G. Post-trial records

The Supreme Court has not directly addressed this subject, but it has noted that “the courts of this country recognize a general right to inspect and copy public records and documents, including judicial records and documents.” Nixon v. Warner Commc’ns, Inc., 435 U.S. 589, 597 (1978).

The Tenth Circuit has noted that there is generally a “right of access to judicial records.” United States v. Apperson, 642 Fed. Appx. 892, 898 (10th Cir. 2016) (quoting Mann v. Boatright, 477 F.3d 1140, 1149 (10th Cir. 2007) (internal quotation marks omitted)).

Although the Eleventh Circuit has not held that the First Amendment or common law right of access extends to post-trial records in civil cases, it has held that the First Amendment right of access extends to “post-trial” enforcement proceedings in a civil case pertaining to the release or incarceration of prisoners and the conditions of their confinement.  Newman v. Graddick, 696 F.2d 796, 801 (11th Cir. 1983). This suggests that related court records would also be presumptively open.

In addition, courts in the Eleventh Circuit have recognized a right of access to post-trial records in criminal cases. See United States v. Miller, 579 F. Supp. 862, 865 (citing with approval United States v. Carpentier, 526 F. Supp. 292, 295 (E.D.N.Y. 1981)); see also United States v. Ignasiak, 667 F.3d 1217, 1237-239 (11th Cir. 2012); see also Jackson v. Deen, No. CV412–139., 2013 WL 2027398, *14 (S.D. Ga 2013). The Eleventh Circuit has also recognized that the right of access to a court record in a criminal proceeding also extends to a civil proceeding. See F.T.C. v. AbbVie Prods. LLC, 713 F.3d 54, 62 (11th Cir. 2013) (citing Chicago Tribune Co. v.  Bridgestone/Firestone, Inc., 263 F.3d 1304, 1311 (11th Cir. 2001)). Thus, while there is no definitive Eleventh Circuit recognition of the right of access to post-trial records in civil cases, it can be inferred that this right likely exists.

No reported First Circuit cases identified.

The Second Circuit has not addressed this matter specifically; however, at least one other Circuit Court has found that such a right exists.  See Newman v. Graddick, 696 F.2d 796, 801 (11th Cir. 1983) (recognizing a constitutional right of access to post-trial proceedings in a civil case dealing with prisoners’ rights).

The Third Circuit has not yet specifically addressed whether there is a right of access to post-trial records in civil cases.

A district court denied a motion to seal portions of the parties’ respective post-trial briefs and proposed findings of fact and conclusions of law because the purportedly confidential information in those pleadings was publicly disclosed during the trial. Reetz v. Lowe’s Companies, Inc., No. 518CV00075KDBDCK, 2021 WL 3354167, *2 (W.D.N.C. Aug. 2, 2021) (“In light of this full disclosure during trial, the Court is unwilling to now grant the Lowe’s Defendants’ request to, in effect, try to put the genie back in the bottle.”).

Nothing found specific to the Fifth Circuit.

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.

Even though in-chambers hearings on implementation of institutional reform consent decree would not be open to the press and public, “any proceedings on the merits of this case will continue to be held in open court,” and “the public will have access to records of the in-chambers conferences. . . .” B.H. v. McDonald, 49 F.3d 294, 299 (7th Cir. 1995).

There appears to be no Eighth Circuit case law discussing the right of access to post-trial civil records.

Subject to the provisions of Holland v. Eads, 614 So. 2d 1012, 1016 (Ala. 1993), post-trial records should be available to the public.

