E. Discovery materials

Although there is little case law on this topic in the criminal context, in the civil context, the Supreme Court ruled that “pretrial depositions and interrogatories are not public components of a civil trial. Such proceedings were not open to the public at common law, and, in general, they are conducted in private as a matter of modern practice.” Seattle Times Co. v. Rhinehart, 467 U.S. 20, 33 (1984).

The Tenth Circuit has not definitively extended access rights to discovery materials. See, e.g., United States v. Gonzales, 150 F.3d 1246, 1260 (10th Cir. 1998) (“Discovery proceedings are fundamentally different from other proceedings to which courts have recognized a First Amendment right of access.”).

In United States v. Atesiano, a district court in the Southern District of Florida denied access to materials produced during discovery in an unreasonable search and seizure case reasoning that "documents collected during discovery . . . are not 'judicial records.'" No. 18-20479-CR-MOORE/SIMONTON, 2018 WL 5831092, *4 (S.D. Fla. 2018) ("Discovery, whether civil or criminal, is essentially a private process because the litigants and the courts assume that the sole purpose of discovery is to assist trial preparation. That is why parties regularly agree, and courts often order, that discovery information will remain private.") (quoting United States v. Anderson, 799 F2d 1438 (11th Cir. 1986)).

In United States v. Kravetz, 706 F.3d 47, 53 (1st Cir. 2013) the First Circuit concluded that pre-trial subpoenas duces tecum and related motions (Federal Rule of Criminal Procedure 17(c) materials) “are not entitled to a presumption of access under either the First Amendment or the common law.”  “[N]o presumptive right of public access, based either in the common law or the First Amendment, attaches to the Rule 17(c) subpoenas or the related documents filed in connection with the underlying criminal prosecution in this case. Consequently, access may be obtained only upon a showing of special need.”  Id. at 56.

In United States v. Wecht, the Third Circuit held that while the common law right of access generally applies to “documents filed with the court,” it does not apply to discovery materials attached to discovery motions.  484 F.3d 194, 208–10 (3d Cir. 2007).  In Wecht, the county coroner was on trial for committing crimes of fraud by using the powers of his public office.  Id. at 198.  The FBI agent investigating the defendant had a reputation for dishonesty and complaints of fabricating the truth.  Id.  One of the issues on appeal was whether the FBI agent’s personnel records, which had been filed in connection with a discovery motion, should be unsealed under the common law right of access.  Id. at 207–08.

The Third Circuit’s analysis began by highlighting the general common law right of access to judicial records.  Id. at 208.  The court described judicial records as documents that are filed with the court, “or . . . [documents] incorporated or integrated into a district court’s adjudicatory proceedings.”  Id. at 208 (citing In re Cendant Corp., 260 F.3d 183, 192 (3d Cir. 2001)); see also United States v. Chang, 47 F. App’x 119, 122 (3d Cir. 2002) (“Filing clearly establishe[s] the status of a document as a judicial record.”).

However, the Third Circuit held that the common law right of access does not extend to discovery materials attached to discovery motions, as “discovery traditionally has been conducted by the parties in private.”  Wecht, 484 F.3d at 208 (citing Seattle Times Co. v. Rhinehart, 467 U.S. 20, 33 (1984)).  “[D]ocuments filed with the court are generally subject to the common law right of access, unless attached to a discovery motion.”  Id. at 209.  The Third Circuit’s opinion in Wecht leaves open the issue of whether there is a common law right to documents submitted for in camera review.  See id. at 209.

In an unpublished decision, a district court in the Fourth Circuit held that the public has at least a common law right of access to Brady and Giglio materials that are filed with the court with the objective of obtaining judicial action. In re Voluntary Disclosures in Fifty-Five Closed Cases, No. 7:16-cr-00044-MFU, 2018 WL 3540281, *5 (W.D. Va. July 23, 2018) (denying motion to seal Brady and Giglio materials filed in connection with a motion for leave to intervene).

The Fifth Circuit has held that evidence material filed along with motions in limine to exclude such evidence from trial can be sealed for a temporary period of time if there is concern that disclosure could prejudice the defendant’s right to a fair trial. In re Gannett News Serv., 772 F.2d 113, 115 (5th Cir. 1985).

“[U]ntil admitted into the record, material uncovered during pretrial discovery is ordinarily not within the scope of press access." In re Associated Press, 162 F.3d 503, 510 (7th Cir. 1998); see also United States v. Berger, 990 F. Supp. 1051 (C.D. Ill. 1997) (press does not have right to attend the videotaped deposition of the state governor, which would remain sealed until it was played at trial before the jury; defendant’s right to a fair trial overrides the press’s right of access), rev’d on other grounds, In re Associated Press, 162 F.3d 503 (holding press should have been permitted to intervene but that deposition was not “trial testimony” and “it is well established that discovered but not-yet-admitted evidence is not ordinarily within the scope of press access”).

The Central District of Illinois’ Local Criminal Rules provide, in part, that “[a]ny pretrial discovery materials provided to the defendant pursuant to this Rule . . . shall not be disseminated to any person or used for any purpose other than in direct relationship to the criminal case to which the discovery pertains.”  C.D. Ill. Local Crim. R. 16.2(B)(1).  The comments to this Rule note that its application is limited to discovery “provided outside the requirements of Federal Rule of Criminal Procedure 16, applicable statutes, or the Constitution,” and that “disclosure is not prohibited; only physical dissemination is prohibited. A defendant is free to discuss or disclose the contents of discovery with anyone, but may not physically distribute the discovery.”

There appears to be no Eighth Circuit case law discussing the right of access to criminal court discovery materials.

Discovery materials generally do not qualify as public records, and as such are not presumptively open. See Ex parte Birmingham News Co., 624 So. 2d 1117, 1129 (Ala. Crim. App. 1993) (“Discovery in a criminal case has traditionally been a private matter between the parties and historically has not been open to the press and public.”). Autopsy reports, however, are public records if performed by the Alabama Department of Forensic Sciences. See Ala. Code § 36-18-2 (“The director [of the Department of Forensic Sciences] shall keep photographed or microphotographed reproductions of original reports of all investigations that he conducts in his office. Reproductions of such materials shall be public records and shall be open to public inspection at all reasonable times.”). Records that are normally “public” do not become private simply because they are given to law-enforcement.  Water Works & Sewer Bd. v. Consol. Publ'g, Inc., 892 So. 2d 859, 866 n.4 (Ala. 2004).

