I. Introduction: Access rights in the jurisdiction

In the First Circuit it is well established that there are “two related but distinct presumptions of public access to judicial proceedings and records,” under both the common-law right and the First and Fourteenth Amendments.  United States v. Kravetz, 706 F.3d 47, 52 (1st Cir. 2013).  The First Circuit applies the logic and experience test in determining “if a constitutional right of access applies” – whether the materials were traditionally accessible to the public and whether public access would play a “significant positive role.” In re Boston Herald, Inc., 321 F.3d 174, 182 (1st Cir. 2003).  The First Circuit has also recognized access rights grounded in applicable court rules of procedure, which in some instances provide for access even where the common law or the First Amendment do not.

“The value of openness in judicial proceedings can hardly be overestimated.” United States v. Moussaoui, 65 F. App'x 881, 885 (4th Cir. 2003).

Public access promotes the public’s interest in monitoring the functioning of the courts and the integrity of the judiciary, and, particularly in criminal cases, provides a community therapeutic value. Doe v. Pub. Citizen, 749 F.3d 246, 266 (4th Cir. 2014) (citation omitted); United States v. Moussaoui, 65 F. App'x 881, 885-86 (4th Cir. 2003). See also Warnick v. Arrowsmith, No. 3:16-CV-876, 2017 WL 2999025, *5 (E.D. Va. July 14, 2017) (“No other check on judicial decisions exists. Our law therefore presumes that judicial records are open to the public.”) (citing In re Knight Pub. Co., 743 F.2d 231, 235 (4th Cir. 1984)).

The Eighth Circuit has recognized the importance of public access to the courts, noting that “[t]he right to a public trial has long been viewed as a safeguard against any attempt to employ our courts as instruments of persecution. . . . An open trial assures that the proceedings are conducted fairly and discourages perjury, misconduct, and decisions based on partiality or bias. Even though most community members do not attend trials, the knowledge that they could and that others do fortifies the public's confidence in the trials’ results.” United States v. Thunder, 438 F.3d 866, 867 (8th Cir. 2006).

Delaware recognizes that the public’s right of access to judicial records and proceedings is fundamental to a democratic state, and that the right of public access enables the public to judge the product of the courts in a given case.  As a result, all judicial proceedings and records are presumptively open to the public.  ADT Holdings, Inc. v. Harris, 2017 WL 4317245 at *1 (Del Ch. Sept. 28, 2017); Sequoia Presidential Yacht Group, LLC v. FE Partners, LLC, 2013 WL 3724946 at *2 (Del. Ch. July 15, 2013); Horres v. Chick-Fil-A, Inc., 2013 WL 1223605 at *1 (Del. Ch. Mar. 27, 2013).

Consistent with the Georgia’s “strong public policy . . . in favor of open government,” Richmond Cty. Hosp. Auth. v. Se. Newspapers Corp., 252 Ga. 19, 20 (1984), the State’s courts have long recognized and enforced a public right of access to judicial records and proceedings, whether asserted by or on behalf of litigation parties, the media, or the general public.

Access to court proceedings and records in Idaho varies depending upon the specific tribunal and proceeding at issue.  Thus, an overview of Idaho’s court system is a good place to start in understanding access rights in Idaho.

At the trial court level, Idaho is divided into seven judicial districts, each with an administrative district judge.  See https://isc.idaho.gov/overview.pdf.  Each county has a District Court, which includes a Magistrate Division.  Currently, there are 42 district judges and 87 magistrate judges within the state.  District judges hear felony criminal cases, civil actions if the amount in controversy exceeds $10,000 and appeals from decisions of the Magistrate Division.  The Magistrate Division handles probate, divorce, juvenile and initial felony proceedings through the preliminary hearing, criminal misdemeanors, infractions, civil cases where the amount in controversy does not exceed $10,000, and cases in Small Claims Court (e.g., where the amount in controversy does not exceed $5,000).

The Idaho Supreme Court, made up of five justices, hears appeals from the District Court and from the Idaho Public Utilities Commission and the Industrial Commission.  The Idaho Court of Appeals, made up of four appellate judges (cases are heard by three judge panels), hears cases assigned to it by the Idaho Supreme Court, except for capital murder convictions and appeals from the Idaho Public Utilities Commission or Industrial Commission.  Thus, all decisions from the District Court are appealed directly to the Idaho Supreme Court who, then, may reassign the appeal to the Idaho Court of Appeals.

