access to the grand jury materials a litigant’s position would be ‘greatly prejudiced’ or ‘an injustice would be done” where disclosure of grand jury proceedings or transcripts might be necessary. In re Grand Jury Proceedings, 841 F.2d at 1268 (quoting United States v. P&G, 356 U.S. 677 (1958)). Generally, the need for secrecy related to grand jury proceeding continues even after it has decided not to indict the subject, after the grand jury has been dissolved, and after one that has been indicted pleads guilty. Id.

The need analysis requires that the party seeking disclosure “show that the material they seek is needed to avoid a possible injustice in another judicial proceeding, that the need for disclosure is greater than the need for continued secrecy, and that their request is structured to cover only material so needed.” Id. (quoting Douglas Oil, 441 U.S. at 222). Once “a particularized need for disclosure has been demonstrated, a district court that is properly seized of the question is given wide discretion to decide whether it is the need for secrecy that predominates, or the need for disclosure.” Id. at 1268–69 (citing United States v. John Does, Inc. I, 481 U.S. 102, 115–16 (1987)).

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D. Interviewing jurors

In In re Petitions of Memphis Publishing Co., 887 F.2d 646 (6th Cir. 1989), the district court asked jurors not to speak about a criminal case that had drawn “mammoth pretrial publicity.” Id. at 648. After being rebuked by jurors they sought to interview, the media challenged the district court’s action via motion, which was denied without explanation. On appeal, the court remanded “for clarification, mindful of the fact that if the trial court’s statement were indeed a post-trial judicial gag order of the scope alleged by [the media], it would trammel First Amendment values, and thus fail to pass Constitutional muster.” Id. at 649.

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VIII. Proceedings involving minors

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A. Delinquency

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B. Dependency

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C. Other proceedings involving minors

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D. Prohibitions on photographing or identifying juveniles

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E. Minor testimony in non-juvenile courts

In a dissenting opinion, it has been noted that “[t]he Free Press Clause ensures that newspapers have access to criminal trials, see Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 100 S. Ct. 2814, 65 L. Ed. 2d 973 (1980)—but not when publicity would cause psychological harm to a child witness, see Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 608-09, 102 S. Ct. 2613, 73 L. Ed. 2d 248 (1982).” Kovacic v. Cuyahoga Cty. Dep’t of Children & Family Servs., 724 F.3d 687, 707 (6th Cir. 2013).

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IX. Special proceedings

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A. Tribal Courts in the jurisdiction

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B. Probate

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C. Competency and commitment proceedings

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D. Attorney and judicial discipline

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E. Immigration proceedings

In Detroit Free Press v. Ashcroft, the Sixth Circuit decided the question of “whether the First Amendment affords the press and public a right of access to deportation hearings.” 303 F.3d 681, 694 (6th Cir. 2002). A directive from the chief immigration judge ordered closure of all deportation proceedings in “special interest” cases, generally related to terrorism, and also restricted release of information regarding the matter, including “‘confirming or denying whether such a case is on the docket or scheduled for a hearing.’” Id. at 683–84. Applying the Richmond Newspapers “experience and logic” test, the court held that there was a First Amendment presumptive right of access to deportation proceedings. Id. at 700.

On the experience prong, the court addressed “whether this inquiry requires a significantly long showing that the proceedings at issue were historically open, such as a common law tradition.” Id. The court held that “although historical context is important, a brief historical tradition might be sufficient where the beneficial effects of access to that process are overwhelming and uncontradicted.” Id. at 701. The court did caution: “‘[a] historical tradition of at least some duration is obviously necessary, … [or] nothing would separate the judicial task of constitutional interpretation from the political task of enacting laws currently deemed essential.’” Id. (quoting In re The Reporters Comm. for Freedom of the Press, 773 F.2d 1325, 1332 (D.C. Cir. 1985 (Scalia, J.)).