In general, parties cannot be compelled to make discovery materials, as such, public, but discovery materials attached to substantive motions are presumed to be public in accordance with cases applying constitutional and common law principles of access to judicial records. In Henry v. Municipality of Anchorage, No. 3:15-cv-00187-RRB (D. Alaska), the federal district court judge presiding over an Anchorage police detective’s high profile suit against his former employer, granted a motion filed by press intervenors Anchorage Daily News and KTUU-TV to compel release of a significant 97-page internal investigation report prepared for the Municipality by a police consultant and used in the litigation. (Beistline, J., Order Motions Regarding Access to Brown Report and Related Judicial Records, Dkt. 918, September 25, 2018). The report had been produced to plaintiff during discovery subject to a protective order stipulated to by the parties.  The court agreed with the press that the “good cause” standard that might suffice to warrant a protective order was not sufficient to justify continued withholding of the document once it had been used in court proceedings. Instead, a compelling justification for nondisclosure would need to be shown.

The Municipality argued that the Brown Report and its attachments could not be disclosed because they “contain highly confidential and sensitive information regarding sexual assault victims, confidential informants, and other law enforcement investigations.” Alternatively, the Municipality argued that if the Court were to grant access to the Brown Report, in whole or in part, it should delay doing so until after the trial was over to avoid tainting the jury pool. The court agreed that “compelling reasons” would need to be shown to justify nondisclosure, and that “unlike private materials unearthed during discovery, judicial records (which the Brown Report became when it was relied upon in motions filed during the suit) are public documents almost by definition, and the public is entitled to access almost by default.” The court found the Municipality had not adequately explained why modest redactions that the press agreed would be appropriate could not adequately address the legitimate concerns about protecting sexual assault victims, juveniles, confidential informants, HIPAA, and similar interests.  The court stated that “potential jurors” who the Municipality claimed would be “tainted before trial even begins” as a result of news coverage of the Report would be identified during jury selection and excused. It also found the Plaintiff had had an opportunity to present “his side” of the story in numerous public documents in the Court record already, and said “the test is whether there is ‘actual prejudice preventing a fair trial, not some arbitrary proximity between news coverage and a trial.”  The court found that redactions would be sufficient to meet the Municipality’s concerns that disclosure of confidential references to investigations and activities of law enforcement agencies other than APD might compromise ongoing investigations, impede crime prevention, and endanger officers and civilians.” The court ordered disclosure and rejected the Municipality’s argument to withhold it until after trial.  The court found that there was no compelling reason to withhold the Report once it was redacted. But given that a jury was about to be picked around the same time as the Report would be ready, the court exercised its discretion to delay the release for a few days until completion of jury selection.

Rule 15.4(d) of the Arizona Rules of Criminal Procedure specifies that “[a]ny materials furnished to a party or counsel under Rule 15 must not be disclosed to the public, and may be disclosed only to the extent necessary for the proper conduct of the case.”

In NBC Subsidiary (KNBC-TV), Inc. v. Superior Court, 20 Cal. 4th 1178, 980 P.2d 337, 86 Cal. Rptr. 2d 778 (1999), the California Supreme Court held that California Code of Civil Procedure § 124 establishes a presumption of access to court proceedings. Its analysis was driven largely by U.S. Supreme Court cases finding a First Amendment right of access to criminal proceedings. However, discovery materials that are not filed with the court as judicial records are not subject to that presumption of access. Saunders v. Superior Court, 12 Cal. App. 5th Supp. 1, 13, 219 Cal. Rptr. 3d 5 (2017) (rejecting newspaper’s request for telephone records obtained pursuant to warrant and disclosed to defendant in discovery).

The Colorado Criminal Justice Records Act (“CCJRA”) governs public access to criminal justice records, and generally provides that custodians of ordinary criminal justice records, which include discovery materials, have discretion to permit or deny public access.  C.R.S. §§ 24-72-302 & 24-72-304. The Colorado Judicial Department’s Public Access to Court Records policy (pdf) generally permits public access to court records, subject to certain exceptions.  (Section 4.10; Section 4.60.)

The Colorado Supreme Court has declined to recognize “a constitutional right of access to any and all [criminal] court records in cases involving public concern.”  People v. Owens, 2018 CO 55, ¶ 7, 420 P.3d 257, 258 (Colo. 2018).  “[W]e have never recognized any such constitutional right—whether under the First Amendment [to the U.S. Constitution] or Article II, section 10 of the Colorado Constitution.”  Id. ¶ 8.  The Colorado Supreme Court stated that there is “no ‘absolute right to examine’ court records” but “inspection may be permitted ‘at the discretion of the court’” and in accordance with “laws and administrative procedures currently in place—including, but not limited to, the Colorado Criminal Justice Records Act, §§ 24-72-301 to -309, C.R.S. (2017)—that are predicated upon the absence of a constitutionally guaranteed right of access to criminal justice records.” Id. ¶¶ 9–10.

Discovery materials are generally exchanged between the parties to a court action and not filed with the court; in those instances a person seeking access to them must use either the state or federal freedom of information acts to obtain them (although Connecticut’s prosecutorial arm is largely exempt from the act under Conn. Gen. Stat. § 1-201).

However, if discovery materials are filed with a court (typically in support of a motion or other request for the court to do something), they may become “judicial documents,” to which the public has access.  In state court, the presumption of openness codified at Conn. R. Super. Ct. § 42-49A applies to all such records, defined as “any document filed that a court reasonably may rely on in support of its adjudicatory function.” State v. Komisarjevsky, 302 Conn. 162, 176, 25 A.3d 613, 622 (2011).

In federal court, judicial documents in criminal cases may be sealed “only if [the district court] makes particularized findings on the record demonstrating that sealing is essential to preserve compelling interests, and that sealing in whole or in part is narrowly tailored to serve those interests.”  D. Conn. Local. Crim. R. 57(b)(3)(B).

