F. Other proceedings

This will vary by jurisdiction, though some courts have held that arbitration awards and records filed with the court are presumptively open court documents. For example, the Sixth Circuit held that “settlement agreements and arbitrations are private documents subject to a right of access only when filed in the court record.” United States v. Miami Univ., 294 F.3d 797, 822-23 (6th Cir. 2002) (citing Jessup v. Luther, 277 F.3d 926, 928-29 (7th Cir. 2002)).

False Claims Act Proceedings 

The False Claims Act, 31 U.S.C. § 3730(b), allows individuals to bring qui tam actions on behalf of the government. The statute provides that “[t]he complaint shall be filed in camera, shall remain under seal for at least 60 days, and shall not be served on the defendant until the court so orders.” Still, the statute contemplates that the suits will eventually become public. In Under Seal v. Under Seal, 27 F.3d 564, 564 (4th Cir. 1994) (unpublished), the Fourth Circuit found that a trial court acted within its discretion in “refusing to impose a permanent seal on a qui tam complaint” in part because of the “long-established common law right of access to judicial records filed in court.”

The False Claims Act, 31 U.S.C. § 3730(b), allows individuals to bring qui tam actions on behalf of the government. The statute provides that “[t]he complaint shall be filed in camera, shall remain under seal for at least 60 days, and shall not be served on the defendant until the court so orders.” Still, the statute contemplates that the suits will eventually become public.

No reported First Circuit cases identified.

In at least one instance, the right of access has been extended to some administrative hearings.  See, e.g., N.Y. Civil Liberties Union v. N.Y.C. Transit Auth., 684 F.3d 286, 301 (2d Cir. 2012) (holding there was a qualified right of public access to Transit Adjudication Bureau (TAB) hearings conducted by New York City Transit Authority.)

The Third Circuit ruled that state-sponsored arbitration proceedings for business disputes were sufficiently similar to civil trials to be subject to the First Amendment right of access. Del. Coal. for Open Gov’t, Inc. v. Strine, 733 F.3d 510, 521 (3d Cir. 2013).

However, local district rules within the Third Circuit allow parties to conduct annexed mediation and other alternate dispute resolution programs in private. See, e.g., Local Rule 15(5)(c) (E.D. Pa.) (“All proceedings at any mediation conference authorized by this Rule (including any statement made by a party, attorney or other participants) shall not be reported, recorded, placed in evidence, made known to the trial court or jury, or construed for any purpose as an admission.”).

The public has a First Amendment right to attend a creditors’ meeting held in connection with a bankruptcy proceeding. See In re Astri Inv., Mgmt. & Sec. Corp., 88 B.R. 730, 741–42 (D. Md. 1988) (vacating order closing creditors’ meeting to newspaper reporter).

Nothing found specific to the Fifth Circuit.

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.

The Colorado Judicial Department’s Public Access to Court Records policy (“Public Access Policy”) (pdf) excludes from public access certain case classes and case types, absent a court order. Those case classes and case types include: (1) adoption, (2) dependency and neglect, (3) judicial bypass, (4) juvenile delinquency, (5) mental health, (6) paternity, (7) probate protected proceedings, (8) relinquishment, and (9) truancy. (See Section 4.60(b).)

In 2018, Georgia voters approved a constitutional amendment authorizing creation of a statewide business court, which began operation in 2020.  Records and proceedings of the court are presumptively subject to public inspection pursuant to rules that largely track those that apply to the state’s courts of general jurisdiction.  See Georgia State-wide Business Court Rules 15-16.

In 2020, guided by a pandemic bench book that the state’s judiciary had the foresight to have created over a decade before, Georgia’s courts reacted swiftly and decisively to COVID-19, immediately authorizing and implementing online tools and virtual proceedings that kept Georgia’s courts open and accessible not only for judges, lawyers and litigants but also for journalists and the public.  See, e.g., March 27, 2020 Order Temporarily/Clarifying Waiving Superior Court Rules Related to Video (providing for meaningful public notice and an opportunity to attend virtual court proceedings).

Pursuant to New Mexico law and effective January 1, 2020, each of the following documents is a public record open to public inspection during regular office hours in the office which the document was filed or from which it was issued:

“(1) a statement of no activity;

(2) a report of expenditures and contributions;

(3) an advisory opinion issued by the state ethics commission; except for the name of the person who requested the opinion;

(4) a document specified as a public record in the Campaign Reporting Act; and

(5) an arbitration decision issued by an arbitration panel and filed with the secretary of state or state ethics commission.”

NMSA 1978, § 1-19-32.

New Mexico courts have not addressed whether suits brought pursuant to the False Claims Act will eventually become public. As of 2007, however, “upon motion of the attorney general or political subdivision, a court may, in its discretion, dismiss an action brought pursuant to Section 44-9-5 NMSA 1978 if the elements of the alleged false or fraudulent claim have been publicly disclosed in the news media or in a publicly disseminated governmental report at the time the complaint is filed.” NMSA 1978, § 44-9-9.

Divorce hearings are presumptively open, but “are the type of proceedings which courts may close to protect the rights of the parties.” Katz v. Katz, 514 A.2d 1374, 1380 (Pa. Super. 1986); see also R.W. v. Hampe, 626 A.2d 1218, 1222 (Pa. Super. 1993) (“Divorce cases present one exception to the general rule of openness. The subject matter of divorce litigation serves, in many cases, ‘only to embarrass and humiliate’ the litigants.” (citation omitted)).

The Superior Court has held that when “parties in a custody proceeding stipulate to declare a [temporary protection from abuse order] null and void, the target of the TPFA is entitled to expungement” of that order. G.P.M. v. A.M.F., 2018 Pa. Super. Unpub. LEXIS 4890, at * 6 (Pa. Super. December 31, 2018).

Treatment Courts: South Carolina has adult drug courts, juvenile drug courts, mental health courts, and veterans treatment courts that divert non-violent offenders with alcohol, substance abuse or mental health issues to individualized rehabilitation and treatment. These treatment courts are administered by county or judicial circuits and can be administered by circuit court, family court, probate court, master-in-equity, and magistrate court judges. To determine what court and which judge is administering the treatment court go to https://www.sccourts.org/courtOrders/indexAdmin.cfm to find the South Carolina Supreme Court administrative order that establishes the treatment court and assigns the presiding judge.

Records of drug court, mental health court, and veterans’ treatment court participants are confidential and must not be disclosed unless provided under S.C. Code Ann. § 44-22-100(A); see also 42 U.S.C. Section 290dd-2.

A judicial recount pursuant to Virginia Code § 24.2-800, et seq. is a judicial proceeding to which the public has a presumptive right of access. See Joshua G. Colev. Robert M. “Bob” Thomas, Jr., Civil Action No. CL17-2475-00, Order at 1 (Stafford County Cir. Ct. Dec. 21, 2017); see also Penick v. Ratcliffe, 149 Va. 618, 140 S.E. 664 (1927) (holding that a statutory action seeking a recount in a primary election constitutes a judicial proceeding).