H. Appellate records

The Supreme Court has not addressed the issue, but the Seventh Circuit noted that parties to a civil appeal “must file public briefs” because “[j]udicial proceedings in the United States are open to the public — in criminal cases by constitutional command, and in civil cases by force of tradition.” In re Krynicki, 983 F.2d 74, 75 (7th Cir. 1992).

The Eleventh Circuit has not held generally that the First Amendment right extends to appellate records.

Appellate records are public.  In the First Circuit, the procedure for moving to seal court of appeals materials not already sealed in the district court is specified in Local Rule 11.0(c)(2).  That Rule provides, among other things, “A motion to seal, which should not itself be filed under seal, must explain the basis for sealing and specify the desired duration of the sealing order. If discussion of confidential material is necessary to support the motion to seal, that discussion shall be confined to an affidavit or declaration, which may be filed provisionally under seal.”

The Second Circuit has not addressed access to appellate records specifically. However, there exists the presumption that access is entitled to great weight if a party submits the document to the court for purposes of adjudication. Lugosch v. Pyramid Co., 435 F.3d 110, 114 (2d Cir. 2006). As the Second Circuit explained, once a document is submitted to the court, the public should be able to assess the correctness of the judge's decision, and "documents that the judge should have considered or relied upon, but did not, are just as deserving of disclosure as those that actually entered into the judge's decision." Id.; see also Bernsten v. O'Reilly, 2018 U.S. Dist. LEXIS 70313, at *3 (S.D.N.Y. Apr. 3, 2018). Therefore, according to the Court of Appeals, documents submitted to the Court for purposes of adjudication, should not remain under seal "absent the most compelling reasons." Id.; see also Cianci v. New Times Publishing Co., 88 F.R.D. 562, 565 (S.D.N.Y. 1980) (holding that in light of the parties' use of sealed documents in their arguments relating to defendants' motion to dismiss and reference to sealed deposition testimony by the trial court and the appellate court, the documents had become part of the public record and the press could not be denied access to them).

The Third Circuit’s local rules prohibit including the names of minor children in any document filed with the court.  If identifying the minor is necessary, the minor may only be identified with initials. Local App. R. Misc. 113.12(2) (3d Cir.).

The Third Circuit has not specifically addressed whether there is a First Amendment or common law right of access to civil appellate records.

However, in Wartluft v. Milton Hershey School & School Trust, a civil appeal that was argued before the Third Circuit when arguments were conducted remotely during the Covid-19 pandemic, the court initially granted a party’s requests that the oral argument not be live streamed online, that no recording of the oral argument be posted on the court’s website, and that the transcript be sealed. The court subsequently granted a motion to unseal the transcript and oral argument recording in a summary order.  See Order at 12, Wartluft v. Milton Hershey Sch. & Sch. Tr., No. 20-1753, ECF 61 (3d Cir. Jan. 25, 2021).

The public’s First Amendment right of access extends to appellate proceedings and records, although the presumption of access can be overcome by a compelling governmental interest. See United States v. Moussaoui, 65 F. App’x 881 (4th Cir. 2003).

If the court concludes that sealing is warranted, the court may file its statement of the reasons for its decision under seal. In re Wash. Post Co., 807 F.2d 383, 391 (4th Cir. 1986) (citation omitted); see also United States v. Adams, 788 F.3d 115 (4th Cir. 2015) (appellate decision issued under seal).

Nothing found specific to the Fifth Circuit. Although, anecdotally, the Fifth Circuit has received and granted motions to seal briefs in extraordinary circumstances. See B.P. Expl. & Prod. v. Claimant ID 100246928, 920 F.3d 209, 210, 212 (5th Cir. 2019) (noting that “the Buccaneers succeeded in keeping the record and briefs sealed based on its concerns that the amount of revenue it receives from the NFL . . . is proprietary”). And generally, records that have been sealed in the trial court will remain sealed on appeal.