A D.C. district court found no right of access to an entire deposition given by former President Ronald Reagan in a criminal prosecution in view of the strong likelihood that information damaging to national security would be revealed. In United States v. Poindexter, 732 F. Supp. 165, 167 (D.D.C. 1990), however, the court granted access to an edited version with national security information redacted. Id. at 170 (allowing press to view tape as soon as editing process was completed and providing stenographic transcript of deposition).

In United States v. Poindexter, 732 F. Supp. 165 (D.D.C. 1990), a D.C. federal district court ordered that President Reagan’s videotaped deposition in connection with the Iran-Contra investigation be held in camera because of the top secret and sensitive information that would pervade it, but agreed to release it to the public once the classified information had been edited out. See also In re Application of Am. Broad. Cos., 537 F. Supp. 1168 (D.D.C. 1982) (holding that there was no common law right to copy and broadcast the videotaped deposition of Jodie Foster taken in connection with the John Hinckley case, and even if there was, that the interest in access would be outweighed by the interest in the actress’s privacy and safety, but also holding that tape-recorded conversations between Foster and Hinckley could be copied or broadcast after they were played to the jury); see also United States v. Trabelsi, No. CR 06-89 (RWR), 2015 WL 5175882, at *8 (D.D.C. Sept. 3, 2015) (holding that inter-governmental correspondence between United States and Belgium would be sealed, if produced).

Generally, the right of public access to discovery materials provided by the prosecution to the defense is triggered when the defense receives discovery under Florida Rule of Criminal Procedure 3.220. Florida Freedom Newspapers, Inc. v. McCrary, 520 So. 2d 32 (Fla. 1988), and Miami Herald Publishing Co. v. Lewis, 426 So. 2d 1 (Fla. 1983), govern attempts to seal pretrial discovery records in criminal cases. Thus, to justify closure of criminal court records, including pretrial discovery, the proponent of closure must overcome the presumption of openness and show that (1) closure is necessary to prevent a serious and imminent threat to the administration of justice; (2) no alternatives are available, other than change of venue, which would protect a defendant’s right to a fair trial; and (3) closure would be effective in protecting the rights of the accused, without being broader than necessary to accomplish this purpose. Lewis, 426 So. 2d at 6.

Where criminal discovery records are sought to be closed by non-parties, the Florida Supreme Court has adopted the Barron test. Post-Newsweek Stations, Fla. Inc. v. Doe, 612 So. 2d 549 (Fla. 1992). Under Barron, to overcome the strong presumption of openness in civil proceedings a proponent of closure must satisfy a three-prong test. The first prong requires a proponent to show that closure is necessary: “(a) to comply with established public policy set forth in the constitution, statutes, rules, or case law; (b) to protect trade secrets; (c) to protect a compelling governmental interest [e.g., national security; confidential informants]; (d) to obtain evidence to properly determine legal issues in a case; (e) to avoid substantial injury to innocent third parties [e.g., to protect young witnesses from offensive testimony; to protect children in a divorce]; or (f) to avoid substantial injury to a party by disclosure of matters protected by a common law or privacy right not generally inherent in the specific type of civil proceeding sought to be closed.” 531 So. 2dat 118. For privacy concerns, “it is generally the content of the subject matter rather than the status of the party that determines whether a privacy interest exists” that permits closure. Id. However, the privacy interest can be negated where “the content of the subject matter directly concerns a position of public trust held by the individual seeking closure.” Id. Second, the court must find that no reasonable alternatives exist to reach the desired result. Id. Finally, if no reasonable alternative exists, then the court must ensure that the means are the least restrictive necessary to accomplish the goal. Id.

There is no right of access to unfiled discovery materials such as deposition transcripts. Palm Beach Newspapers v. Burk, 504 So. 2d 378 (Fla. 1987); Lewis v. State, 958 So. 2d 1027 (Fla. 5th DCA 2007) (while Burk applied to unfiled deposition transcripts made during an ongoing, active criminal prosecution, materials related to defendant’s prosecution, including deposition transcripts, are subject to disclosure after the case becomes final under Florida’s public records law).

Over the past few years, a number of trial courts in Florida have adopted a procedure in high profile criminal cases governing the release of discovery materials provided to the defendant by the prosecution. Under that procedure, the materials are provided to the defense but are withheld from public access for a period of time to enable the defendant to object to the release of particular records. Once that time period has expired, the non-objectionable documents are automatically released. The court often does an in camera review of documents identified by the defense to determine whether they should be publicly released.

Discovery materials are presumptively open for public inspection once filed with the court. See also Atlanta Journal v. Long, 258 Ga. 410, 413 (1988) (“There is a presumption that the public will have access to all court records,” which may be overridden only “in cases of clear necessity.”). Rule 21 of the Uniform Superior Court Rules states that: “all court records are public and are to be available for public inspection unless public access is limited by law or by the procedure set forth [in the Rule].”

No Idaho court has specifically addressed the issue of whether discovery materials are subject to public disclosure.  Generally, discovery materials are not filed with a court so as to become a “court record.”  Thus, Idaho Court Administrative Rule 32 would not apply.  Once a document is filed with the court, it would fall within the provisions of Rule 32.  The Idaho Public Records Act states that exemptions to the act may not be used to limit the availability of documents and records for discovery in the normal course of adjudicatory or administrative proceedings.  Idaho Code § 74-115(3).

The Illinois Supreme Court has held that discovery materials and motions are not subject to the right of access unless they have been filed with the court because discovery is conducted in private and is not open to the public. People v. Zimmerman, 2018 IL 122261, ¶33, 120 N.E. 3d 918, 925, 427 Ill. Dec. 851, 858 (“[T]here is no tradition of access to discovery material not yet admitted at trial.”) The court noted that both in civil and criminal cases, the sole purpose of discovery is to assist in the preparation for trial. Id. The court held that discovery materials, therefore, do not have intrinsic value to the public if they have not been admitted at trial and therefore public access would not help further justice in a particular case. Id.

Although the following discovery materials are not exclusive to criminal proceedings, they often are relevant in criminal cases.