The state has not addressed the issue of post-trial records specifically, but the case law applying a constitutional and/or common law right of access to judicial proceedings and records, and court rules like Alaska Admin. R. 37.5, presumably apply to openness of all court records. One issue to watch out for is the possibility that certain records, particularly exhibits, may no longer be available after a trial.  Court rules or common practice, or orders entered by a court at the conclusion of a trial or—like many protective orders entered earlier in the case with provisions that take effect at the close of proceedings—may require the return of documents, particularly exhibits, to the party that submitted them. (These, in turn, may be presumptively subject to return to the party that initially produced them pursuant to the terms of a protective order.)  For this reason, it is highly desirable, and most often necessary, to seek access to any such documents while they are still in the actual or constructive possession of the court—or at the very least still in the possession of parties, though that may be insufficient.  Waiting too long may preclude access to documents if the court concludes that it no longer has the ability to address the issue and afford the relief sought in a motion for access to judicial records, because they are no longer judicial records.  It is better to obtain trial exhibits as they are admitted, or promptly at the conclusion of a trial, than to take a chance that they will be available later.  Where public agencies are involved in the litigation, it may be possible to obtain such documents as public records—but this may be problematic for other reasons, including the fact that documents that might be obtained as judicial records because they have been used in court proceedings may fall within exceptions from disclosure requirements of public records law.  And, a constitutional right of access presumably provides a stronger basis for seeking disclosure, through the courts, than a statutory right of access applicable to records sought from executive branch agencies through a public records act request.

No published decisions.

California appellate courts have not considered whether the constitutional presumption of access applies to civil post-trial records. However, California courts have applied the presumption of access to court records in all other phases of civil litigation. See, e.g., McNair v. Nat’l Collegiate Athletic Ass’n, 234 Cal. App. 4th 25, 29, 183 Cal. Rptr. 3d 490 (2015) (mandating access to pre-trial papers lodged as part of an appellate record); Kirk v. Ratner, 74 Cal. App. 5th 1052, 1056 n.2, 290 Cal. Rptr. 3d 207 (2022) (ordering trial court record, as filed in court of appeal, unsealed subject to limited redactions); State Water Resources Control Bd. v. Baldwin & Sons, Inc., 45 Cal. App. 5th 40, 66-67, 258 Cal. Rptr. 3d 425 (2020) (reversing order conditionally sealing certificate of interested parties). Thus, the presumptive right of access should apply to civil post-trial records, so long as those records are substantive and “submitted as a basis for adjudication.” Id. at 39.

The Colorado Judicial Department’s Public Access to Court Records policy (“Public Access Policy”) (pdf) expressly applies to “all electronically filed (e-filed) or served (e-service) documents in accordance with the rules of the Supreme Court . . . .” (Section 4.00.)  In general, all “[i]nformation in the court record is accessible to the public,” and “court record” is broadly defined.  (Section 3.03(a); Section 4.10.)  The Public Access Policy restricts access to records in certain types of cases or to certain documents, absent a contrary court order.  (Section 4.60.)

Post-trial records are like any other filing: in both state and federal court, the First Amendment provides a strong presumption of public access to documents filed in civil cases “that directly affect an adjudication;” these are referred to as “judicial documents.”  United States v. Amodeo, 71 F.3d 1044, 1049 (2d Cir. 1995).  Records of that type may be sealed only if “specific, on the record findings are made demonstrating that [sealing] is essential to preserve higher values and is narrowly tailored to serve that interest,” provided that the “right of access cannot be overcome by the conclusory assertion that publicity might deprive the defendant of the right to a fair trial.”  In re New York Times Co., 828 F.2d 110, 116 (2d Cir. 1987) (internal quotations and alterations omitted).

After the settlement of a civil rights class action brought by African-American firefighters, the plaintiff class was not entitled to review materials filed under seal regarding distribution of settlement funds to individual class members under the public's right of access. Hammon v. Kelly, 154 F.R.D. 11 (D.D.C. 1994).

Post-trial records are encompassed by Barron and Florida's constitutional right of access to court records. Such records may only be closed consistent with Florida Rule of Judicial Administration 2.420 and by meeting the test under Barron v. Florida Freedom Newspapers, Inc., 531 So. 2d 113, 116 (Fla. 1988).

Rule 21 of the Uniform Superior Court Rules makes “all” court records presumptively available to the public, including post-trial records. See, e.g., Atlanta Journal-Constitution v. Long, 259 Ga. 23, 24 (1989) (vacating an order sealing from public access “all pleadings and discovery, either pre-trial or post-trial, for the duration of the records’ existence”).

