D.C. Circuit
Author
Cynthia A. Gierhart
Holland & Knight LLP
800 17th Street NW, Suite 1100
Washington, DC 20006
202-955-3000
Rachel E. Mueller
Aegis Law Group LLP
Market Square West - Suite 740
801 Pennsylvania Avenue, N.W.
Washington, DC 20004
202-737-4094
Last updated May 27, 2020
CompareOpen Courts Compendium
CompareI. Introduction: Access rights in the jurisdiction
CompareA. The roots of access rights
The D.C. Circuit has not expanded the holding in Richmond Newspapers and its progeny to provide for a First Amendment presumption of access beyond criminal proceedings. In re N.Y. Times Co., 585 F. Supp. 2d 83, 87 n. 4 (D.D.C. 2008) (applying First Amendment right of access to certain sealed search warrant materials relating to the government’s investigation into the anthrax mailings of 2001).
The D.C. Circuit holds that the First Amendment protects public access to court records and proceedings if the court determines that such access (i) has historically been available and (ii) “plays a significant positive role in the functioning of the particular process in question.” In re Reporters Comm. for Freedom of the Press, 773 F.2d 1325, 1336 (D.C. Cir. 1985) (citing Press-Enterprise Co. v. Super. Ct., 478 U.S. 1, 8-9 (1986) (“Press-Enterprise II”). Both of these questions “must be answered affirmatively before a constitutional requirement of access can be imposed.” In re Reporters Comm. for Freedom of the Press, 773 F.2d 1325, 1332 (D.C. Cir. 1985). The right of access is qualified, however. If a court determines that there is a First Amendment right of access to certain documents, the government may overcome that right by demonstrating “an overriding interest based on findings that closure is essential to preserve higher values and is narrowly tailored to serve that interest.” Id.
Despite the general preference of courts to decide common law principles instead of constitutional questions, the D.C. Circuit has on occasion chosen to reach the constitutional issue “because of the different and heightened protections of access that the First Amendment provides over common law rights.” Wash. Post v. Robinson, 935 F.2d 282, 288 n. 7 (D.C. Cir. 1991) (recognizing First Amendment right of access to plea agreements);see also In re N.Y. Times Co., 585 F. Supp. 2d 83, 87 n. 3 (D.D.C. 2008) (recognizing it is unusual to rule on the constitutional question when the case can be resolved on common law grounds but noting the D.C. Circuit has directed courts to “proceed [in addressing constitutional grounds] when a party claims that there is both a common law right of access and a constitutional right of access under the First Amendment.”).
The D.C. Circuit has applied the common law presumption of access to judicial documents and records. United States v. El-Sayegh, 131 F.3d 158, 160 (D.C. Cir. 1997) (judicial records are subject to the common law right of access depending on the role it plays in the adjudicatory process but finding no common law right of access to plea agreement). The common law right of access to judicial proceedings is “largely controlled by the second of the First Amendment criteria”—i.e., whether access provides a significant positive role in the functioning of the proceedings. Id.; see also In re Reporters Comm. for Freedom of the Press, 773 F.2d 1325, 1336 (D.C. Cir. 1985).
Whether a document must be disclosed pursuant to the common law right of access involves a two-step inquiry. First, the court must decide “whether the document sought is a ‘public record.’ If the answer is yes, then the court should proceed to balance the government's interest in keeping the document secret against the public's interest in disclosure.” Wash. Legal Found. v. U.S. Sentencing Comm'n, 89 F.3d 897, 898 (D.C. Cir. 1996). As a matter of federal common law, a “public record” is a government document created and kept for purposes of memorializing or recording an official action, decision, statement, or other matter of legal significance, broadly conceived. Id. (finding documents compiled by advisory committee established by U.S. Sentencing Commission's Advisory Working Group on Environmental Sanctions are not public records).
In deciding whether to furnish access to a record, a court should consider: (1) the need for public access to the documents at issue; (2) the public use of the documents; (3) the fact of objection and the identity of those objecting to disclosure; (4) the strength of the generalized property and privacy interests asserted; (5) the possibility of prejudice; and (6) the purposes for which the documents were introduced. United States v. Hubbard, 650 F.2d 293, 317–22 (D.C. Cir. 1980) (applying test determining whether to unseal documents seized from third-party defendant Church of Scientology and that were subsequently introduced, under seal, at pre-trial suppression hearing by defendant church officers and employees for purposes of demonstrating unlawfulness of search).