Autopsies. In 2001, a mandatory exception was added to bar disclosure of “a photograph, a video recording, or an audio recording of an autopsy, except as provided in [Ind. Code §] 36-2-14-10.” Ind. Code § 5-14-3-4(a)(11). The same law also amended Indiana Code Section 36-2-14-10 to declare autopsy photographs, video recordings, or audio recordings confidential for the purposes of § 5-14-3-4(a)(1), except in certain instances involving a surviving spouse, a government agent acting in an official capacity, or a coroner using the materials for training or educational purposes. Ind. Code § 36-2-14-10(b)–(e); see also Ind. P.L. 271-2001, §§ 1, 3, 4 (enumerating permitted and prohibited disclosures of autopsy records under Ind. Code §§ 5-14-3-4(a)(1), 16-39-7.1 and 36-2-14-10). The identifying information must also be removed from the disclosed material. Ind. Code § 36-2-14-10(b)–(e). “Identifying information” includes the deceased person’s name, address, Social Security number, a full view of the face, or identifying marks on the body that are unrelated to the medical condition or medical status. Ind. Code § 36-2-14-10(e)(1)-(5).

Notwithstanding these exceptions, and also notwithstanding the investigative records exception Section 5-14-3-4(b)(1), Indiana Code Section 36-2-14-18 requires that coroners must make certain information available, effectively mooting Althaus v. Evansville Courier Co., 615 N.E.2d 441, 446–47 (Ind. App. 1993), and Heltzel v. Thomas, 516 N.E.2d 103, 105–06 (Ind. App. 1987), which both held that the coroner’s office is a law enforcement agency, and the respective coroners did not act arbitrarily or capriciously in refusing to disclose autopsy reports.

Emergency Medical Service Records. There is no specific provision relating to emergency medical services records in the Access to Public Records Act. However, Indiana Code Section 16-31-2-11 governs the accessibility of emergency medical service records. Any pre-hospital ambulance rescue or record that an emergency ambulance service employing paramedics or emergency medical technicians uses or compiles is generally confidential. However, certain information within these record is public: the date and time of the request for ambulance services; the reason for the request for assistance; the time and nature of the response to the request for ambulance services; the time of arrival at the scene where the patient was located; the time of departure from the scene where the patient was located; and the name of the facility, if any, to which the patient was delivered for further treatment and the time of arrival at that facility. Id. § 16-31-2-11(d).

Gun Licenses. Under Indiana Code Section 35-47-2-3(l), information that an applicant submits to obtain or renew a gun license, information that the government obtains to investigate such application, and identifying information of gun license holders are confidential. However, law enforcement personnel seeking to determine the validity of a license to carry a handgun or for law enforcement purposes may obtain such information. Id. § 35-47-2-3(m). Further, persons conducting journalistic or academic work may obtain such information, but only if all personal identifying information is redacted.

In 2016, the General Assembly added statutory provisions governing law enforcement recordings, defined as “an audio, visual, or audiovisual recording of a law enforcement activity captured by a camera or other device that is: (1) provided to or used by a law enforcement officer in the scope of the officer’s duties; and (2) designed to be worn by a law enforcement officer or attached to the vehicle or transportation of a law enforcement officer.” Ind. Code § 5-14-3-2(k). Indiana Code 5-14-3-5.2(a) provides that a public agency may allow anyone to inspect and copy law enforcement recordings, unless one of the delineated exceptions applies. Additionally, the General Assembly enacted provisions requiring public agencies to retain unaltered or unobscured law enforcement recordings. See Ind. Code § 5-14-3-5.3.

Accident Reports. Accident reports are not specifically addressed under the Access to Public Records Act, but they are addressed under other statutory sections. Vehicle accident reports filed by a law enforcement officer are not confidential. Ind. Code § 9-26-2-3; Whitaker v. Apriss, 266 F.Supp.3d 1103 (N.D. Ind. 2017) (vehicle accident reports are not “motor vehicle records” and not subject to the protections of the Driver’s Privacy Protection Act, 18 U.S.C. §2721, et. seq.). However, other accident reports may only be used for state agencies, with exceptions. Id. § 9-26-2-4; see Madison v. Hawkins, 644 N.E.2d 184, 187 (Ind. Ct. App. 1994) (holding that the statute protected the accident report from discovery).

Police Blotter. The Access to Public Records Act requires police agencies to maintain a daily log or record that lists suspected crimes, accidents, or complaints. Ind. Code § 5-14-3-5(c). The record containing the information must be created not later than twenty-four hours after the suspected crime, accident, or complaint has been reported to the agency. Id.

911 Tapes. There is no statutory and little case law addressing 911 tapes. See City of Elkhart v. Agenda: Open Gov’t, Inc., 683 N.E.2d 622, 626 (Ind. Ct. App. 1997) (“The City begins with the premise, and we do not disagree, that the E–911 system is a record keeping or security system.”). A 2017 Public Access Counselor opinion addressed the question of whether 911 recordings are investigatory records under Indiana Code Section 5-14-3-4(b)(1). Opinion of the Public Access Counselor, Hasnie v. Carroll Cty. E-911, 17-FC-167. The Counselor opined that Carroll E-911 was not a “law enforcement agency” under the Access to Public Records Act, but even if it were, the investigatory records exception would not apply because the information sought was not “compiled in the investigation of a crime.” Id. The Counselor cited prior opinions that many 911 calls do not involve crime investigation and that 911 tapes are presumed to be records subject to public disclosure. Id (citing Opinion of the Public Access Counselor 08-FC-64).

Investigatory Records. Under Indiana Code Section 5-14-3-4(b)(1), access to investigatory records of law enforcement agencies may be provided or denied at the agency’s discretion. The statute does not distinguish between active or closed investigations.