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

“Information transmitted to the court of appeals is presumptively public because the appellate record normally is vital to the case's outcome. Agreements that were appropriate at the discovery stage are no longer appropriate for the few documents that determine the resolution of an appeal, so any claim of secrecy must be reviewed independently in this court.”  Baxter International, Inc. v. Abbott Laboratories, 297 F.3d 544, 545-46 (7th Cir. 2002) (citing Seventh Circuit Operating Procedure 10). “We recognize only three classes of material subject to seal: trade secrets, information covered by a recognized privilege, and information required by statute to be maintained in confidence. . . . If the material in question falls into one of these three categories, then the two competing interests to be weighed by the court are the moving party's interest in privacy and the public's interest in transparency.” United States v. Sanford-Brown, Ltd., 788 F.3d 696, 712 (7th Cir. 2015), vacated on other grounds, 136 S. Ct. 2506 (2016), opinion reinstated in relevant part on remand, 840 F.3d 445 (7th Cir. 2016) (citing Baxter, at 546).  The public's interest in the judicial record is “especially acute” where “the government has subsidized the good or service underlying the litigation from the public fisc” and a party “subsidized by the public fisc and that seeks to seal portions of the record must satisfy a higher burden. . . .”  Id. at 712-13.

The Seventh Circuit will “deny outright any motion under Operating Procedure 10 that does not analyze in detail, document by document, the propriety of secrecy, providing reasons and legal citations. Motions that represent serious efforts to apply the governing rules will be entertained favorably, and counsel will be offered the opportunity to repair shortcomings. Motions that simply assert a conclusion without the required reasoning, however, have no prospect of success.”  Baxter, 297 F.3d at 548; see also Union Oil Co. of California v. Leavell, 220 F.3d 562, 567 (7th Cir. 2000) (refusing request to seal all briefs on appeal and use only pseudonyms in any opinion); In re Krynicki, 983 F.2d 74 (7th Cir. 1992) (Easterbrook, J., in chambers) (denying request to seal briefs on appeal); Pepsico Inc. v. Redmond, 46 F.3d 29 (7th Cir. 1995) (denying request to seal briefs on appeal and portions of district court opinion).  Compare Sanford-Brown, Ltd., 788 F.3d at 713 (where motion concerning certain exhibits explained why each document “entail[ed] proprietary trade secrets, and provide[d] justification for why they should remain sealed,” party “satisfied its high burden”).

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

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

According to Alaska Rule of Appellate Procedure 512.5, “A record on appeal is open to public inspection except that papers filed under seal in the trial court, recordings or transcripts of closed hearings held in the trial court, and exhibits submitted or introduced at closed hearings in the trial court, will be maintained under seal while they constitute part of a record on appeal.” The rule provides further that papers filed in the appellate courts are open unless the court orders otherwise.

A motion to file a paper under seal or to treat a paper as a confidential document in the appellate court, the response to such a motion, and the order ruling on such a motion, are open to public inspection and shall not themselves be filed under seal.  A paper may be lodged with the court along with a motion to file it under seal or to treat it as a confidential document. Unless the court otherwise orders, it is not open to public inspection while the motion to file it under seal or confidentially is pending. If the motion is denied, and the paper has been lodged along with the motion, the movant has the option of withdrawing the paper or leaving it on file open to public inspection. Alaska App. R. 512.5(c). A paper shall not be withheld from public inspection because other papers included in the same case file or the same record on appeal have been filed under seal or are confidential and are not open to public inspection.  Alaska App. R. 512.5(c).

No published decisions.

The record and accompanying briefs, motions, or other filings in all adoption appeals shall be sealed. Ark. Sup. Ct. R. 6-3(a). The Clerk shall ensure that the public docket use initials to identify juveniles in those appeals. Counsel and the Court shall preserve the juvenile’s anonymity by using initials in all subsequent captions, opinions, motions, and briefs, as well as in oral argument, if any. The record and papers on appeal shall be open for inspection only to counsel and parties of record, or, only upon order of the Court after review of a written motion. In any other appeal in which counsel for either side believes that a person’s identity should be protected by the Court, counsel may move the Court to do so. Ark. Sup. Ct. R. 6-3(a).