In regards to deportation hearings specifically, the court found that “deportation proceedings historically have been open,” pointing to federal regulations that made them presumptively open and Congressional action that closed another type of immigration proceeding. Id. at 701. The court rejected the government’s argument that these were merely administrative proceedings to which there was no common law right of access, explaining that courts must look at more than labels and should instead “look to proceedings that are similar in form and substance” when deciding the experience prong. Id. at 702. Here, the deportation hearings “‘walk, talk, and squawk’ very much like a judicial proceeding.” Id. As a result, the Court found that the experience prong supported a presumptive right of access under the First Amendment.

The court reached the same conclusion on the “logic” prong. “Public access undoubtedly enhances the quality of deportation proceedings” for many of the same reasons that supported the holding in Richmond Newspapers. Id. at 703.

In applying strict scrutiny to the presumptively open deportation proceedings, the court found that the government’s “ongoing anti-terrorism investigation certainly implicates a compelling interest,” but the closure “directive is neither narrowly tailored nor does it require particularized findings.” Id. at 705.

In reaching its holding, the court rejected the government’s argument that the Richmond Newspapers line of cases did not apply to deportation proceedings because they were administrative proceedings to which “the more deferential standard” in Houchins v. KQED, Inc., 438 U.S. 1 (1978), applied. Ashcroft, 303 F.3d at 674. In addition, the Sixth Circuit rejected the government’s argument that it could “implement any non-substantive policy infringing upon [the right of access] if it is ‘facially legitimate and bona fide.’” Id. at 686 (quoting Kleindeinst v. Mandel, 408 U.S. 753, 770 (1972)).

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F. Other proceedings

Student Disciplinary Proceedings

The Sixth Circuit has found that there is no First Amendment right of access to college student disciplinary proceedings. United States v. Miami Univ., 294 F.3d 797, 823 (6th Cir. 2002). “[W]hile student disciplinary proceedings may resemble a criminal trial in some limited respects and while certain university rule and regulation violations may also constitute criminal behavior, student disciplinary proceedings do not present matters for adjudication by a court of law.” Id. at 822. Similarly, the court found that student disciplinary hearings had not been historically open to the press and general public and that public access to those proceedings “will not aid in the functioning of traditionally closed student disciplinary proceedings…” Id. at 823.

Administrative Hearings

The Sixth Circuit has favorably cited to application of the Richmond Newspapers “experience and logic” test for administrative hearings. Detroit Free Press v. Ashcroft, 303 F.3d 681, 695 (6th Cir. 2002) (citing Society of Prof. Journalists v. Sec’y of Labor, 616 F. Supp. 569, 574 (D. Utah 1985), vacated as moot, 832 F.2d 1180 (10th Cir. 1987)).

Settlement Negotiations and Other Settlement Proceedings

The Sixth Circuit has explained that “there is no tradition of public access to settlement negotiations and other proceedings directly aimed at achieving settlements.” In re S. Ohio Corr. Facility, 24 F. App’x 520, 530 (6th Cir. 2001) (citing In re Cincinnati Enquirer, 94 F.3d 198, 199 (6th Cir. 1996)). “But there is an important distinction … between negotiating a settlement in the first instance and using court resources to implement a settlement that has already been agreed to.” Id. (citations omitted).

In regard to the release of information related to the payments to victims as part of a settlement of a class action suit concerning a prison riot, the court recognized the potential threat to the safety of prisoners who received payments from the settlement and also noted that privacy concerns of non-claimants, like informants and guards could trump access where “identification of such persons would subject them to an appreciable risk of harm.” Id.