The common law right of access has been applied concomitantly with the First Amendment right of access. In re N.Y. Times Co., 585 F. Supp. 2d 83, 87 n. 3 (D.D.C. 2008) (applying common law right of access to certain sealed search warrant materials relating to the government’s investigation into the anthrax mailings of 2001, which had become common knowledge).
The Sixth Amendment guarantees a public trial in all criminal cases, and Fed. R. Civ. Proc. 77(b) provides that “[a]ll trials upon the merits shall be conducted in open court.” Fitzgerald v. Hampton, 467 F.2d 755, 764 (D.C. Cir. 1972) (citing Rule 77(b)).
CompareB. Overcoming a presumption of openness
Where the First Amendment qualified right of access applies, the government has the burden of demonstrating that denying access to the documents advances a compelling interest and that the denial of access is narrowly tailored to serve that interest. In re N.Y. Times Co., 585 F.Supp.2d 83, 87 n.3 (D.D.C. 2008); Wash. Post v. Robinson, 935 F.2d 282, 288 (D.C. Cir. 1991). If the government can show that keeping the records sealed is “essential to preserve higher values” and “narrowly tailored,” then the records will remain protected. In re N.Y. Times Co., 585 F. Supp. 2d 83, 90 (D.D.C. 2008).
The D.C. Circuit in United States v. Hubbard, 650 F.2d 293, 314 (D.C. Cir. 1980), “identified six factors that might act to overcome this presumption” of public access: (1) the need for public access to the documents at issue; (2) the extent of previous public access to the documents; (3) the fact that someone has objected to disclosure, and the identity of that person; (4) the strength of any property or privacy interests asserted; (5) the possibility of prejudice to those opposing disclosure; and (6) the purposes for which the documents were introduced during the judicial proceedings. Id; see also Johnson v. Greater Southeast Community Hosp. Corp., 951 F.2d 1268 (D.C. Cir. 1991).
The D.C. Circuit has recognized that where there is both a common law right of access and a qualified First Amendment right of access, courts should reach the constitutional issue, and not resolve the case on common law grounds, "because of the different and heightened protections of access that the First Amendment provides over common law rights." In re N.Y. Times Co., 585 F. Supp. 2d 83, n.3 (D.C. Cir. 2008) (quoting Wash. Post v. Robinson, 935 F.2d 282, 288 n.7 (D.C. Cir. 1991)).
CompareC. Procedural prerequisites to closure
Trial courts must strictly adhere to a number of specific procedural prerequisites before granting a motion to seal. Most important are opportunity for the person objecting to the closure to be heard, specific findings on the record to justify closure and permit appellate review, and entry on the public docket of notice of a sealed document. Wash. Post v. Robinson, 935 F.2d 282, 288 (D.C. Cir. 1991). Generally, the procedural prerequisites are:
1. The government must file a written motion to seal, and notice of that motion must be entered in the public docket;
2. The trial court must promptly allow interested persons an opportunity to be heard before ruling on the motion and entering the sealing order;
3. The trial court must articulate specific findings on the record demonstrating that the decision to seal is narrowly tailored and essential to preserve a compelling government interest; however, the trial court may file its findings under seal if it is necessary to protect the secrecy of the document being sealed;
4. The trial court must also place the fact that a document has been sealed on the public docket; and
5. The government may seek leave of the court to file under seal its written motion to seal, and any supporting documents, pending the disposition of the motion by the court; however, notice of the written motion to seal must be entered on the public docket, and interested individuals must be afforded an opportunity to be heard before the trial court ultimately rules on the motion and makes specific findings on the record.
Id.