The presumption of access to civil court records applies to appellate records. See, e.g., McNair v. Nat’l Collegiate Athletic Ass’n, 234 Cal. App. 4th 25, 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).

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.)

Appellate 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).

Appellate records are presumed available to the public. Conn. R. App. Ct. § 77-3. As with superior court records, records may only be sealed if—upon written motion, or the court’s own motion—the court concludes that closure “is necessary to preserve an interest which is determined to override the public's interest in attending such proceeding,” after the court “first consider[s] reasonable alternatives to” closure. Id. Any order “shall be no broader than necessary to protect such overriding interest,” and the parties’ agreement that the court should be closed “shall not constitute a sufficient basis for the issuance of such an order.” Id. An order to seal records may be made only after hearing, with notice to the public. Conn. R. App. Ct. § 77-4.

Records of appellate proceedings involving juvenile matters are open only to counsel of record and “others having a proper interest therein only upon order of the court.” Conn. R. App. Ct. § 79a-12.

Generally, dockets of all appellate proceedings are publicly accessible via the PACER system.

As with other court records, appellate court records are also presumptively open. Barron v. Florida Freedom Newspapers, Inc., 531 So. 2d 113, 118 (Fla. 1988). Florida Rule of Judicial Administration 2.420 addresses public access to Florida court records and some provisions of the current rule could impact access to appellate court records. Florida Rule of Judicial Administration 2.420(g) addresses requests to determine the confidentiality of appellate court records in non-criminal cases. Unlike motions to seal trial court records, no hearing is held on a motion to seal appellate court records. A request to unseal appellate court records must be made in a written motion filed in the appellate court.

Requests for closure of civil appellate court records are rare. Motions to seal court records will be denied (often without prejudice) if the proponent fails to address the sealing standards announced in Barron.  See e.g., Gulliver Sch., Inc. v. Snay, 137 So. 3d 1031 (Fla. 3d DCA 2013); BDO Seidman, LLP v. Banco Espirito Santo Int’l, Ltd., 201 So. 3d 1 (Fla. 3d DCA 2009).

Access to records online is governed by Florida Supreme Court Administrative Order 14-19, as amended. Links to Florida court websites can be found at https://www.flcourts.gov/Florida-Courts. Florida’s district courts of appeal and the Florida Supreme Court may designate cases as “high profile,” making the related court documents available through the court’s website. The Florida Supreme Court’s high profile cases pages can currently be found at https://supremecourt.flcourts.gov/News-Media. Most appellate court clerks are good contacts for any questions concerning access to appellate court records.

Appellate records are presumptively open. See Atlanta Journal-Constitution v. Long, 259 Ga. 23, 24 (1989).

Idaho Appellate Rule 31(b) recognizes that some confidential documents used at the trial court level must be transmitted with the record on appeal.  In appeals from proceedings exempt from disclosure, the Idaho Supreme Court or the Court of Appeals may in their rulings use substitute designations such as “John Doe” or “Jane Doe” or further deletions to preserve the anonymity of participants in the proceeding.  I.C.A.R. 32(h).

There appears to be no reported Illinois case law on this issue. Illinois courts, however, have established rules regarding appellate records. Rule 8 for the Supreme Court of Illinois specifies that records and cases designated as “public” by the clerk will be available by any person upon request. With respect to the appellate courts, some districts have a rule addressing this issue while others do not. Rule 111(a) of Illinois Appellate Court, Second District and Fourth District provides that “[a]ny filed materials, not including impounded or sealed materials, will be made available for review upon request by any party or non-party.” The First, Third, and Fifth Districts do not have such a rule.

Appellate records are open to public access unless Administrative Rule 9(G) excludes them. Ind. Admin. Rule 9(D)(1). Indiana uses the Odyssey case management system, which allows the public to search cases by case numbers, party names, or attorneys: https://public.courts.in.gov/mycase/#/vw/Search.