Unmasking Doe Parties

The Sixth Circuit has held that its procedures and standards for access to judicial proceedings are modified when addressing an effort to unmask a Doe party. Signature Mgmt. Team, LLC v. Doe, 876 F.3d 831, 837 (6th Cir. 2017). First, similar to other access cases, “there is … a presumption in favor of unmasking anonymous defendants when judgment has been entered for a plaintiff.” Id. Courts must take into account both the public interest in transparency and the plaintiff’s need for the Doe’s real name “in order to enforce its remedy.” Id. “Further, where a Doe defendant’s speech is found to be beyond the protection of the First Amendment, countering the presumption will require a showing that the Doe defendant participates in a significant amount of other, non-infringing anonymous speech that would be chilled if his identity were revealed.” Id.

The court also explained, consistent with the circuit’s access to court records cases, that the “presumption in favor of openness is stronger when there is a greater public interest in the subject matter of the litigation.” Id. (citing Shane Grp., Inc., 825 F.3d at 305). But, the determination of the strength of the public interest in a particular case is fact-intensive. Id. To assist future courts, the opinion discussed examples of greater and lesser public interest for defamation and copyright cases.

First, in defamation cases, some factors to be considered in evaluating the strength of the public interest in unmasking an anonymous party are “the content and subject matter of the speech, the frequency of the speech, the size of the audience for the speech, and the intent of the speaker.” Id. On one end of the spectrum could be “[i]ntentionally libelous speech that was read by a large number of persons, and which implicates a topic of public concern or a well-known figure[, which] would carry a strong presumption in favor of unmasking.” Id. On the other end of the spectrum in defamation cases would be “where the libelous speech was negligent, read by few people, and arose from a personal feud.” Id. In that situation, there would be limited public interest for purposes of this analysis. Id.

In copyright cases, the court posited that things to consider in evaluating the public interest in a case could be “the reach of the copyrighted material, the economic loss suffered by the copyright holder, the reach of the infringed version of the copyrighted material, and the intent of the infringer.” Id. “For example, the public interest would be stronger when the infringed material is a bestselling novel rather than a sparsely read instruction manual.” Id.

The need of the successful plaintiff “to unmask the defendant in order to enforce its rights” is also crucial to the analysis. Id. If the relief awarded was ongoing in nature, like a permanent injunction, there would be greater need to unmask the anonymous defendant. Id. In contrast, if an anonymous defendant has “willingly participated in the litigation and complied with all relief ordered” then the need to unmask the party is “minimal.” Id. The court even went so far as to suggest that one possible result when the public interest is minimal and the party resisting unmasking has a substantial interest in remaining anonymous then a court “could reasonably enter a judgment that conditions a defendant’s continued anonymity on the satisfaction of the judgment within a certain timeframe.” Id. at 837–38.

“Finally, a Doe defendant may rebut the presumption of openness by showing that he engages in substantial protected speech that unmasking will chill.” Id. at 838.

Executions

The Sixth Circuit has rejected application of the Richmond Newspapers “experience and logic” test to decide if there is a First Amendment right of access to executions. Phillips v. DeWine, 841 F.3d 405, 419–20 (6th Cir. 2016). Instead, the court found that Houchins v. KQED, Inc., 438 U.S. 1 (1978), governed access to executions. Phillips, 841 F.3d at 418–20.

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X. Restrictions on participants in litigation

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A. Media standing to challenge third-party gag orders

In CBS, Inc. v. Young, a mandamus action, the Sixth Circuit found that the press had standing to challenge gag orders on the participants in litigation because “its ability to gather the news concerning the trial is directly impaired or curtailed” by the gag order and “[t]he protected right to publish the news would be of little value in the absence of sources from which to obtain it. 522 F.2d 234, 237–38 (6th Cir. 1975); see also United States v. Ford, 830 F.2d 596, 598 (6th Cir. 1987) (holding that a criminal defendant’s appellate challenge of a gag order against him was reviewable under the collateral order doctrine).