However, under Indiana Code Section 5-14-3-5(b)(1), certain law enforcement information must be made available. See Althaus v. Evansville Courier Co., 615 N.E.2d 441, 446 (Ind. Ct. App. 1993) (holding that the investigatory records exception applied to the coroner’s files). This includes information about an individual who is arrested or jailed and also police logs of crimes, accidents and complaints. Ind. Code § 5-14-3-5(b)(1); see Post-Tribune v. Police Dep’t, 643 N.E.2d 307, 308–09 (Ind. 1994) (holding that police department satisfied obligation to provide “location” of rape by providing most specific location that reasonably protected victim’s privacy, not requiring department to provide exact address). Criminal intelligence information is confidential under Indiana Code Section 5-2-4-6 and is an exception to the general disclosure rule under Section 5-14-3-4(b)(25).

Criminal Histories. Access to criminal histories is governed by Indiana Code Section 10-13-3-27. Access is permitted only in sixteen instances, including if the individual has applied for employment with the requestor; is a candidate for public office or is a public official; has been or is in the process of being arrested; or has been convicted of major felonies; is a volunteer at a public school or at an organization where contact with children is expected; is being sought by a parent locator service; is a registered sex or violent offender. Id. Additionally, “[a] person may petition the state police department to limit access to the person’s limited criminal history to criminal justice agencies if more than fifteen (15) years have elapsed since the date the person was discharged from probation, imprisonment, or parole (whichever is later) for the last conviction for a crime,” Ind. Code § 35-38-5-5(b), but this provision does not apply to a request to a law enforcement agency in certain circumstances, Ind. Code § 35-38-5-5(a). If a petition is filed under Indiana Code Section 35-38-5-5(b), “the state police department shall not release limited criminal history to noncriminal justice agencies under IC 10-13-3-27.” Ind. Code § 35-38-5-5(c).

Information About Victims. Ind. Code Section 5-14-3-5(c)(3)(B) requires law enforcement agencies to provide the name and age of victims of crimes or infractions, unless the person is a victim of the sex crimes enumerated in Indiana Code Section 35-42-4-1 et seq., including rape, “criminal deviate conduct,” child molesting, child seduction, child solicitation, and sexual battery, or a victim of human and sexual trafficking under Section 35-42-3.5 et seq..

Confessions. Under Indiana Code § 5-14-3-4(b)(1), access to investigatory records of law enforcement agencies may be provided or denied at the agency’s discretion. If the confession is admitted as evidence at a court hearing or trial, the public is entitled to access it under the First Amendment and common law rights of access to judicial records, see State ex re. Post-Tribune Pub. Co. v. Porter Superior Ct., 412 N.E.2d 748, 751 (Ind. 1980), and under Indiana Administrative Rule 9.

Confidential Informants. Indiana Code Section 4-2-7-8 provides that the identity of any individual who discloses in good faith to the inspector general information alleging a violation of a state or federal statute, rule, regulation, or ordinance is confidential and may not be disclosed to anyone other than the governor, the staff of the office of the inspector general, or an authority to whom the investigation is subsequently referred or certified, unless: (1) the inspector general determines in writing disclosure is in the public interest, or (2) the individual consents to disclosure. Otherwise, confidential informants would be encompassed by Indiana Code Section 5-14-3-4(b)(1), which gives law enforcement agencies discretion to provide or deny access to investigatory records.

In Iowa, peace officers’ investigative reports are considered confidential. Iowa Code § 22.7(5) (2018). In addition, information about criminal activity which peace officers receive from third parties is also confidential. State Ex Rel. Shanahan v. Iowa Dist. Ct., 356 N.W. 2d 523, 528 (Iowa 1984) (citing Iowa Code § 622.11). This includes video recordings. Neer v. State, No. 10-0966, 2011 WL 662725, at *3 (Iowa Ct. App. Feb. 23, 2011). The appellate courts have not faced the issue whether the public may attend criminal depositions or have access to the limited discovery exchanged by the county attorney and defense counsel.

Kansas appellate courts have not had occasion to apply the U.S. Supreme Court’s ruling in Seattle Times Co. v. Rhinehart, 467 U.S. 20 (1984), that discovery materials are not open.  However, the issue has received attention in federal courts with jurisdiction in Kansas.  In United States v. Gonzales, 150 F.3d 1246 (10th Cir. 1998), the Tenth Circuit Court of Appeals denied a newspaper’s request for access to transcripts and materials, saying “Discovery proceedings are fundamentally different from other proceedings to which courts have recognized a First Amendment right of access.” Gonzales, 150 F.3d at 1260.  In this case, 23 persons had been indicted by a grand jury in New Mexico for drug distribution, murder and other offenses.  In denying the newspaper’s request for access to records, the Tenth Circuit observed that, “in many contexts, courts have rejected a constitutional right of access” to such documents as presentence reports; pre-indictment search warrant affidavits; documents considered by the court in ruling on civil discovery motions, and evidence ruled inadmissible by the court in suppression hearings.  Gonzales, 150 F.3d at 1261.  The Tenth Circuit reasoned that such materials may be withheld because of the need to maintain “effective, efficient, and fair procedures.”  Gonzales, 150 F.3d at 1261.

One issue addressed by Kansas state courts is whether coroner’s records are open.  In Burroughs v. Thomas, 937 P.2d 12 (Kan. App. 1997), the court considered whether a husband could gain access to records of an autopsy performed on his decedent wife.  The coroner who had performed the autopsy claimed that the records were exempt from disclosure.  However, the court’s ruling included findings that the records were subject neither to an exemption for medical records nor to an exemption for investigative materials that the coroner had gathered before issuing a final, official report.  The court said “no exemption exists for work papers once a report becomes a public record.”  Thomas, 937 P.2d at 15.

Most jurisdictions within Kentucky do not require criminal discovery materials to be filed in the court record.  Further, in Courier-Journal, Inc. v. McDonald-Burkman, 298 S.W.3d 846 (Ky. 2009), the Kentucky Supreme Court held that the mere filing of criminal discovery in the court file (without any action or review by the judge) does not trigger the constitutional right of access but does trigger the common law right of access.

Such records, if possessed by the Clerk of Court, should be accessible through a Public Records request. However, if such records are in the possession or control of specified “prosecutive, investigative, and law enforcement agencies” and pertain “to pending criminal litigation or any criminal litigation which can be reasonably anticipated,” they are exempt from disclosure under the Public Records Act. See La. R.S. 44:3.