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 appellate 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.  Rules in appellate cases are accessible on the Kansas Judicial Branch’s website.  See  Cases and Opinions, Kansas Judicial Branch, http://www.kscourts.org/Cases-and-Opinions/default.asp.  Records associated with appellate cases may be requested from the Clerk of the Appellate Courts, http://www.kscourts.org/appellate-clerk.

No Kentucky cases deal specifically with appellate records.  However, they are presumptively open under the principles set forth in Courier-Journal & Louisville Times Co. v. Peers, 747 S.W.2d 125 (Ky. 1988), and Fiorella v. Paxton Media Grp., LLC, 424 S.W.3d 433 (Ky. Ct. App. 2014).  Appellate dockets, along with limited appellate records, are publicly available online at https://courts.ky.gov/Pages/legal.aspx.

There should be no different standards for access to appellate records than for access to pretrial records. See “pretrial motions and records” section above. Typically, such records are obtained simply by going to the clerk’s office and asking for the record.

Supreme Court Rule V, § 5, addresses sealed documents: “When a Motion to Seal is filed, the motion and the documents, subject of motion, will be filed under seal and will remain under seal until the court takes action on the motion. If the motion is granted, the order will become public and the motion and documents will remain under seal. If the motion is denied, the motion and documents will be available to the public unless the court order allows the filing party to retrieve the motion and documents. Motions and documents filed under seal will only be viewable by authorized court personnel unless otherwise indicated in the order to seal.”

Appellate records, both civil and criminal, are public.  See M.R. App. P. 12B.

There are no judicial decisions, rules, or statutes related specifically to access to appellate 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.”

Michigan courts have not specifically addressed whether appellate records are accessible to the public. However, pursuant to M.C.R. 8.119(F)(5), court orders and opinions from any court may never be sealed, and court records of all Michigan courts are open unless specifically closed by statute or court order. See M.C.R. 8.119(H).

In Minneapolis Star & Tribune Co. v. Schumacher,  392 N.W.2d 197, 202–03 (Minn. 1986), the Minnesota Supreme Court recognized the common law presumption in favor of granting the public the right to inspect and copy court records and documents. This common law presumption of access has been characterized as “strong.” Id. at 203.  In addition, 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.

Missouri Court Operating Rule 20.02 provides:

(a) All case records of the Supreme Court, including opinions and votes thereon, orders, briefs, and records on appeal, shall be open to the public unless closed by order of the Supreme Court.

All appellate records are open to the public unless the court has sealed some document or record.

Information required by statute to be confidential remains confidential when included in an appellate record. Neb. Ct. R. App. Prac. § 2-109(D) provides:

(D) Contents of Briefs. BRIEFS FILED WITH THE CLERK OF THE SUPREME COURT AND COURT OF APPEALS SHALL NOT BE CONFIDENTIAL. A brief shall not contain a reproduction, quotation, or extensive paraphrase of material which is declared by any statute or other rule of the Supreme Court to be confidential. Instead, parties or counsel may include a citation in the brief, as set forth in § 2-109(C)(1) to (3), to the portion of the record which is confidential.

A civil court record or any portion of it that was sealed in the trial court shall be made available to the Nevada Supreme Court in the event of an appeal. Court records sealed in the trial court shall be sealed from public access in the Nevada Supreme Court subject to further order of that court. SRCR 7.

All events and actions taken in administrative matters or in the preparation and circulation of draft opinions or orders, bench memoranda, and memoranda and correspondence between chambers or staff concerning pending cases shall be confidential, as shall the events, actions, and votes that are taken at any draft or post-argument conference. The contents of orders or opinions shall remain confidential until filed by the clerk of the court and released to the public.

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

Rule 12-314 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 appellate records are allowed the same presumption to public access. As such, appellate 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 12-314.