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B. Gag orders on the press

The Sixth Circuit found that an automatic suppression order based on a state statute forbidding the publication of the names of both the alleged perpetrator and victim of criminal sexual conduct that also applied to the media was an unconstitutional prior restraint in WXYZ, Inc. v. Hand, 658 F.2d 420, 421 (6th Cir. 1981). The court required a stringent showing to uphold the prior restraint:

[T]he First Amendment tolerates absolutely no prior judicial restraints of the press predicated upon surmise or conjecture that untoward consequences may result … Thus, only governmental allegation and proof that publication must inevitably, directly and immediately cause the occurrence of an event kindred to imperiling the safety of a transport already at sea can support even the issuance of an interim restraining order.

Id. at 426 (quoting New York Times Co. v. United States, 403 U.S. 713, 725–27 (1971) (Brennan, J. concurring). The court held that “[t]here is nothing in the record before us which shows that any of the adverse effects cited by [the judge] would in fact result in this case.” Id. (citing Neb. Press Ass’n v. Stuart, 427 U.S. 539, 569 (1976)). The court also rejected the argument that the order was not “a ‘gag’ because it merely postpones the right to disclose information.” Id. at 426 n.8 (citing Neb. Press Ass’n, 427 U.S. at 559).

The court reached a similar conclusion when a temporary gag order forbid the press from publishing the contents of documents that had been sealed by the district court upon the agreement of the parties was found to be unconstitutional in P&G v. Bankers Trust Co., 78 F.3d 219, 221 (6th Cir. 1996). In that case, the publisher “obtained information from a confidential source and prepared a story on a matter of public concern… [and] sought comment from the parties and proceeded to take the story to print.” Id. at 224. Before the story could be published, the magazine received a court order barring publication. Id. at 224–25.

The court explained that “‘prohibiting the publication of a news story … is the essence of censorship,’ and is allowed only under exceptional circumstances.” Id. at 225 (citation omitted). The court posed the question before it as “whether [the magazine’s] planned publication of these particular documents posed such a grave threat to a critical government interest or to a constitutional right as to justify” the prior restraint orders. Id. The answer was no. Id. “[T]he documents in question are standard litigation filings that have not been widely publicized. The private litigants’ interest in protecting their vanity or their commercial self-interest simply does not qualify as grounds for imposing a prior restraint. It is not even grounds for keeping the information under seal…” Id.

Special considerations also come into play regarding emergency requests for injunctions that prohibit speech, which are “a different beast” than regular TRO’s. Id. at 226. First, while TRO’s under Federal Rule of Civil Procedure 65 are designed to preserve the status quo until the dispute can be resolved, “[w]here the freedom of the press is concerned, however, the status quo is to ‘publish news promptly that editors decide to publish. A restraining order disturbs the status quo and impinges on the exercise of editorial discretion.’” Id. (quoting In the Matter of Providence Journal Co., 820 F.2d 1342, 1351, modified on reh’g by 820 F.2d 1354 (1st Cir. 1986), cert. granted and dismissed on other grounds). Second, “there is no place for [ex parte] orders in the First Amendment realm ‘where no showing is made that it is impossible to serve or to notify the opposing parties and give them an opportunity to participate.’” Id. (quoting Carroll v. President and Comm’r of Princess Anne, 393 U.S. 175, 180 (1968)). Finally, when a TRO is a prior restraint on speech, the standard to be applied is much higher: “publication must threaten an interest more fundamental than the First Amendment itself. Indeed, the Supreme Court has never upheld a prior restraint, even faced with the competing interest of national security or the Sixth Amendment right to a fair trial.” Id. at 226–27. Even the standard of review for temporary prior restraint orders is different than for other types of TRO’s. The former is reviewed de novo whereas the latter is reviewed for abuse of discretion. Id. at 227.