Idaho Courts Administrative Rule 32 does not expressly mention any civil post-trial motions or records.  Instead, Rule 32(d)(7)’s general provision that access is allowed to “[p]leadings, motions, affidavits, responses, memoranda, briefs and other documents filed or lodged in a case file” should apply.

There appears to be no reported Illinois case law on this issue.

Post-trial records are open to public access unless Administrative Rule 9(G) excludes them. Ind. Admin. Rule 9(D)(1).

Generally, court records filed in the office of the clerk of court are public records open to inspection under Iowa Code Chapter 22. In Iowa, “[e]very person shall have the right to examine and copy a public record and to publish or otherwise disseminate a public record or the information contained in a public record.” Iowa Code § 22.2 (2018). Certain records, such as minutes of testimony that accompany a county attorney’s information, are confidential by court rule.

A presumption of openness applies to post-trial records in civil cases under the Kansas Open Records Act, 45-215 et seq., as implemented by the Kansas Judicial Branch.  See Kansas Judicial Branch, Administrative Order No. 156, Administration of the Kansas Open Records Act, http://www.kscourts.org/kansas-courts/supreme-court/administrative-orders/Admin-order-156.pdf.

Presumptively open. See Courier-Journal & Louisville Times Co. v. Peers, 747 S.W.2d 125 (Ky. 1988); Fiorella v. Paxton Media Grp., LLC, 424 S.W.3d 433, 439 (Ky. Ct. App. 2014) (“presumption of openness” applies to “everything filed with the courts”).

There should be no different standards for access to post-trial records than for access to pre-trial records. See “Pretrial motions and records” section above. Typically, such records are obtained simply by going to the clerk’s office (or the judge’s chambers) and asking for the record.

Post-trial motions and records filed with the court are open to the public.

There are no judicial decisions, rules, or statutes related specifically to access to post-trial records. Nevertheless, in Baltimore Sun Co. v. Mayor & City Council of Baltimore, 755 A.2d 1130, 1134 (Md. 2000), the Court of Appeals declared broadly that the “common law principle of openness is not limited to the trial itself, but applies generally to court proceedings and documents.”

Like the U.S. Supreme Court, Massachusetts courts have not explicitly addressed the right of public access to all types of post-trial records. Generally, where the Supreme Court and Massachusetts courts have not yet decided whether there is a right of access to a certain type of record, Massachusetts courts will make this determination based on the type of proceeding associated with the records; if there is a right of access to the proceeding, then the court would likely afford the same access to the records. See, e.g., Newspapers of New England, Inc. v. Clerk-Magistrate, 531 N.E.2d 1261, 1265 (Mass. 1988) (citing Press–Enterprise II, 478 U.S. at 8; Press–Enterprise I, 464 U.S. at 513).

Michigan courts have not specifically ruled on whether the public has access to all post-trial records. However, when determining whether the public has a right to a particular record connected to a judicial proceeding, Michigan courts have used the Press Enterprise test, which looks first at whether the “place and process at issue have historically been open to the press and general public,” and second to “whether public access plays a significant positive role in the functioning of the particular process in question.” Detroit News, Inc. v. Recorder’s Court Judge, 509 N.W.2d 894, 896 (Mich. App. 1993) (quoting Press Enterprise Co. v. Superior Court, 478 U.S. 1, 13, 106 S.Ct. 2735, 2742 (1986)).

Though Minnesota courts have not specifically addressed whether the public has a constitutional right of access to post-trial records, the Minnesota Supreme Court has adopted The Rules of Public Access to Records of the Judicial Branch, which provide that as a general policy, the “[r]ecords of all courts and court administrators … are presumed to be open to any member of the public for inspection or copying at all times during the regular office hours.” Minn. R. Pub. Access Rec’ds. Jud. Br. 2. “Records” are defined as “any recorded information that is collected, created, received, maintained or disseminated by a court or court administrator.” Id. 3, subd. 5. Rules 7 and 8 dictate the procedure for requesting access, which is straightforward and does not require the payment of a fee unless otherwise established by statute; however, when copies are requested, the custodian may charge a copy fee. Id. 8; subd. 6.

