II. Procedure for asserting right of access to proceedings and records

If access to a public proceeding is denied, a party may file a special action seeking expedited review of a court’s order restricting access.  See generally Ariz. R. Special Action. P. 3 (describing bases on which a special action may be brought); see also Ariz. R. Supreme Ct. 122(d) (explaining that a “judge’s decision on a coverage request, or on an objection to coverage, is reviewable only by special action.”).

For access to public records, a person or entity must first request the records from the responsible governmental agency.  If a request for copies of public records is made, the public body must provide those records “promptly.”  Ariz. Rev. Stat. § 39-121.01.  If the public body refuses to provide the records or does not respond to a properly submitted request, the party seeking the information may file a special action seeking access to the materials.  Ariz. Rev. Stat. § 39-121.02.  A party that substantially prevails in a special action to obtain records may be awarded attorneys’ fees and legal costs.  See generally Ariz. R. Sup. Ct. 123 for procedures governing access to court records.

In the event of curtailment or closure of the public right of access to proceedings and records, it has long been established that members of the public or press are entitled to intervene and object.

When faced with a closed court proceeding, the media or any other interested person who would like to attend such proceeding must object and request an opportunity to appear to argue against the closure.  Trial judges must then hold a hearing to go through the Press-Enterprise analysis.  Indeed, judges who are unfamiliar with such requests have various resources at their disposal, including the Idaho Supreme Court’s Media/Courts Committee online “Media Guide to the Idaho Courts” (http://www.isc.idaho.gov/files/Media_Guide-REVISION-DRAFT-10-28-13.pdf), the Media and Courts Conflict Resolution Panel (aka “the Fire Brigade”), id., and the Administrative District Judge located in each district.  In addition, members of the media faced with closure/sealing orders are encouraged to contact members of the Idaho Press Club who have experience in this area and may offer assistance.  See http://www.idahopressclub.org.

With respect to both court proceedings and case records, a member of the press or public seeking to assert the right of access may intervene in the case at issue and file a motion seeking to compel access. Likewise, members of the public (including the press) may intervene for purposes of challenging a request for closure or sealing made by the parties to an action or by the court itself.

Under the N.C. Public Records Act, "[a]ny person who is denied access to public records for purposes of inspection and examination, or who is denied copies of public records, may apply to the appropriate division of the General Court of Justice for an order compelling disclosure or copying, and the court shall have jurisdiction to issue such orders if the person has complied with G.S. 7A-38.3E. Actions brought pursuant to this section shall be set down for immediate hearing, and subsequent proceedings in such actions shall be accorded priority by the trial and appellate courts." N.C.G.S. 132-9.

North Carolina General Statute §1-72.1 sets forth the procedure to assert the right of access. N.C.G.S. § 1-72.1(a) provides in part, “Any person asserting a right of access to a civil judicial proceeding or to a judicial record in that proceeding may file a motion in the proceeding for the limited purpose of determining the person's right of access.” Such a motion does not amount to a request to intervene, and a movant does not become a party to the action solely by filing a motion under this statute.

In the alternative, pursuant to North Carolina Rule of Civil Procedure Rule 24, a third party may file a motion to intervene in order to assert a right of access.

Closure of a preliminary proceeding can only be accomplished on motion by the defendant, under N.D.C.C. § 29-07-14.  As held in Minot Daily News v. Holum, 380 N.W.2d 347 (N.D. 1986), the public is to be afforded notice of the motion by its placement on the court docket.  The public, including the media, is entitled to attend a hearing on the motion for closure.

The media may not directly intervene as a party in a motion for closure of a preliminary proceeding under N.D.C.C. § 29-07-14. However, the North Dakota Supreme Court held in Dickinson Newspapers v. Jorgensen, 338 N.D. 72 (N.D. 1983) that the news media can apply for a supervisory writ to prevent the closing of a preliminary hearing.  However, an application for a writ of this nature must include the party requesting the closure (typically the criminal defendant) as a respondent.

The First Amendment to the United States Constitution and article 1, section 2 of the South Carolina Constitution protect an individual’s right to access proceedings. The South Carolina Freedom of Information Act, S.C. Code Ann. § 30-4-10 et. seq. protects the right to access filed court records.

Intervention is the procedural mechanism in Virginia for asserting the public’s qualified right of access, both in civil and in criminal matters. Richmond Newspapers, Inc. v. Commonwealth, 222 Va. 574, 590, 281 S.E.2d 915, 923 (1981).

One must file a motion to intervene for the limited purpose of contesting a court closure.