CompareII. Procedure for asserting right of access to proceedings and records
CompareA. Media standing to challenge closure
Representatives of an excluded group must be given the opportunity to present the grounds for their objection to exclusion. In re Wash. Post Co. 576 F. Supp. 76 (D.D.C. 1983) (citing Globe Newspaper Co. v. Super. Ct., 457 U.S. 596 n.25 (1982) and Gannett Co. v. DePasquale, 443 U.S. 368, 401 (1979) (Powell, J., concurring)). The D.C. Circuit has also applied the "capable of repetition, yet evading review" exception to the mootness doctrine in access cases. Wash. Post v. Robinson, 935 F.2d 282, 288 n.7 (D.C. Cir. 1991) (applying doctrine where media sought and later received sealed plea agreements); In re Reporters Comm. for Freedom of the Press, 773 F.2d 1325, 1328–30 (D.C. Cir 1985) (applying doctrine where media sought and had later been provided sealed court records and depositions included in summary judgment and trial exhibits); Getty Images News Servs. Corp. v. Dep't of Def., 193 F. Supp. 2d 112, 117 (D.D.C. 2002) (finding doctrine did not apply where a specific media organization sought review of its exclusion from Afghanistan regional media pool and there was no “reasonable expectation” that the controversy would recur once open media access became possible in the country).
In D.C. district court, absent statutory authority, no cases or documents may be sealed without an order from the court. Local Civil Rule 5.1(h)(1). The motion to seal is a mandatory prerequisite, and failure to file a motion to seal along with any pleading with the intention of being sealed will result in the pleading being placed in the public record. Id. A district court sealing order may be appealed to the D.C. Circuit.
In cases before the D.C. Circuit, parties or other interested persons may move at any time to unseal any portion of the record, including confidential briefs or appendices filed under Circuit Rule 47.1. See D.C. Cir. Rule 47.1(c). If materials filed under seal are referred to in briefs, the parties must file two sets of briefs redacting reference to sealed material and marked as such. Cir. Rule 41(d)(1). Records placed under seal in the district court or before an agency remains under seal unless otherwise ordered. Cir. Rule 47.1(a). If the case arises from the district court, a motion to unseal will ordinarily be referred to that court, and, if necessary, the record will be remanded for that purpose. Cir. Rule 47.1(c). The D.C. Circuit may, when the interests of justice require, decide such a motion itself. Cir. Rule 47.1(c). If unsealing is ordered by the D.C. Circuit, the record may be remanded to the district court for unsealing. Cir. Rule 47.1(c). Unless otherwise ordered, the filing of a motion to unseal any portion of the record does not delay the filing of any brief under any scheduling order. Cir. Rule 47.1(c).
CompareB. Procedure for requesting access in criminal cases
The local rules for the D.C. federal district courts instruct news organizations seeking to challenge a closure in a criminal case to file a miscellaneous proceeding rather than to intervene directly in the criminal case:
OPPOSITION BY NON-PARTIES
Any news organization or other interested person may be heard orally or in writing in opposition to a closure motion by a party. When any papers are filed by a non-party opposing closure, the matter shall be assigned a Miscellaneous docket number and shall be governed by LCrR 57.6. A non-party seeking to appeal from an order of closure shall be responsible for filing in the Miscellaneous proceeding the order from which the appeal is taken, and such other parts of the record of the criminal case as may be necessary to determination of the appeal.
D.D.C. Local Crim. R. 17.2(c).
In cases before the D.C. Circuit, parties or other interested persons may move at any time to unseal any portion of the record, including confidential briefs or appendices filed under Circuit Rule 47.1. See D.C. Cir. Rule 47.1(c). Notably, the D.C. Circuit Rules do not require a non-party to file a motion to intervene in the appeal first.
If materials filed under seal are referred to in briefs, the parties must file two sets of briefs redacting reference to sealed material and marked as such. Cir. Rule 41(d)(1). Records placed under seal in the district court or before an agency remain under seal. Cir. Rule 47.1(a). If the case arises from the district court, the motion to unseal will ordinarily be referred to that court, and, if necessary, the record will be remanded for that purpose. Cir. Rule 47.1(c). The D.C. Circuit may, when the interests of justice require, decide such a motion itself. Cir. Rule 47.1(c). If unsealing is ordered by the D.C. Circuit, the record may be remanded to the district court for unsealing. Cir. Rule 47.1(c). Unless otherwise ordered, the filing of a motion to unseal any portion of the record does not delay the filing of any brief under any scheduling order. Cir. Rule 47.1(c).
CompareC. Procedure for requesting access in civil matters
In the D.C. federal district courts, journalists and news outlets seeking access in civil matters should file a motion to intervene in the case and to unseal the records or open the proceedings. Local Civ. R. 7(j); Fed. R. Civ. P. 24(b).