All post-trial records are open to the public unless the trial is closed.

Post-trial records are presumed open unless sealed by the court. The Nevada Rules for Sealing and Redacting Court Records promulgated by the Nevada Supreme Court provide that “[a]ll court records in civil actions are available to the public, except as otherwise provided in these rules.”  SRCR 1(3).   For purposes of this rule, the term “court record” includes, but is not limited to any document, information, exhibit, or other thing that is maintained by a court in connection with a judicial proceeding; and any index, calendar, docket, register of actions, official record of the proceedings, order, decree, judgment, minute, and any information in a case management system created or prepared by the court that is related to a judicial proceeding.  SRCR 2(2).

The right of access, discussed in “Overcoming a presumption of openness” above, applies to post-trial records.

Rule 1-079 NMRA dictates that “court records are subject to public access unless sealed by order of the court or otherwise protected from disclosure under the provisions of this rule.” Because “court record” is defined as “all or any portion of a document, paper, exhibit, transcript, or other material filed or lodged with the court, and the register of actions and docket entries used by the court to document the activity in a case,” it follows that post-trial records are allowed the same presumption to public access. As such, post-trial records shall be open to the public absent statutory exclusion, see NMSA 1978, § 32A-58(C); NMSA 1978, § 24-1-15(J); NMSA 1978, § 24-2B-5.1(B); and NMSA 1978, § 40-11A-625, or a court order to the contrary. The order must set forth the court’s findings that:

“(a) the existence of an overriding interest that overcomes the right of public access to the court record;

(b) the overriding interest supports sealing the court record;

(c) a substantial probability exists that the overriding interest will be prejudiced if the court record is not sealed;

(d) the proposed sealing is narrowly tailored; and

(e) no less restrictive means exist to achieve the overriding interest.”

Rule 1-079.

The order shall require the sealing of the record only to the extent necessary. Id. The order shall further specify who is authorized to have access to the sealed court record and a date or event upon which it expires or shall explicitly state that the order remains in effect until further order of the court. The order shall specify any person or entity entitled to notice of any future motion to unseal the court record or modify the sealing order. Id.

New York courts have not yet addressed the right of access to post-trial records in civil matters.

Court records related to the following are confidential: (1) Juvenile court proceedings; (2) Mental health commitment proceedings; (3) Social security numbers; credit, debit, or electronic fund transfer card numbers; and financial account numbers; (4)  Adoption and paternity proceedings; (5)  Domestic violence protection order files - except for the final order of the court; (6) Psychological evaluations and drug and alcohol treatment records; (7) The property and debt listing of the parties to a divorce as provided by N.D.C.C. § 14-05-24.3; (8) Documents filed with the court for in-camera examination pending disclosure; (9) Case information and documents in Child Relinquishment to Identified Adoptive Parent cases brought under N.D.C.C. ch. 14-15.1; (10) names of qualified or summoned jurors and contents of jury qualification forms if disclosure is prohibited or restricted by order of the court; (11) judge and court personnel work material, including personal calendars, communications from law clerks, bench memoranda, notes, work in progress, draft documents and non-finalized documents; (12) party, witness and crime victim contact information gathered and recorded by the court for administrative purposes, including telephone numbers and e-mail, street and postal addresses; and (13) the name of a patron of the North Dakota Legal Self Help Center or information sufficient to identify a patron or the subject about which a patron requested information.

The Rules of Superintendence for the Courts of Ohio define “case document” as “a document and information in a document submitted to a court or filed with a clerk of court in a judicial action or proceeding, including exhibits, pleadings, motions, orders, and judgments…,” subject to certain exclusions.  Sup.R. 44(C)(1)–(C)(2).  These documents are presumptively open to the public.  Sup.R. 45(A).  The Court shall restrict public access to these documents if it finds by clear and convincing evidence that “the presumption of allowing public access is outweighed by a higher interest.”  Sup.R. 45(E)(2).