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C. Gag orders on participants

In CBS, Inc. v. Young, the media intervened to challenge the district court’s order that “all parties concerned with this litigation, whether plaintiffs or defendants, their relatives, close friends, and associates are hereby ORDERED to refrain from discussing in any manner whatsoever these cases with members of the news media or the public.” 522 F.2d 234, 236 (6th Cir. 1975). The Sixth Circuit held that this was a prior restraint on speech that “to meet judicial approval, must pose a clear and present danger, or a serious or imminent threat to a protected competing interest.” Id. at 238 (citations omitted). Even if that standard was met after overcoming the heavy presumption against such an order being constitutional, “[t]he restraint must be narrowly drawn and cannot be upheld if reasonable alternatives are available having a lesser impact on First Amendment freedoms.” Id. (citations omitted).

The CBS court cautioned that “a more restrictive ban upon freedom of expression in the trial context would be difficult if not impossible to find,” and that “[a]lthough the news media are not directly enjoined from discussing the case, it is apparent that significant and meaningful sources of information concerning the case are effectively removed from them and their representatives. To that extent their protected right to obtain information concerning the trial is curtailed and impaired.” Id. at 239. The court found that the order was also both vague and overbroad. Id. “We find the order to be an extreme example of a prior restraint upon freedom of speech and expression and one that cannot escape the proscriptions of the First Amendment, unless it is shown to have been required to obviate serious and imminent threats to the fairness and integrity of the trial.” Id. at 240.

The court noted that there was “massive publicity” of the underlying events of the case and the litigation, but the newspaper articles that were submitted to the court in support of the order were generally “innocuous.” Id. As a result, the court held that there was “no substantial evidence to justify the conclusion that a clear and imminent danger to the fair administration of justice existed because of publicity,” and that the district court’s order was unconstitutional. Id. at 240–41.

The Sixth Circuit reached a similar conclusion when a criminal defendant had a broad gag order entered sua sponte against him that forbade him

from “making” any “extrajudicial statement that a reasonable person would expect to be disseminated by means of public communication,” including any “opinion of or discussion of the evidence and facts in the investigation of the case,” any statement about a prosecuting attorney, any statement about “any alleged motive the government may have had in filing the indictment” or any statement “which relates to any opinions as to … the merits of the case.”

United States v. Ford, 830 F.2d 596, 597 (6th Cir. 1987). The court explained that “[t]he principles that underlie Young, a civil case, are even more forceful in the areas of criminal proceedings.” Id. at 599. In fact, “the accused has a First Amendment right to reply publicly to the prosecutor’s charges, and the public has a right to hear that reply, because of its ongoing concern for the integrity of the criminal justice system and the need to hear from those most directly affected by it.” Id. (quoting Freedman & Starwood, Prior Restraints on Freedom of Expression by Defendants and Defense Attorneys: Ratio Decidendi v. Obiter Dictum, 29 Stan. L. Rev. 607, 618 (1977)). Moreover, the court explained, in no uncertain terms,

[it] is the individual defendant to whom the Sixth Amendment guarantees a fair trial. It is the public to whom the First Amendment guarantees reasonable access to criminal proceedings. And it is individuals, not the government, to whom First Amendment interests attach. To the extent that publicity is a disadvantage for the government, the government must tolerate it. The government is our servant, not our master.

Id. at 600 (internal citations omitted). The order in the case was found to be “clearly overbroad” and to be lacking in factual support for this extreme remedy. Id.

The Sixth Circuit has also addressed whether a protective order on discovery may be constitutionally enforced when the material sought to be protected was revealed in open court with members of the public and press present. Nat’l Polymer Prods. v. Borg-Warner Corp., 641 F.2d 418, 420–21 (6th Cir. 1981). In that case, the vice president of one of the parties to the case used information that was subject to a protective order restricting its public use that had been revealed at the public trial. Id.

The court began by recognizing “the well-established principle of American jurisprudence that the release of information in open trial is a publication of that information and, if no effort is made to limit its disclosure, operates as a waiver of any rights a party had to restrict its further use.” Id. at 421. While recognizing that “litigants and their counsel stand in different shoes than other persons with respect to their rights to reveal information about pending cases,” the court explained that “at least in the ordinary case, that the mere status of involvement in a lawsuit, without more, is insufficient to justify the restriction imposed here.” Id. at 423.