In cases before the D.C. Circuit, parties or other interested persons may move at any time to unseal any portion of the record, including confidential briefs or appendices filed under Circuit Rule 47.1. See D.C. Cir. Rule 47.1(c). Notably, the D.C. Circuit Rules do not require a non-party to file a motion to intervene in the appeal first.
If materials filed under seal are referred to in briefs, the parties must file two sets of briefs redacting reference to sealed material and marked as such. Cir. Rule 41(d)(1). Records placed under seal in the district court or before an agency remains under seal unless otherwise ordered. Cir. Rule 47.1(a). If the case arises from the district court, a motion to unseal will ordinarily be referred to that court, and, if necessary, the record will be remanded for that purpose. Cir. Rule 47.1(c). The D.C. Circuit may, when the interests of justice require, decide such a motion itself. Cir. Rule 47.1(c). If unsealing is ordered by the D.C. Circuit, the record may be remanded to the district court for unsealing. Cir. Rule 47.1(c). Unless otherwise ordered, the filing of a motion to unseal any portion of the record does not delay the filing of any brief under any scheduling order. Cir. Rule 47.1(c).
CompareD. Obtaining review of initial court decisions
Journalists can immediately appeal a denial of access in federal court under the “collateral order doctrine,” where the trial court’s decision is “conclusive,” it “resolve[s] important questions separate from the merits,” and is “effectively unreviewable on appeal from the final judgment in the underlying action.” Dhiab v. Obama, 787 F.3d 563, 566 (D.C. Cir. 2015) (quoting Mohawk Indus. v. Carpenter, 558 U.S. 100, 106 (2009)). However, where the trial court’s decision on the access matter is not final—for example, where the court has further proceedings scheduled on the matter—the decision is not appealable under the “collateral order doctrine.” Id. at 566.
The D.C. Circuit has also considered access cases even after a proceeding is over, applying an exception to the mootness doctrine for cases that are "capable of repetition, yet evading review." Wash. Post v. Robinson, 935 F.2d 282, 288 n.7 (D.C. Cir. 1991) (applying exception where media sought and later received sealed plea agreements); In re Reporters Comm. for Freedom of the Press, 773 F.2d 1325, 1328–30 (D.C. Cir 1985) (applying exception where media sought and was later provided sealed court records and depositions included in summary judgment and trial exhibits).
CompareIII. Access to criminal proceedings
CompareA. In general
The D.C. Circuit has followed Richmond Newspapers, granting access to criminal proceedings under the First Amendment where applicable, before considering common law access rights. In re N.Y. Times Co., 585 F. Supp. 2d 83, 87 n.3 (D.D.C. 2008) (applying First Amendment right of access to certain sealed search warrant materials relating to the government’s investigation into the anthrax mailings of 2001). "The First Amendment guarantees the press and the public a general right of access to court proceedings and court documents unless there are compelling reasons demonstrating why it cannot be observed.” Wash. Post v. Robinson, 935 F.2d 282, 287 (D.C. Cir. 1991). The presumption of access to criminal judicial proceedings can be overridden only if “(1) closure serves a compelling interest; (2) there is a substantial probability that, in the absence of closure, this compelling interest would be harmed; and (3) there are no alternatives to closure that would adequately protect the compelling interest.” Wash. Post v. Robinson, 935 F.2d 282, 290 (D.C. Cir. 1991).
CompareB. Pretrial proceedings
The D.C. Circuit has held that public rights of access attach to “completed” plea agreements, but not to “unconsummated” plea agreements. United States v. El-Sayegh, 131 F.3d 158, 160-61 (D.C. Cir. 1997) (finding no right of access to a withdrawn plea agreement); Wash. Post v. Robinson, 935 F.2d 282, 290 (D.C. Cir. 1991) (holding that First Amendment protects public access to plea agreement on which judgment has been entered); see also United States v. Brice, 649 F.3d 793, 796 (D.C. Cir. 2011) (denying access to material witness proceedings).
A D.C. district court found no right of access to an entire deposition given in a criminal prosecution by former President Ronald Reagan in view of the strong likelihood that information damaging to national security would be revealed. United States v. Poindexter, 732 F. Supp. 165 (D.D.C. 1990) (media given access to videotape of deposition, edited to redact any national security information).