There is a presumptive right of access to judicial records filed in post-trial proceedings. See, e.g., Commonwealth v. Martinez, 917 A.2d 856, 860 (Pa. Super. 2007).

Rhode Island Courts have not addressed the extent to which post-trial records are subject to public access.

The South Carolina Freedom of Information Act, S.C. Code Ann. § 30-4-10 et. seq. protects rights of access to post-trial records, and all filed post-trial records are available through each county’s public index website. A link to each county public index webpage can be found at https://www.sccourts.org/caseSearch/.

Although Tennessee courts have not specifically addressed the right of access to post-trial records in civil cases, the Tennessee Supreme Court has generally “recognized a qualified right of the public, founded in the common law and the First Amendment to the United States Constitution to attend judicial proceedings and to examine the documents generated in those proceedings.”  Knoxville News-Sentinel v. Huskey, 982 S.W.2d 359, 362 (Tenn. Crim. App. 1998) (citing Ballard v. Herzke, 924 S.W.2d 652, 661 (Tenn. 1996); see also Kocher v. Bearden, 546 S.W.3d 78, 85 (Tenn. Ct. App. 2017) (same).  Pursuant to these rights, “judicial records are … presumptively open.”  Autin v. Goetz, 524 S.W.3d 617, 619 (Tenn. Ct. App. 2017) (citations omitted).  This presumption of openness applies with even more force when the documents are “filed in connection with a dispositive motion.”  In re NHC-Nashville Fire Litigation, 293 S.W. 3d 547, 571 (Tenn. Ct. App. 2008).

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.  The interest is to be articulated with findings specific enough that a reviewing court can determine whether the closure order was properly entered.

State v. Drake, 701 S.W.2d 604, 607 (Tenn. 1985) (quoting Waller, 467 U.S. at 45).

Posttrial motions fit within the definition of “court records” for purposes of the presumption of access recognized in Rule 76a.  See Tex. R. Civ. P. 76a(2)(a).

The general presumption in favor of the right of public access presumably applies equally to post-trial records in civil cases.  See United States v. McVeigh, 119 F.3d 806, 811 (10th Cir. 1997) (“It is clearly established that court documents are covered by a common law right of access.  Under that doctrine, judicial documents are presumptively available to the public, but may be sealed if the right to access is outweighed by the interests favoring nondisclosure.”); Soc’y of Pro. Journalists v. Briggs, 675 F. Supp. 1308, 1310 (D. Utah 1987) (“This court agrees and holds that there is a constitutional right of access to public documents.”); State v. Archuleta, 857 P.2d 234 (Utah 1993) (First Amendment right of access to court records filed in connection with preliminary hearing); Utah Code § 63G-2-301(2)(f) (“judicial records” are presumptively public under GRAMA); Utah Code Jud. Admin. 4-202.02(1) (“Court records are public unless otherwise classified by this rule.”); see also Lafferty v. Bigelow, No. 2:07-CV-322 (D. Utah Jan. 9, 2014) (granting media intervenors’ motion to unseal records and to disclose unrecorded docket entries); DUCivR 5-2(a) (“The records of the court are presumptively open to the public.”).

See “In general” section.

Vermont Rule of Civil Procedure 79.3 provides that “[v]ideo recordings of public proceedings are public records, unless otherwise protected from disclosure by law or by order of the court. Duplicated copies may be ordered at the conclusion of a trial, or at any time by a party.”  V.R.C.P. Rule 79.3(f).

The public’s right of access to court proceedings includes the right of access to case records, and any limitations are subject to the five-factor Bone-Club/Ishikawa test.  Dreiling v. Jain, 151 Wn.2d 900, 915, 93 P.3d 861, 870 (2004).

As set forth above, both the West Virginia Constitution and statutes provide a presumptive right of public access to court records.  See “Access to civil records/In general” above.  This rule applies to post-trial records.  See State ex rel. Garden State Newspapers, Inc. v. Hoke, 205 W. Va. 611, 616, 520 S.E.2d 186, 191 (1999).

Post-trial records are presumed open to the public unless subject to closure in accordance with the court rules.