The court explained that a court considering an injunction barring publication of material both learned in discovery and alleged to have been publicly revealed in trial should use a two-step approach. “First, the trial court should examine, in camera, if necessary, the materials produced by virtue of the protective order, the transcript at trial, and the matters revealed or intended to be revealed” to decide what was or was not revealed at trial, which was covered by the protective order.” Id. at 424. For any material that was revealed in open court, “[s]uch matter may not be restrained unless the court finds that the interests in preserving confidentiality of the material outweigh [the] interest in disseminating it and the legitimate interest others may have in receiving it,” keeping in mind the heavy presumption against the constitutionality of all prior restraints. Id. “Considerations that may weigh against that presumption are whether disclosure might jeopardize the defendant’s right to the fair administration of justice, whether disclosure will actually impair legitimate business interests of the defendants, and whether the purpose of disclosure would clearly constitute an abuse of the discovery process.” Id. (internal citations omitted).

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D. Interviewing judges

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XI. Other issues

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A. Interests often cited in opposing a presumption of access

The Sixth Circuit has explained that the compelling interests that may permit a court to restrict right of access to courts and court records include fair trial rights of criminal defendants, privacy rights, especially of innocent third parties, trade secrets, national security, “‘information covered by a recognized privilege (such as the attorney-client privilege), and information required by statute to be maintained in confidence (such as the name of a minor victim of a sexual assault),’ is typically enough to overcome the presumption of access.” Shane Grp., 825 F.3d at 308 (quoting Baxter, 297 F.3d at 546); Brown & Williamson, 710 F.2d at 1179 (citations omitted).

Fair Trial Rights

A criminal defendant’s assertion of their Sixth Amendment rights to a fair trial is commonly cited as an interest that justifies closure of judicial proceedings or records, but the Sixth Circuit’s precedent carefully balances the right to a fair trial with the public’s First Amendment right of access.

The court has rejected arguments that “all publicity is prejudicial to a defendant’s right to a fair trial.” Application of Nat’l Broad. Co., 828 F.2d 340, 346 (6th Cir. 1987). The court has explained that “voir dire in some of the most widely covered criminal prosecutions has revealed the fact that many prospective jurors do not follow such news closely and that juries can be empaneled without inordinate difficulty.” Id. (citations omitted). One of the reasons: “this may come as a surprise to lawyers and judges, but it is simply a fact of life that matters which interest them may be less than fascinating to the public generally.” Id. (quoting United States v. Halderman, 559 F.2d 31, 62–63 n.37 (D.C. Cir. 1976) (en banc)).

The court further explained that when it comes to fair trial rights and the First Amendment right of access “‘these interests are not necessarily inconsistent. Plainly, the defendant has a right to a fair trial but, as we have repeatedly recognized, one of the important means of assuring a fair trial is that the process be open to neutral observers.’” Id. at 374 (quoting Press-Enterprise Co. v. Superior Court, 478 U.S. 1, 7 (1986)).

The court has also explained, in no uncertain terms, that

U.S. v. Ford, 830 F.2d 596, 600 (6th Cir. 1987) (internal citations omitted).

National Security

The Sixth Circuit has recognized that national security is a compelling interest, but cautioned courts that even when national security is the basis for closure that “we do not believe speculation should form the basis for such a drastic restriction of the public’s First Amendment rights. Detroit Free Press v. Ashcroft, 303 F.3d 681, 709 (6th Cir. 2002) (citing Press-Enterprise Co v. Superior Court, 478 U.S. 1 (1986) (“Press-Enterprise II”). In that case, the government argued that “mosaic” intelligence gathering, which is when “‘bits and pieces of information may appear innocuous in isolation,’ but [could be] used by terrorist groups to help form a ‘bigger picture’ of the Government’s terrorism investigation,” threatens national security and justifies closure. Id. at 706 (citation omitted). The court explained that “[t]he Government could use its ‘mosaic intelligence’ argument as a justification to close any public hearing completely and categorically, including criminal proceedings. The government could operate in virtual secrecy in all matters dealing, even remotely, with ‘national security,’ resulting in a wholesale suspension of First Amendment rights.” Id. at 709-10. “This, we simply may not countenance. A government operating in the shadow of secrecy stands in complete opposition to the society envisioned by the Framers of our Constitution.” Id. at 710.