Local D.C. courts recognize that the public and press have a presumptive, First Amendment right of access to written jury questionnaires used as part of the voir dire process. In re Access to Jury Questionnaires, 37 A.3d 879, 885–87 (D.C. 2012).
The D.C. district court’s Local Criminal Rule 17.1 governs the procedure necessary to close pretrial proceedings in criminal cases. LCrR17.1(c) sets forth the procedure for media organizations opposing closing pretrial proceedings, and provides that:
[A]ny news organization or other interested person may be heard orally or in writing in opposition to a closure motion by a party. When any papers are filed by a non-party opposing closure, the matter shall be assigned a Miscellaneous docket number and shall be governed by LCrR 57.6. A non-party seeking to appeal from an order of closure shall be responsible for filing in the Miscellaneous proceeding the order from which the appeal is taken, and such other parts of the record of the criminal case as may be necessary to determination of the appeal.
Id.
CompareC. Criminal trials
District courts in the District of Columbia regularly cite to Richmond Newspapers, Inc. v Virginia, 448 U.S. 555 (1980), affirming that criminal trials are open to the public and media. See, e.g., In re Special Proceedings, 842 F. Supp. 2d 232, 239 (D.D.C. 2012).
One federal district court in D.C. ordered disclosure of wiretap transcripts, which had been prepared by the prosecution as an aid to the jury in a criminal trial, “as soon as practicable after, if not simultaneously with, their presentation to the jury.” United States v. Thompson, 17 Media L. Rep. 1004, 1989 WL 248625 (D.C. Cir. 1989). The D.C. Circuit affirmed, finding that the claims of defendants awaiting trial on related charges and unindicted third parties mentioned in the transcripts did not outweigh the presumption of public access to judicial records. Id.
In the Guantanamo Bay Detainee Litigation, the D.C. district court issued a standing order, outlining procedures for filing documents and holding certain hearings and in camera sessions. In re Guantanamo Bay Detainee Litig., 2009 WL 50155 (D.D.C. 2009).
CompareD. Post-trial proceedings
As a matter of first impression, a D.C. district court held that the public has a right to access filings in habeas corpus proceedings. In re Guantanamo Bay Detainee Litig., 624 F. Supp. 2d 27 (D.D.C. 2009). But the D.C. Circuit later held, “[i]n habeas corpus cases, there is no tradition of public access comparable to that recounted in Press-Enterprise II with respect to criminal trials.” Dhiab v. Trump, 852 F.3d 1087, 1093 (D.C. Cir. 2017). The court reasoned that this is because “there is no tradition of publicizing secret national security information.” Id. In Dhiab, a Guantanamo detainee and news media organizations as intervenors requested access during habeas proceedings to unredacted video showing the force-feeding of a detainee during a hunger strike. The D.C. Circuit reversed the district court’s finding of a qualified First Amendment right of access to sealed classified national security information. Id.
A district court found a First Amendment right of access to a report on prosecutorial misconduct during a criminal trial, filed in subsequent proceedings related to the alleged misconduct. In re Special Proceedings, 842 F. Supp. 2d 232, 242 (D.D.C. 2012). The court explained that the First Amendment right of access “serves an important function of monitoring prosecutorial or judicial misconduct.” Id. at 242 (quoting Wash. Post v. Robinson, 935 F.2d 282, 288 (D.C. Cir. 1991)). Additionally, access to the report played a significant role in informing the public regarding criminal trials in general and the particular criminal trial in which the alleged misconduct occurred. Id. at 243–44.
CompareE. Appellate proceedings
In cases before the D.C. Circuit, parties or other interested persons may move at any time to unseal any portion of the record, including confidential briefs or appendices filed under Circuit Rule 47.1. See D.C. Cir. Rule 47.1(c).
If materials filed under seal are referred to in briefs, the parties must file two sets of briefs redacting reference to sealed material and marked as such. Cir. Rule 47(d)(1).
There is also a presumption that records placed under seal in the district court or before an agency remains under seal. Cir. Rule 47.1(a).