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 appellate 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 apply to all courts of appeal.  Sup.R. 1(A).  Thus, appellate court records are presumptively open, unless they fall within a specific exception, and appellate courts must follow the procedures set forth in the Rules to order a particular record closed.  See Sup.R. 44, 45.

The Commonwealth Court has held that appellate briefs are “judicial records.” Milton Hershey Sch. v. Pa. Human Relations Comm’n, 226 A.3d 117, 132 (Pa. Commw. 2020). “These documents are judicial records, as they were filed with the Court, and whether the Court found all the arguments persuasive or not, the Court read the briefs and was informed by their presentation as they related to the discrete legal issue before the Court.” Id. The court in Milton Hershey School additionally held that the petition for appellate review is likewise a judicial record subject to disclosure. Id. (“The Petition for Review…is comprised in large part of [] legal arguments . . . This document, having been filed of record with the Court and considered by the Court in granting [plaintiff’s] permission to appeal, is a judicial record.”). The court also unsealed the appellate docket and its orders in that case. Nevertheless, the court held that the record on appeal should remain sealed because (1) the jurisdictional issue considered on appeal involved “a very limited” and “discrete” issue; (2) the agency record was compiled and filed solely for compliance with the court’s rules for agency appeals; (3) the administrative agency previously had ordered the material in the record to be sealed in light of privacy, privilege, and confidentiality issues involving the minor who was a party to the proceeding and other third parties; and (4) “while the matter is still pending before that agency,” the agency’s decision to seal the record reflected “a compelling governmental interest.” Id. at 130-31.

More generally, it is well-established that the public and press have a constitutional right to appellate court proceedings. See, e.g., United States v. Moussaoui, 65 F. App’x 881, 890 (4th Cir. 2003) (“There can be no question that the First Amendment guarantees a right of access by the public to oral arguments in the appellate proceedings . . . . Such hearings have historically been open to the public, and the very considerations that counsel in favor of openness of . . . trial support a similar degree of openness in appellate proceedings.”).

Effective January 6, 2018, the Pennsylvania Supreme Court approved a new policy that governs public access to case records, 204 Pa. Code § 213.81. The policy applies to case records filed in Pennsylvania’s appellate courts.

Remote access to the electronic case record information residing in the Pennsylvania Appellate Court Case Management System (PACMS) is available on https://ujsportal.pacourts.us/.

Electronic case record information held on PACMS is governed by the Electronic Case Record Public Access Policy of the Unified Judicial System of Pennsylvania, available at https://www.pacourts.us/public-records/public-records-policies (last visited Aug. 27, 2021).

The Rhode Island Supreme Court has not directly addressed this question.  Supreme Court Rule of Appellate Procedure 16(a) requires filing briefs with the clerk of the Court.  Under the approach adopted by the Rhode Island Superior Court in Dauray v. Estate of Mee, “documents that are filed with the court that reasonably may be relied upon in support of any part of the court’s adjudicatory function are judicial documents.”  No. PB-10-1195,  2013 WL 372647 at *13, 2013 R.I. Super. LEXIS 19, at *40-41 (R.I. Super. Ct. Jan. 23, 2013) (quoting Rosado v. Bridgeport Roman Catholic Diocesan Corp., 970 A.2d 656, 678 (Conn. 2009)).  Under such a standard, appellate documents would likewise be open to public access.  See id.

South Carolina appellate courts are courts of record and these courts’ records are open to public inspection at all times. S.C. Code Ann. § 14-8-240. The South Carolina Freedom of Information Act, S.C. Code Ann. § 30-4-10 et. seq. protects rights of access to appellate court records, and all filed appellate records are available through C-Track Public Access system website. A link to the C-Track Public Access system is available at https://www.sccourts.org/ACMS/ (once you click accept at the bottom of the page, you can enter the system).