Autopsy reports are public records. See La. R.S. 33:1563(K)(1) (“the coroner is required to make available for public inspection and copying the autopsy report”). Photographs or video in autopsy reports, however, is confidential. See La. R.S. 44:19. Furthermore, autopsy reports, in some circumstances, may be subject to the “criminal litigation” public records exception of La. R.S. 44:3.

There are no Maine cases involving access to discovery materials from the courts in criminal cases. In some instances, discovery materials may be available directly from the relevant law enforcement agencies. Access to law enforcement records is controlled by the Criminal History Record Information Act, 16 M.R.S.A. §§ 701–710. In addition, autopsy reports of the Office of the Chief Medical Examiner are available to the public to the same extent and subject to the same conditions as records of a criminal investigation. However, photographs, pathology slides and recorded communications expressing or evidencing suicidal intent in the possession of the Office of the Chief Medical Examiner are confidential. 22 M.R.S.A. §§ 2841(3), 3022(8)(9), and (11).

Under the Maryland Rules, while discovery materials attached as exhibits to pretrial motions or marked as evidence in criminal hearings are public, see Md. Rule 16-903, discovery materials that have not been filed with or marked by the court are not “Judicial Records” under the Rules, and therefore are not subject to a presumption of openness. See generally Md. Rule 16-902.

Like the Supreme Court, Massachusetts courts have stated on many occasions that there is no right of access to pre-trial discovery in civil matters, but Massachusetts courts have spoken less definitively about criminal discovery. Consequently, access to discovery materials can be more strictly limited than in other stages of proceedings.

For instance, a court may “grant discovery to a defendant on the condition that the material to be discovered be available only to counsel for the defendant.” Mass. R. Crim. P. 14(a)(6); see also id., Reporter’s Notes (“Protective orders are designed for the unusual case in which the granting of discovery will work to the injury of the person whose material is to be discovered or to the injury of some third person.”).

Public access to records of pending litigation can be denied until a final determination of an action is reached. Booth Newspapers, Inc. v. Midland Circuit Judge, 145 Mich. App. 396, 12 Media L. Rep. 1519 (1985). The media does not have the absolute right of access to a court file while litigation is pending. Id. The public has no right to access records until after a trial has commenced in open court. Id.; Schmedding v. Wayne Cty. Clerk, 85 Mich. 1, 48 (1891).

The District Court for the Eastern District of Michigan has noted that Michigan courts have more restrictive rules regarding public access to pretrial discovery materials than do federal courts. In re Consumers Power Co. Sec. Litig., 109 F.R.D. 45, 49-50 (E.D. Mich. 1985).

It does not appear that Minnesota has addressed this issue in the criminal context. In the civil context, however, the Minnesota Supreme Court has declined to endorse any “presumption of privacy” for pretrial discovery materials, leaving any protection to the discretion of the district judge under the “good cause shown” standards of Minn. R. Civ. P. 26.03. In re GlaxoSmithKline, 732 N.W.2d 257, 272 n.11 (Minn. 2007). The Minnesota Supreme Court, in an earlier decision in the GlaxoSmithKline litigation, stated “that documents produced as discovery are not presumed to be public and that district courts have broad discretion to issue protective orders,” but that “district courts presiding over civil actions are directed to weigh ‘policies in favor of openness against the interests of the litigant in sealing the record.’” In re GlaxoSmithKline, 699 N.W.2d 749, 755 (Minn. 2005). These decisions supersede the narrower view of public rights of access to pretrial discovery materials not yet filed with the court, as expressed by the Minnesota Court of Appeals in Star Tribune v. Minnesota Twins Partnership, 659 N.W.2d 287, 295–97 (Minn. Ct. App. 2003) (holding that the public has a common law right to inspect and copy civil court records, but that “private documents generated during discovery that are not filed with the court are not considered ‘judicial records’”). Of course, absent a protective order issued for good cause shown, “nothing precludes a party from voluntarily disclosing discovery documents.” State ex rel. Humphrey v. Philip Morris Inc., 606 N.W.2d 676, 686 (Minn. Ct. App. 2000).

Discovery materials are generally not filed with the court.  If they are, they are open to public inspection.

There is no Nebraska law on access to discovery materials in criminal cases. To the extent discovery materials are filed with the clerk of a court or are offered or received into evidence, they become public records. SeeNeb. Rev. Stat. § 84-712.05 (Reissue 2014) (“The following records, unless publicly disclosed in an open court, open administrative proceeding or open meeting or disclosed by a public entity pursuant to its duties, may be withheld from the public by the lawful custodian of the records”).

Exhibits in criminal cases are constitutionally open to the public unless sealed. Pursuant to NRS Chapter 179, a person may petition the court to seal any such exhibits.

Discovery materials filed with the court are subject to the right of access discussed in “Overcoming a presumption of openness” above.

In New Mexico, discovery materials likely will not become public record unless they are introduced or utilized in open court during criminal or civil proceedings. State ex rel. Bingaman v. Brennan, 1982-NMSC-059, ¶ 13, 98 N.M. 109, 111, 645 P.2d 982, 984 (finding that under the Abuse of Privacy Act, recordings of court ordered wiretaps are not public records unless such recordings are played or utilized in open court in criminal or civil actions). Once they are introduced during criminal or civil proceedings, they become part of the record, and, as such, enjoy the presumption of access by the public. Rule 5-123(A) NMRA.

New York courts’ position on the right of access to discovery materials is less clear.  In People v. Burton, the Appellate Division of the Third Department held that discovery materials are subject to the First Amendment right of access only “[t]o the extent that the documents were submitted in connection with contested motions, the hearing of which were or would be accessible to the news media and the public.” 189 A.D.2d 532, 535, 597 N.Y.S.2d 488, 491 (3d Dep’t 1993).  The court recognized that other discovery materials would be subject to the common law right of access, which requires “those seeking to seal records to show that the public's right of access is outweighed by competing interests.” Id. “Specificity of proof and of judicial findings are required, and a trial court must also consider less drastic alternatives to sealing the records which would adequately serve the competing interests.” Id. As a result, courts have placed some limitations on press access to exhibits that have not yet been admitted into evidence at trial.  See Hearst Corp. v. Vogt, 62 A.D.2d 840, 841–42, 406 N.Y.S.2d 567, 569 (3d Dep’t 1978) (granting press access to review exhibits before their admission at trial, but denying request to copy them citing to protect the defendant’s fair trial rights).