If the case arises from the district court, the motion will ordinarily be referred to that court, and, if necessary, the record will be remanded for that purpose. Cir. Rule 47.1(b). The D.C. Circuit may, when the interests of justice require, decide such a motion itself. Cir. Rule 47.1(c). If unsealing is ordered by the D.C. Circuit, the record may be remanded to the district court for unsealing. Cir. Rule 47.1(c). Unless otherwise ordered, the filing of a motion to unseal any portion of the record does not delay the filing of any brief under any scheduling order. Cir. Rule 47.1(c).
CompareIV. Access to criminal court records
CompareA. In general
“The public's right of access to judicial records derives from two independent sources: the common law and the First Amendment.” In re Fort Totten Metrorail Cases, 960 F. Supp. 2d 2, 5 (D.D.C. 2013).
Whether the public has a qualified First Amendment right of access to criminal court materials depends on whether the place and process have historically been open to the press and general public and whether public access plays a significant positive role in the functioning of the particular process in question. In re N.Y. Times Co., 585 F.Supp.2d 83, 87 n. 3 (D.D.C. 2008) (applying First Amendment right of access to certain sealed search warrant materials relating to the government’s investigation into the anthrax mailings of 2001).
"The narrow First Amendment right of access to information recognized in Richmond Newspapers does not extend to non-judicial documents that are not part of a criminal trial." Ctr. for Nat. Sec. Studies v. U.S. Dep’t of Justice, 331 F.3d 918 (D.C. Cir. 2003) (First Amendment did not require release by Department of Justice of information concerning persons detained during investigation into major terrorist attack, including names and attorneys' names for those not criminally charged, and dates and locations of arrest, detention and release for all detainees).
Under the common law, there is a strong presumption in favor of public access to “judicial records.” United States v. Harris, 204 F. Supp. 3d 10, 16 (D.D.C. 2016) (quoting EEOC v. Nat'l Children's Ctr. Inc., 98 F.3d 1406, 1409 (D.C. Cir. 1996)). The D.C. Circuit has held that the test for determining whether or not a document is a “judicial record” is “the role it plays in the adjudicatory process.” United States v. El-Sayegh, 131 F.3d 158, 163 (D.C. Cir. 1997). While all documents admitted into evidence or filed with the court are judicial records, Wash. Legal Found. v. U.S. Sentencing Comm'n, 89 F.3d 897, 906 (D.C. Cir. 1996), not all material reviewed by a court over the course of the tenure of a case constitutes a judicial record. See El-Sayegh, 131 F.3d at 163.
The D.C. Circuit applies the six-factor Hubbard test to determine when the common law right of access to judicial records is overcome:
(1) the need for public access to the documents at issue; (2) the extent of previous public access to the documents; (3) the fact that someone has objected to disclosure, and the identity of that person; (4) the strength of any property and privacy interests asserted; (5) the possibility of prejudice to those opposing disclosure; and (6) the purposes for which the documents were introduced during the judicial proceedings.
United States v. Hubbard, 650 F.2d 293, 317–22 (D.C. Cir. 1981).
CompareB. Arrest records
The D.C. Circuit has held that the First Amendment right of access to information recognized in Richmond Newspapers “does not extend to non-judicial documents that are not part of a criminal trial." Ctr. for Nat. Sec. Studies v. U.S. Dep’t of Justice, 331 F.3d 918 (D.C. Cir. 2003) (First Amendment did not require release by Department of Justice of information concerning persons detained during investigation into major terrorist attack, including names and attorneys' names for those not criminally charged, and dates and locations of arrest, detention and release for all detainees).
CompareC. Dockets
Documents for which there is a First Amendment right of access must be publicly docketed. Wash. Post v. Robinson, 935 F.2d 282, 289 (D.C. Cir. 1991) (holding that motions to seal plea agreements, for which there is a First Amendment right of access, must be publicly docketed). The D.C. Circuit has also cited with approval a number of other circuits' precedents requiring certain public docketing procedures. In re Sealed Case, 199 F.3d 522 (D.C. Cir. 2000) (finding that "[i]t is true that the courts have required public docketing in some judicial proceedings," but refusing to establish public docketing system for grand juries).
In Friedman v. Sebelius, 672 F. Supp. 2d 54 (D.D.C. 2009), a D.C. district court, at the request of the Department of Health and Human Services, ordered a criminal docket unsealed in a case concerning the defendants' misbranding of prescription drugs.