“Documents previously filed under seal in the trial court pursuant to a specific order of the trial court remain under seal in [the Court of Appeals].  Tenn. Ct. App. R. 15(b)(i).  However, ‘[f]or a document to be filed under seal in the appellate court pursuant to subdivision (b), the trial court must have made an individual determination that the particular document should be filed under seal.’”  Doe v. Brentwood Academy Inc., 578 S.W.3d 50, 52-53 (Tenn. Ct. App. 2018) (quoting Tenn. Ct. App. R. 15(b)(ii)).

The Supreme Court of Texas has not expressly determined whether there is a constitutional right of the public to access appellate court records in civil cases.  However, Texas courts recognize that civil court records are presumptively open to the public.  See Davenport v. Garcia, 834 S.W.2d 4, 23–24 (Tex. 1992); In Interest of M.A.M., No. 05-14-00040-CV, 2015 WL 5863833, at *4 (Tex. App.—Dallas Oct. 8, 2015), reh’g overruled (Nov. 30, 2015) and review denied (Feb. 26, 2016) (mem. op.) (citing Times Herald Printing Co. v. Jones, 717 S.W.2d 933, 936 (Tex. App.—Dallas 1986), vacated and dismissed on other grounds, 730 S.W.2d 648 (Tex. 1987) (per curiam); Ashpole v. Millard, 778 S.W.2d 169, 170 (Tex. App.—Houston [1st Dist.] 1989, no pet.)).  As discussed above, Texas Rule of Civil Procedure 76a governs sealing procedure in the trial court, and records sealed by the trial court will remain sealed on appeal, absent a successful motion to unseal.

The Texas Rules of Appellate Procedure provide that sensitive data, such as bank account numbers or social security numbers, generally must be redacted in court filings, unless a court orders otherwise.  See Tex. R. App. P. 9.9.  Documents containing unredacted sensitive information may not be posted on the internet.  See Tex. R. App. P. 9.9(e).

The general presumption in favor of the right of public access presumably applies equally to appellate 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.”); 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.”); DUCivR 5-2(a) (“The records of the court are presumptively open to the public.”).

Not only are the proceedings of the Vermont Supreme Court presumed to be public, the Vermont Rules of Appellate Procedure provide that “[t]he news media may record proceedings of the Supreme Court, unless the Chief Justice directs otherwise.”  V.R.A.P. Rule 35.  Note, however, that if records are deemed to not be publicly accessible under Vt. Pub. Acc. Ct. Rec. Rule 6, they “remain inaccessible if the case is appealed to another court.”  Vt. Pub. Acc. Ct. Rec. Rule 6(i).

There are no reported cases in Virginia addressing the public’s right of access to appellate records.  The Fourth Circuit has held that the public’s qualified right of access extends to appellate proceedings. See United States v. Moussaoui, 65 F. App'x 881, 890 (4th Cir. 2003) (“There can be no question that the First Amendment guarantees a right of access by the public to oral arguments in the appellate proceedings of this court.”).

Audio recordings of oral arguments since January 7, 2014 are available on the Virginia Supreme Court’s website.

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).

Rule 40 of the West Virginia Rules of Appellate Procedure governs public access to appellate records, whether from an appeal of civil case or any other case.   W. Va. R. App. P. 40, http://www.courtswv.gov/legal-community/court-rules/appellate-procedure/Part-IX.html#rule40.  The “general rule” is that “[i]n all cases in which relief is sought in the Supreme Court, all pleadings, docket entries, and filings related thereto . . . shall be available for public access unless otherwise provided by law or by a rule of this Court, or unless otherwise ordered by the Court in accordance with [Rule 40].” W. Va. R. App. P. 40(a).

If the case record from the lower court includes records the lower court determined to be confidential, such records will remain confidential upon the appeal.  W. Va. R. App. P. 40(c). However,

Any party or other person with standing may file a motion to unseal the case record or portion of a case record in this Court, setting forth good cause why the case record should no longer be confidential [and] the Court may, in its discretion, issue an order unsealing all or part of the case record, or issue an order denying the motion.

Id. Likewise, a party or other person with standing may move to seal a portion of the case record on appeal. W. Va. R. App. P. 40(d).

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