Trade Secrets

In a recent unpublished opinion, the court explained that while a finding that what is sought to be sealed is a trade secret will generally be sufficient to carry the party’s burden, “even if a district court finds that a trade secret exists, it must still determine whether public interest outweighs the moving party’s interests in protecting their trade secret.” Kondash v. Kia Motors Am., Inc., 767 F. App’x 635, 638 (6th Cir. 2019). And it is only “legitimate trade secrets,” not just some unspecified disadvantage that might arise from the release of prejudicial information about a business or litigant that is “a recognized exception to the right of public access to judicial records.” Brown & Williamson Tobacco Corp. v. FTC, 710 F.2d 1165, 1180 (6th Cir. 1983). In fact, “common sense tells us that the greater the motivation a corporation has to shield its operations, the greater the public’s need to know.” Id. Similarly, broad assertions of “competitively-sensitive financial and negotiating information,” which were not argued to be trade secrets have been found to be insufficient. Shane Grp. Inc. v. Blue Cross Blue Shield of Mich., 825 F.3d 299, 308 (6th Cir. 2016).

Privacy

“‘[P]rivacy rights of participants and third parties’ are among those interests which, in appropriate cases, can limit the presumptive right of access to judicial records.” In re Knoxville News-Sentinel Co., 723 F.2d 470, 478 (6th Cir. 1983) (quoting Brown & Williamson, 710 F.2d at 1179); see also id. at 474 (relying upon the common law right of access that “trial courts have always been afforded the power to seal their records when interests of privacy outweigh the public’s right to know”). The privacy interest is particularly strong when it is the privacy rights of innocent third parties who were not involved in filing a lawsuit. Id. at 477–78; see also Shane Grp., 825 F.3d at 308 (“the privacy interests of innocent third parties should weigh heavily in the court’s balancing equation” (quoting U.S. v. Amodeo, 71 F.3d 1044, 1050 (2d Cir. 1995))). But privacy interests are at their weakest when asserted by plaintiffs. Rudd Equip. Co. v. John Deere Constr. & Forestry Co., 834 F.3d 589, 594 (6th Cir. 2016). Privacy has been found to be insufficient of an interest, even for minor children, based solely upon their shared last name with a plaintiff. Kiwewa v. Postmaster General, 2019 U.S. App. LEXIS 9050, at *4 (6th Cir. 2019) (unpublished).

Reputation

The Sixth Circuit has rejected claims that reputational harm is sufficient to justify sealing court records. See Kiwewa v. Postmaster General, 2019 U.S. App. LEXIS 9050, at *3–4 (6th Cir. 2019) (unpublished) (“Harm to reputation is insufficient to overcome the strong presumption in favor of public access, especially, where, as here, the party who filed the suit alleges harm from the public availability of the record.”); Rudd Equip. Co. v. John Deere Constr. & Forestry Co., 834 F.3d 589, 594 (6th Cir. 2016) (rejecting assertion of reputational harm as basis for capacious sealing order, especially “where the entity alleging harm from publicizing the mere existence of this case is the plaintiff – the party that chose to file suit”); Brown & Williamson Tobacco Corp. v. FTC, 710 F.2d 1165, 1179 (6th Cir. 1983) (“Simply showing that the information would harm the company’s reputation is not sufficient to overcome the strong common law presumption in favor of public access to court proceedings and records.”).