CompareD. Warrants, wiretaps and related materials
Warrants and related records have been considered on a case-by-case basis in the District of Columbia. For instance, in In re WP Company, the district court found that, after the investigation was closed, there was a qualified right of access to records related to a search warrant issued to a specific individual in connection with possible illegal campaign finance activities undertaken during the 2010 D.C. mayoral election. In re WP Co., No. CV 16-MC-351 (BAH), 2016 WL 1604976, at *2 (D.D.C. Apr. 1, 2016) (ordering the government to submit proposed redactions to the court before unsealing the dockets and allowing access to redacted documents). However, just a few months after that order, the same court clarified that its order only allowed the production of documents related to the individual specified in the Post’s initial application and not to all warrants in the larger investigation. In re WP Co., 201 F. Supp. 3d 109, 113–16 (D.D.C. 2016).
Another D.C. district court recognized a right of public access to post-investigation warrant materials. In re N.Y. Times Co., 585 F. Supp. 2d 83 (D.D.C. 2008) (allowing access to warrant materials related to the search of property owned by a person of interest in the criminal investigation of the mailing of anthrax to members of Congress and the media after 9/11).
As to the documents underlying a material witness warrant, the D.C. Circuit has allowed sealing in a prosecution for sexual abuse, when the underlying documents contained “intensely private and painful information about [two juvenile victims'] medical and mental health issues” and allowing redaction of the witnesses' names, rather than sealing the documents, would “entail a grotesque invasion of the victims' privacy.” United States v. Brice, 649 F.3d 793, 797 (D.C. Cir. 2011)).
There is a common law right of access to transcripts of tape recordings introduced into evidence at a criminal trial, and such access should occur as soon as practicable after, if not simultaneously with, the presentation of the transcripts to the jury. In re News World Commnc’ns Inc., 17 Media L. Rep. 1001 (D.D.C. 1989) (concerns of criminal defendants mentioned in transcripts and still awaiting trial were not sufficiently compelling to overcome public's right of access, in view of ability of voir dire to fully protect those defendants' fair trial rights, and as any harm to unindicted third parties who are mentioned in transcripts is not serious enough to warrant restricting public's right of access); see also In re N.Y. Times Co., 585 F. Supp. 2d 83, 87 n.3 (D.D.C. 2008) (recognizing First Amendment and common law right of access to certain sealed search warrant materials relating to the government’s investigation into the anthrax mailings of 2001, but allowing government to redact name of confidential informant); United States v. Thompson, 1989 WL 248625 (D.C. Cir. 1989) (wiretap transcripts prepared by prosecution for jury in criminal trial, which were made public “as soon as practicable after, if not simultaneously with, their presentation to the jury,” were disclosed because claims of defendants who were awaiting trial on related charges, and unindicted third parties mentioned in transcripts, were insufficient to outweigh presumption of public access to judicial records); In re NBC, 653 F.2d 609 (D.C. Cir. 1981) (district court erred in denying television broadcasters' post-trial application to inspect and copy video and audio tapes introduced as evidence and played in open court during “Abscam” trial of former U.S. congressman; government made no showing that release of tapes would risk prejudice to defendant's hypothetical second trial).
However, courts have successfully kept wiretap evidence and applications from the public where there exists a risk of prejudice. In re NBC, 653 F.2d 609 (D.C. Cir. 1981) (providing access to documents but stating that the court has discretion to redact transcripts and recordings). Courts have also prevented access to preserve the sanctity of an ongoing investigation. In re Sealed Documents, 15 Media L. Rep. 1983 (D.D.C. 1988) (government's compelling interest in successful completion of ongoing investigation into fraud in defense procurement process outweighs public's common law and First Amendment rights of access to materials relating to search warrants executed as part of investigation).
D.C. courts have also addressed requests to unseal pen register applications. Pen registers are devices that record the phone numbers of all outgoing and incoming calls on a particular telephone line (but not the contents). The Pen Register Act, 18 U.S.C. § 3122, et seq., requires that court orders allowing pen registers must be sealed and that the existence of the pen register not be disclosed. 18 U.S.C. § 3123(d). A D.C. district court has recognized that this statutory language requires only sealing of the pen register order itself, not the sealing of any and all information the order may contain. In re Leopold, 300 F. Supp. 3d 61, 83 (D.D.C. 2018), reconsideration denied, 327 F. Supp. 3d 1 (D.D.C. 2018) (citing Labow v. U.S. Dep’t of Justice, 831 F.3d 523, 528 (D.C. Cir. 2016)), appeal pending. So, the information in a pen register order that appears in other documents is not necessarily protected and could be disclosed.
