On the Docket: News outlets should not be shy about seeking access to sealed court records

This column was originally published in the February 2023 issue of The Tennessee Press, the official publication of the Tennessee Press Association.

Update: After a judge ordered the state to disclose certain records it provided to death-row inmate Henry Hodges during discovery, three partially redacted videos were made public in court filings. As the Associated Press and the Nashville Banner reported, the graphic videos show prison staff physically restraining and forcibly medicating Hodges while he repeatedly complains that he is in pain.

The public doesn’t have an absolute right to access judicial records. But it does have a qualified right to them, which is regularly ignored by litigants, and, sometimes, judges. If you see that documents filed with courts are sealed, there might be a way to get access to them after all.

Litigants who ask a court to seal, or close, judicial records should be held to a high standard. Established precedent requires that judicial records only be sealed if the party seeking closure overcomes a presumption of openness by showing that sealing is “essential to preserve higher values and is narrowly tailored to serve that interest.” In other words, the bar for secrecy is quite high.

But in Hodges v. Helton, the Tennessee Department of Correction didn’t clear it. That’s the argument I recently made on behalf of the Associated Press in an effort to bring transparency to the high-profile civil rights case in which a mentally ill death-row inmate accuses two senior prison officials of subjecting him to cruel and unusual punishment.

Last December, the prison officials sought two protective orders from the Davidson County Chancery Court. One would prevent the inmate from publicly sharing a wide range of records he obtained in discovery from the state, including recordings of prison staff using security restraints. The other would require those same records to be filed with the court under seal.

We’re still waiting for the court to determine whether to grant those sealing requests. In the meantime, however, attorneys for both parties have been filing records under seal, shielding critical information about the case from the press and the public without the court’s permission to do so.

The state has only offered broad, vague assertions for keeping these records secret, claiming that disclosing records that show the use of security restraints, among other things, would “pose a severe security risk.” But the state’s reasoning is nowhere close to being as strong or specific as it needs to be to overcome its heavy burden to justify secrecy, especially in a case that has attracted significant public interest.

The fight for access to court records is one that my colleagues and I at the Reporters Committee for Freedom of the Press routinely wage on behalf of journalists and news organizations across the country. The public has a First Amendment right to know what’s happening in their courts. Access to court records helps establish trust between the judicial system and the communities it serves.

Judicial records are often the only thing courts rely on to make their rulings. That’s especially true in civil cases, where there are sometimes few, if any, court proceedings leading up to a trial. If journalists can’t access court records, they can’t effectively shed light on the actions of judges and parties, and they can’t help the public make sense of cases that affect their communities.

Journalists and news organizations shouldn’t be shy about pushing back against efforts to block access to court records. As my colleagues and I at the Reporters Committee know from experience, the fight is often worth it. Last year, for example, a federal judge rejected an effort by law enforcement agents to shield a video capturing a 2018 workplace immigration raid in eastern Tennessee. The judge’s order came after I opposed the sealing of the recording on behalf of the publisher of the Tennessee Lookout.

It’s important to be skeptical of attempts to seal court records. When you see a request for a sealing order, ask yourself why the party is trying to hide records from the public and scrutinize their arguments — if they even present any — for doing so. And when a judge grants a sealing order request, you should closely examine the judge’s rationale for permitting this extreme remedy. If their case for shielding potentially newsworthy records is weak, it’s probably a good idea to challenge them.

Paul McAdoo is the Tennessee Local Legal Initiative attorney for the Reporters Committee for Freedom of the Press. He is based in Nashville.