Reliance on Prior Orders

The Sixth Circuit has clarified that reliance upon a previously entered order sealing court records is only a factor to be considered when deciding whether to unseal court records. Rudd Equip. Co. v. John Deere Constr. & Forestry Co., 834 F.3d 589, 595–96 (6th Cir. 2016). In In re Knoxville News-Sentinel Co., the court noted that when a party significantly relies on a court’s order sealing filed documents, “only ‘extraordinary circumstances’ or ‘compelling need’ warrant the reversal of a protective order.” 723 F.2d 470, 478 (6th Cir. 1983) (quoting FDIC v. Ernst & Ernst, 677 F.2d 230, 232 (2d Cir. 1982)). In 2016, however, the court, explained that “our comment was far from a clear commandment that a district court should jettison entirely the Brown & Williamson balancing test and shift the burden to the requesting part to show an exception need for unsealing court records.” Rudd Equip., 834 F.3d at 595. Instead, “a court should ‘take account’ of a party’s reliance, and any extraordinary circumstances or compelling need, in its application of the balancing test.” Id. (citation omitted).

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B. Cameras and other technology in the courtroom

The Sixth Circuit has rejected constitutional arguments that would have required courts to permit “broadcasting, telecasting, and photographing of judicial proceedings.” Conway v. United States, 852 F.2d 187, 188 (6th Cir. 1988); see also McKay v. Federspiel, 823 F.3d 862, 864, 868 n.2, 870 (6th Cir. 2016) (finding that plaintiff lacked standing to challenge state court’s Electronic Device Policy that barred devices that could record audio or video, among other things and noting that “both the Supreme Court and our circuit have declined to recognize a constitutional right to record courtroom proceedings”) (citations omitted).

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C. Tips for covering courts in the jurisdiction

A general overview of federal courts for journalists may be found here on the United States Courts’ website: https://www.uscourts.gov/statistics-reports/publications/journalists-guide-federal-courts

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Author

Open Courts Compendium

I. Introduction: Access rights in the jurisdiction

A. The roots of access rights

B. Overcoming a presumption of openness

C. Procedural prerequisites to closure

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

A. Media standing to challenge closure

B. Procedure for requesting access in criminal cases

C. Procedure for requesting access in civil matters

D. Obtaining review of initial court decisions

III. Access to criminal proceedings

A. In general

B. Pretrial proceedings

C. Criminal trials

D. Post-trial proceedings

E. Appellate proceedings

IV. Access to criminal court records

A. In general

B. Arrest records

C. Dockets

D. Warrants, wiretaps and related materials

E. Discovery materials

F. Pretrial motions and records

G. Trial records

H. Post-trial records

I. Appellate records

J. Other criminal court records issues

V. Access to civil proceedings

A. In general

B. Pre-trial proceedings

C. Trials

D. Post-trial proceedings

E. Appellate proceedings

VI. Access to civil records

A. In general

B. Dockets

C. Discovery materials

D. Pre-trial motions and records

E. Trial records

F. Settlement records

G. Post-trial records

H. Appellate records

I. Other civil court records issues

VII. Jury and grand jury access

A. Access to voir dire

B. Juror identities, questionnaires and other records

C. Grand jury proceedings and records

D. Interviewing jurors

VIII. Proceedings involving minors

A. Delinquency

B. Dependency

C. Other proceedings involving minors

D. Prohibitions on photographing or identifying juveniles

E. Minor testimony in non-juvenile courts

IX. Special proceedings

A. Tribal Courts in the jurisdiction

B. Probate

C. Competency and commitment proceedings

D. Attorney and judicial discipline

E. Immigration proceedings

F. Other proceedings

X. Restrictions on participants in litigation

A. Media standing to challenge third-party gag orders

B. Gag orders on the press

C. Gag orders on participants

D. Interviewing judges

XI. Other issues

A. Interests often cited in opposing a presumption of access

B. Cameras and other technology in the courtroom

C. Tips for covering courts in the jurisdiction