Access to court proceedings derives, fundamentally, from the constitutional right of access to courts under Idaho Constitution, art. I, § 18, and cases interpreting that section.  Idahoans also enjoy First Amendment rights of access to court proceedings as described by the United States Supreme Court in Press-Enterprise Co. v. Superior Court, 478 U.S. 1, 8 (1986).  See Cowles Publ’g Co. v. Magistrate Ct., 118 Idaho 753, 761, 800 P.2d 640, 648 (1990).

The right to access court records derives from the Idaho Supreme Court pursuant to Idaho Courts Administrative Rule 32(a), which is grounded in First Amendment principles of openness.  State v. Allen, 156 Idaho 332, 336, 325 P.3d 673, 677 (Ct. App. 2014).  Court records are exempt from Idaho’s Public Records Act.  See I.C. 74-104(2).

The Idaho Supreme Court is currently involved in transitioning its statewide paper-based records system to an electronic system known as iCourt.  See http://icourt.idaho.gov/projfaq.  When it is completed, litigants and members of the public should have access to all court filings electronically over the Internet.

The freedom to report current events is at the core of the expression protected by the First Amendment of the United States Constitution, which binds Indiana. As recognized by our founding fathers, “[o]ur liberty depends on the freedom of the press, and that cannot be limited without being lost.” 9 Papers of Thomas Jefferson 239 (J. Boyd ed. 1954). Further, the press is recognized as “the handmaiden of effective judicial administration, especially in the criminal field” and a guard “against the miscarriage of justice by subjecting the police, prosecutors, and judicial processes to extensive public scrutiny and criticism.” Neb. Press Ass’n v. Stuart, 427 U.S. 539, 560 (1976).

Indiana’s Constitution and statutory scheme strongly supports access to the courts, both for its citizens and its free press. The Indiana Constitution mandates that “[a]ll courts shall be open; and every person, for injury done to him in his person, property, or reputation, shall have remedy by due course of law. Justice shall be administered freely, and without purchase; completely, and without denial; speedily, and without delay.” Both proceedings and records are open, with exceptions. For example, Indiana Code Section 5-14-2-2 provides that “[c]riminal proceedings are presumptively open to attendance by the general public,” and juvenile proceedings are open if they are murder or felony charges. Id. § 31-32-6-3. Additionally, Indiana’s Access to Public Records Act enables broad access to court records. Id. § 5-14-3-et seq.

Kentucky law provides strong protection to the public’s right of access to court records and court proceedings.  The right in Kentucky is derived from several sources, including the First Amendment to the United States Constitution, the Kentucky Constitution, the common law, and court rules.  As a general matter, Kentucky law provides for the presumption of openness and places a high burden on those who argue for closure of court records or proceedings.

The Maine Supreme Judicial Court made clear that news media access to courtrooms—and by extension court records—is the prerogative of the courts. “[M]edia access to courtrooms is within the judicial power committed to this Court by the Maine Constitution.” Supreme Judicial Court Direct Letter of Address, Me. Rptr., 490-509 A.2d CXXVI-CXXIX (April 25, 1986). “[T]he people of Maine conferred all of the judicial power upon the judicial department and left none to be exercised by the Legislature, except in cases of impeachment.” Id. “Thus within its power, the judiciary acts with exclusive authority, and any attempt by the Legislature to exercise judicial power constitutes an invasion of the province of the judiciary in violation of article III of the constitution.” Id.

The court made these pronouncements in a letter issued in 1986 by the Justices of the Supreme Judicial Court to the Governor, the President of the Senate, and the Speaker of the House. The court informed the legislative and executive branches that a newly enacted statute requiring that the courts promulgate rules allowing cameras into the courtroom would be an unconstitutional violation of the separation of powers clause of the Maine constitution. Id.

Because the court has reserved to itself ultimate authority to regulate access to courtrooms and the First Amendment of the Federal Constitution has been construed to provide qualified rights to access court proceedings and court records, the Maine Legislature does not have the final say when it comes to public access to the judicial branch.  Unsurprisingly, however, the Supreme Judicial Court has referred to and followed state statutes purporting to restrict access to certain judicial proceedings, most notably juvenile court proceedings. In re Bailey M., 2002 ME 12, ¶ 15, 788 A.2d 590.