Of course, documents presented only to the judge for in camera review are typically not subject to public access.  See Daily News L.P. v. Teresi, 265 A.D.2d 129, 133–34, 706 N.Y.S.2d 527, 530–31 (2000) (denying access to documents presented during in camera review because
“by definition, an in camera review or inspection is conducted ‘out of the hearing of the public’ and therefore, has not historically been open to the press and general public”) (citations and internal quotations omitted).  Public access would “frustrate the process by providing a defendant with immediate access to the very material that is subject to the disclosure dispute.”  Id.

In North Carolina, criminal discovery is governed by N.C.G.S. 15A-901 to 910. This statute, not the Public Records Act, determines disclosure of discovery materials in criminal cases. The N.C. Supreme Court has held that the criminal discovery statute only provides for discovery by the State or by a defendant in the action. See Piedmont Publ'g Co., Inc. v. City of Winston Salem, 334 N.C. 595, 598 (1993) (denying newspaper access to police telephone and audio recordings gathered in the course of criminal investigation); accord News and Observer Publ'g Co. v. State ex rel. Starling, 312 N.C. 276, 284 (1984) (newspaper not before the court as criminal defendant not entitled to discovery under procedures applicable in criminal cases); cf. News and Observer Co., Inc. v. Poole, 330 N.C. 465 (1992) (where S.B.I. prepared investigative reports for public commission, investigative findings became public records subject to Public Records Law once submitted to commission).

The N.C. Supreme Court has acknowledged that criminal defendants have a constitutional right of access to obtain certain pretrial evidence from the prosecution.

Pretrial discovery in criminal cases does not fit the definition of public record, and denial of access to pretrial discovery is not a violation of the public’s right of access.  See State ex rel. WHIO-TV-7 v. Lowe, 673 N.E.2d 1360, 1363–64 (Ohio 1997).  “Criminal discovery . . . would be frustrated” if discovery materials were subject to disclosure.  Id. at 1364; see also Adams v. Metallica, 758 N.E.2d 286, 291–92 (Ohio Ct. App. 2001) (finding pretrial discovery in civil cases is not public record and, once filed, discovery materials may be sealed from public view if there is good cause).  However, if the pretrial discovery materials are introduced in court as exhibits in a pretrial hearing, the materials are considered court records and are subject to disclosure, unless the trial court determines that disclosure would affect the defendant’s right to a fair trial.  State ex rel. Cincinnati Enquirer v. Dinkelacker, 761 N.E.2d 656 (Ohio Ct. App. 2001).

While Pennsylvania courts have not ruled whether there is right of access to discovery materials in criminal cases, the Pennsylvania Superior Court, in a civil case, has stated that “[a]ccess rights to litigation are at their nadir” during the discovery phase. R.W. v. Hampe, 626 A.2d 1218, 1224 (Pa. Super. 1993) (citation omitted). Proceedings under Pennsylvania Rule of Criminal Procedure 500, which are held for the purposes of preserving the testimony of a witness in anticipation of a criminal trial, are not subject to a First Amendment right of access. Commonwealth v. Selenski, 996 A.2d 494, 499 (Pa. Super. 2010) (holding that there is no right of access to testimony preservation hearing under Pennsylvania Rule of Criminal Procedure 500, and likening such proceedings to discovery depositions.).

In a criminal case, access to discovery materials may be denied when “necessitated by a compelling governmental interest, and [closure] is narrowly tailored to serve that interest.”  State v. Cianci, 496 A.2d 139, 144 (R.I. 1985) (quoting Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 606-07 (1982)).  Addressing the propriety of a protective order concerning pretrial discovery, the Court held that:

A protective order (1) must be narrowly tailored to serve the interests sought to be protected, (2) must be the only reasonable alternative, (3) must permit access to those parts of the record not deemed sensitive, and (4) must be accompanied by the trial justice’s specific findings explaining the necessity for the order.

Cianci, 496 A.2d at 144.  Concluding that such a standard was not satisfied, in Cianci the Rhode Island Supreme Court thus reversed the trial court’s order to seal discovery documents in the state criminal prosecution of a former mayor of Providence.  Id. at 145.

Courts across the country have held that discovery documents that have not been filed with the court traditionally have not been open to the public, and therefore there is no First Amendment-based right of access. When discovery documents are filed with the court, however, they become part of the court record and are presumed to be open for review.

Court records are mandated to be open for public inspection under the South Carolina Freedom of Information Act. Exemptions related to discovery records might include law enforcement records or information of a personal nature. For example, materials that the prosecution provides to defense attorneys often fall under the law enforcement exemption because release could potentially prejudice an ongoing police investigation or affect a defendant’s right to a fair trial.

For more detailed information, see:  https://www.sccourts.org/summaryCourtBenchBook/displaychapter.cfm?chapter=GeneralF.

 

Discovery materials are generally closed. See S.D. Codified Laws § 15-15A-7(i).

There is no public right to criminal discovery materials.  Tennessee’s courts have interpreted Tennessee Rule of Criminal Procedure 16 as exempting criminal discovery from the Tennessee Public Records Act.  See, e.g., Tennessean v. Metro. Gov’t of Nashville, 485 S.W.3d 857, 870-71 (2016) (“the Rules of Criminal Procedure constitute state law exceptions to the Public Records Act. Rule 16, as state law, controls the release of these records and provides for access to these records only to the parties to the criminal case—the State and the defendant. There is no provision in Rule 16 for release of discovery materials to the public”).

The Texas Public Information Act (“PIA”) controls the disclosure of public information held by law enforcement authorities.  However, information relating to the detection, investigation, or prosecution of crimes that is held by prosecutors or other law enforcement agencies is exempt from public disclosure under the PIA if (1) the disclosure would interfere with law enforcement activities; (2) the information deals with a case where there was no conviction or deferred prosecution; (3) the information relates to a threat against a peace officer or detention officer; or (4) it is a state’s attorney’s work product.  See Tex. Gov’t. Code § 552.108(a).