The statute that regulates access to legislative and executive branch records and proceedings is generally understood not to apply to the judicial branch.  See Asselin v. Superior Ct., 2015 Me. Unpub. LEXIS 3 (Jan. 22, 2015).  However, Maine’s public records and public meetings law, the Freedom of Access Act, 1 M.R.S.A. §§ 400–414, may apply to non-judicial records, such as records related to judicial marshals or other court employees.

The Supreme Judicial Court has not often decided cases addressing public access to court records or court rooms.  See Sigmund D. Schutz, Public Access to Judicial Proceedings and Records in Maine: Worth Protecting, 27 Me. B. J. 198, 202 (Fall 2012) (referring to Maine authority on access to judicial records and proceedings as “sparse,” and observing that there are “few Maine cases and statutes on point”).  In the absence of Maine law on point, the court often looks to federal precedent—and, specifically, First Circuit cases—for guidance.  See Littlefield v. Dep’t of Human Servs., 480 A.2d 731, 737 (Me. 1984) (noting that the court will generally follow First Circuit decisions on federal law “so far as reasonably possible” in the interests of “harmonious federal-state relationships”).

A good place to start in understanding practical day-to-day access to court proceedings and records in Maine is to review the Supreme Judicial Court’s administrative orders.  Two such orders are most relevant to access to court rooms and court records in Maine.  Administrative Order JB-05-20, “Public Information and Confidentiality,” governs the public release of court records and Administrative Order JB-05-15, “Cameras and Audio Recording in the Courtroom,” governs broadcast media coverage of court proceedings.

The North Dakota Supreme Court has consistently expressed a policy of openness in all judicial proceedings.  Crucially, the right to a public trial is for the benefit of the defendant, not the public. Quoting the United States Supreme Court, in Dickinson Newspapers, Inc. v. Jorgensen, 338 N.W.2d 72 (N.D. 1983), the North Dakota Supreme Court noted, “The press serves to guarantee the fairness of trials and to bring to bear the beneficial effects of public scrutiny upon the administration of justice.”  Additionally, in State v. Rueb, 249 N.W.2d 506 (N.D. 1976), the court noted, “Our Constitution provides for public trials and the public’s right to know has become engrafted on our system of government by appropriate laws.”

This policy of openness is subject to the provisions of N.D.C.C. § 29-07-14, through which a defendant may request that a magistrate holding a preliminary hearing exclude every person except the magistrate’s clerk, the prosecutor, the prosecutor’s counsel, the attorney general of the state, the state’s attorney of the county, the defendant, the defendant’s counsel, such other person as the defendant may designate, and the officer having the defendant in custody.  Such closure will only be justified if the magistrate determines that evidence inadmissible at the trial on the issue of guilt or innocence will be admissible at the preliminary examination, which is designed to determine only probable cause and, as a result, there is a substantial likelihood that such evidence will interfere with the defendant's right to a fair trial and impartial jury. As the North Dakota Supreme Court has stated, “We cannot ignore the fact that pretrial publicity of inadmissible evidence can defeat the defendant’s constitutional right to a fair and public trial.”

The Texas state court system has two co-equal courts atop its appellate hierarchy.

The Supreme Court of Texas is the court of last resort for civil and juvenile cases, and the Court of Criminal Appeals is the court of last resort for criminal cases.  In all cases except death penalty cases, which are appealed directly to the Court of Criminal Appeals from the trial level, the high courts hear appeals from the fourteen intermediate courts of appeals.

The courts of appeals have regional jurisdiction across Texas and serve as intermediate appellate courts, similar to the Circuit Courts in the federal court system.

There are two categories of courts whose decisions are appealed to the courts of appeals, the district courts and the county courts.  The district courts have overlapping original jurisdiction over civil actions with the county courts for civil actions worth over $500, and additionally have jurisdiction over felony cases and juvenile matters.  In more populous counties, some district courts are specialized for criminal or other matters.  There are three types of county courts: Constitutional county courts; Statutory county courts, and Statutory probate courts.  The Constitutional county courts have original jurisdiction over civil cases valued at between $200 and $10,000 ($20,000 beginning September 1, 2020), as well as jurisdiction over probate and guardianship matters, misdemeanors with jail sentences or possible fines of at least $500, and juvenile matters.  The Constitutional county courts also hear de novo appeals from the local courts.  The Statutory county courts have jurisdiction mirroring the Constitutional county courts, except that the courts have jurisdiction over civil cases ranging from $500 to $200,000 ($250,000 beginning September 1, 2020) or higher.

The Statutory probate courts handle probate and guardianship matters.

There are two categories of local courts: Justice courts and the Municipal courts.  The Justice courts are not courts of record, and have jurisdiction over civil actions valued at $10,000 or less, small claims, and misdemeanors that do not carry a sentence of imprisonment.  The Justice courts also conduct magistrate functions.  The Municipal courts are mostly not courts of record, and have jurisdiction over misdemeanors that do not carry a sentence of imprisonment, municipal ordinance criminal cases, and some limited civil jurisdiction.  The Municipal courts also conduct magistrate functions.

“The right of access to judicial proceedings and records is well-established.” Globe Newspaper Co. v. Commonwealth, 264 Va. 622, 628, 570 S.E.2d 809, 811 (2002).  “A trial is a public event . . . There is no special perquisite of the judiciary which enables it, as distinguished from other institutions of democratic government, to suppress, edit, or censor events which transpire in proceedings before it.” Am. Online, Inc. v. Anonymous Publicly Traded Co., 261 Va. 350, 362, 542 S.E.2d 377, 384 (2001) (quoting Craig v. Harney, 331 U.S. 367, 374 (1947)). Public access “serves both a therapeutic value, as an outlet for community concern when a shocking crime occurs, and as a means for the public to see that all citizens are treated equally.” Richmond Newspapers, Inc. v. Commonwealth, 222 Va. 574, 585, 281 S.E.2d 915, 921 (1981).  Access also “promotes public confidence in the judicial process.” Hertz v. Times-World Corp., 259 Va. 599, 613, 528 S.E.2d 458, 465 (2000) (Koontz, J., dissenting).

The Supreme Court of Virginia decided a few important right of access cases, but overall, Virginia precedent on key access issues is lacking.  Federal courts, by contrast, have addressed a wide variety of access issues.  Virginia courts are bound by the United States Supreme Court’s interpretations of the First Amendment. See House v. Commonwealth, 210 Va. 121, 169 S.E.2d 572 (1969) (observing that in determining whether allegedly obscene publications were within area of free speech and press protected by First Amendment to Constitution, court was bound by decisions of United States Supreme Court); accord Dickerson v. Commonwealth, 181 Va. 313, 330, 24 S.E.2d 550, 558 (1943) (“We are bound by the judicial construction placed upon the provisions of the Federal Constitution by the Supreme Court of the United States.  It is the final authority on that subject.”).  However, decisions from the United States Court of Appeal for the Fourth Circuit and its lower courts in Virginia are merely persuasive; they are not binding on Virginia courts. See Toghill v. Commonwealth, 289 Va. 220, 227, 768 S.E.2d 674, 677 (2015) (“While this Court considers Fourth Circuit decisions as persuasive authority, such decisions are not binding precedent for decisions of this Court.”).  Practitioners should be mindful that Virginia courts are not always receptive to federal court decisions, even in cases involving a First Amendment right of access.

In April 2019, the Virginia Supreme Court issued new rules that exempt the administrative operations of the state court system from Virginia's Freedom of Information Act.  To learn more about Virginia's public records and open meeting laws, read the Virginia chapter of the Open Government Guide.

The West Virginia Constitution in article III, section 14 recognizes that “[t]rials of crimes, and misdemeanors, unless herein otherwise provided, shall be . . . public . . . .”  W. Va. Const. art. III, § 14. The right of access to the courts under the West Virginia Constitution is not limited to the accused, but mandates that the trial itself shall be public. State ex rel. Herald Mail Co. v. Hamilton, 165 W. Va. 103, 108, 267 S.E.2d 544, 547 (1980). The right of access to West Virginia courts applies to the press as well as the public as described by the U.S. Supreme Court in Cox Broadcasting Corp. v. Cohn, 420 U.S. 469 (1975). The press “not only constitutes a part of the general public, but it is well established that it operates in a special capacity as an agent or surrogate for the general public in its gathering and dissemination of information.” Hamilton, 165 W. Va. at 112, 267 S.E.2d at 549 (quoting Cox Broad. Corp., 420 U.S. at 491–92).

The Wyoming Supreme Court has recognized a constitutional right of access to court proceedings and records pursuant to the First Amendment to the U.S. Constitution.  Circuit Court of the Eighth Judicial Dist. v. Lee Newspapers, 2014 WY 101.