Generally, the defense may not publicly disclose any discovery materials produced by the state, unless those materials are already public, or the court orders public disclosure after a hearing and upon a showing of good cause, considering the privacy interests of the victim or witness.  See Tex. Code Crim. Proc. Ann. art. 39.14(e).

The general presumption in favor of the right of public access presumably applies to filed discovery materials in criminal proceedings.  See Tillotson v. Van Nederveen Meerkerk, 2015 UT App 142, ¶ 6,353 P.3d 165 (“‘[C]ourt records are public unless otherwise classified by [] rule.’” (quoting Utah Code Jud. Admin. 4-202.02(1)); cf. Carter v. Utah Power & Light Co., 800 P.2d 1095, 1098-1100 (Utah 1990) (pretrial discovery materials, once filed, are “presumptively public” in civil context).

However, Utah Rule of Criminal Procedure 16(e) states, in relevant part:

The prosecutor or defense may impose reasonable limitations on the further dissemination of sensitive information otherwise subject to discovery to prevent improper use of the information or to protect victims and witnesses from harassment, abuse or undue invasion of privacy, including limitations on the further dissemination of recorded interviews, photographs, or psychological or medical reports.

In addition, upon motion by a party, the court may permit the party to make a showing, “in whole or in part, in the form of a written statement to be inspected by the judge alone,” that relief concerning the permissible scope and dissemination of discovery be granted.

Utah R. Crim. P. 16(d).

“If the court enters an order granting relief following such an ex parte showing, the entire text of the party’s statement shall be sealed and preserved in the records of the court to be made available to the appellate court in the event of an appeal.”

Id.

The Vermont Rules for Public Access to Court Records contain an exception to the general right of public access for “[r]ecords produced or created in connection with discovery in a case in court, including a deposition, unless used by a party (i) at trial or (ii) in connection with a request for action by the court.”  Vt. Pub. Acc. Ct. Rec. Rule 6(b)(9); see also Herald Ass’n v. Judicial Conduct Bd., 149 Vt. 233, 239, 544 A.2d 596, 600 (Vt. 1988) (denying access to discovery material in the possession of, but not filed with, the Judicial Conduct Board).

The Vermont Supreme Court recently held that a court’s decision granting a motion to quash a subpoena issued in the context of a criminal inquest is a judicial case record that is presumptively subject to public disclosure under the Vermont Rules for Access to Court Records.  In re Vsp-Tk/1-16-18 Shooting Gray TV, 2019 VT 47 ¶ 9 (July 19, 2019).

Pursuant to V.R.C.P. 5(d), most discovery requests and responses are not filed unless they will be used in a proceeding and, in practice, most discovery records are not introduced into evidence in the case. “Because these records are not considered by the court in resolving contested issues in the case, and are now considered to be private rather than public, they are not subject to the general rule on disclosure of court records. However, any discovery that is used in the case will be open under this section.”  Reporter’s Notes, Vt. Pub. Acc. Ct. Rec. Rule 6.

Discovery materials exchanged between parties are not judicial records to which a right of access attaches unless and until they are filed with the court. See Shenandoah Pub. House, Inc. v. Fanning, 235 Va. 253, 262 n.3, 368 S.E.2d 253, 257 n.3 (1988) (no common law right of access to documents not filed with the court); In re Times-World Corp., 25 Va. App. 405, 419, 488 S.E.2d 677, 684 (Va. Ct. App. 1997) (“We have held that the media does not have a constitutional right of access to documents produced by parties through discovery in a criminal matter.  The documents here, however, are not unfiled discovery documents but were admitted into evidence in a proceeding that should have been open to the public.”); Commonwealth v. Schwartz, 59 Va. Cir. 195, 2002 WL 31989074, *1 (Loudoun Cir. Ct. July 1, 2002) (“Materials returned in response to the subpoena, unless introduced into evidence, are not subject to public disclosure.”); Commonwealth v. Robinson, 3 Va. Cir. 196, 1984 WL 569929, *2 (Alexandria Cir. Ct. May 3, 1984) (“[T]here is no requirement that discovery materials be filed and if not filed are not subject to access by either the public or the media.”); Commonwealth v. Starkey, 26 Va. Cir. 199, 1992 WL 884421, *1 (Loudoun Cir. Ct. Jan. 8, 1992) (“There is simply no requirement for the filing of most pretrial discovery responses, and thus no right of access.”).  

The state constitution does not entitle the public to access unfiled discovery materials.  Discovery materials may be sealed after a showing of “good cause,” which is less stringent than the Bone-Club/Ishikawa standard.  See Dreiling v. Jain, 151 Wn.2d 900, 909–10, 93 P.3d 861 (2004); Rufer v. Abbott Labs., 154 Wn.2d 530, 541 114 P.3d 1182 (2005).

While there is no West Virginia case law on point, courts across the country have held that unfiled discovery documents have not traditionally been open to the public, and therefore there is no First Amendment-based right of access.  When discovery documents are filed with the court, however, they become part of the court record and are presumed to be open for review.  Court records are mandated to be open for public inspection under the Freedom of Information Act.  Associated Press v. Canterbury, 224 W. Va. 708, 688 S.E.2d 317 (2009). Public access to court records also is guaranteed by the open courts provision of the state constitution (W. Va. Const. art. III, § 17) and by state statute (W. Va. Code § 51-4-2.)  A trial court may limit this right of access only if there is a compelling countervailing public interest and sealing of the court records is required to protect that interest.  State ex rel. Garden State Newspapers v. Hoke, 205 W. Va. 611, 621, 520 S.E.2d 186, 196 (1999).

Certain categories of court records are confidential according to statute: court records relating to divorce (W. Va. Code § 48-1-303 (2019)), adoption (W. Va. Code § 48-22-702 (2010)), juvenile records (W. Va. Code § 49-4-103 (2015), tax information (W. Va. Code § 11-10-5D (2018)), and economic development assistance (W. Va. Code § 5B-2-1 (1997)).

Deposition transcripts that are not filed with the Court are generally found not to be public.