The same district court held that there is no First Amendment right of access to pen register information because there is not a longstanding tradition of public access to pen register materials, but that decision is currently on appeal. In re Leopold, 300 F. Supp. 3d at 86. However, that court recognized a common law right of access to pen register warrant materials that do not reveal personally identifying information when the U.S. attorney’s office did not contend that such disclosure would impede an ongoing criminal investigation or reveal information that would impinge on personal privacy. Id. at 91.
The Stored Communications Act, 18 U.S.C. § 2703, allows the government to compel service providers to disclose records or information pertaining to their customers as well as the contents of their customers’ stored electronic communications. In re Leopold, 300 F. Supp. 3d at 84 (quoting In re Search of Info. (“Google”), No. 16-MJ-00757 (BAH), 2017 WL 3445634, at *6 (D.D.C. July 31, 2017)). The Stored Communications Act does not require sealing of related warrants or orders. Like with pen register orders, a D.C. district court has recognized a common law right of access to Stored Communications Act materials that do not reveal personally identifying information when the U.S. attorney’s office did not contend that such disclosure would impede an ongoing criminal investigation or reveal information that would impinge on personal privacy. Id. at 91.
CompareE. Discovery materials
A D.C. district court found no right of access to an entire deposition given by former President Ronald Reagan in a criminal prosecution in view of the strong likelihood that information damaging to national security would be revealed. In United States v. Poindexter, 732 F. Supp. 165, 167 (D.D.C. 1990), however, the court granted access to an edited version with national security information redacted. Id. at 170 (allowing press to view tape as soon as editing process was completed and providing stenographic transcript of deposition).
CompareF. Pretrial motions and records
The D.C. Circuit has recognized a limited right of access to pretrial motions and records. Wash. Post v. Robinson, 935 F.2d 282, 289 (D.C. Cir. 1991) (holding that motions to seal plea agreements, for which there is a First Amendment right of access, must be publicly docketed); United States v. Hubbard, 650 F.2d 293, 317–22 (D.C. Cir. 1980) (applying test, determining whether to unseal, to documents seized from third-party defendant Church of Scientology that were subsequently introduced, under seal, at pre-trial suppression hearing by defendant church officers and employees for purposes of demonstrating unlawfulness of search). However, in In re A.H. Belo Corp., 66 F. Supp. 2d 47, 49 (D.D.C. 1999), the court denied access to tapes and transcripts of anticipated evidence in former Secretary of Housing and Urban Development's corruption proceedings. The court reviewed the materials in camera as part of an otherwise open pre-trial suppression hearing and ordered them withheld from the public because the documents were not admitted into evidence and the defendant pled guilty prior to trial in part to prevent the disclosure of sensitive information about himself. Id.
CompareG. Trial records
The D.C. Circuit applies the general rule that as a public event, "what transpires in the courtroom is public property." In re Nat'l Broad. Co., Inc. 653 F.2d 609 (D.C. Cir. 1981) (granting post-verdict access to video and audio tapes played to the jury at trial). The factors to be considered, in addition to the presumption in favor of access to judicial records, are (1) whether the records were admitted into evidence, (2) whether they were submitted to the jury, (3) whether the evidence was seen or heard by members of the public attending the trial, (4) the nature of the trial and/or the records sought, (5) potential prejudice to defendants if new trial is likely, and (6) possible injury to innocent third-parties. Id. However, because of the presumption of public access, a court must seek to ameliorate potential harm to defendants through procedural safeguards such as voir dire. Id.
The D.C. Circuit has provided access to various types of trial records. United States v. Thompson, No. 89-3160, 1989 WL 248625 (D.C. Cir. Oct. 13, 1989) (access provided to wiretap transcripts made “as soon as practicable after, if not simultaneously with, their presentation to the jury”); In re News World Commc’ns Inc., 17 Media L. Rep. 1001 (D.D.C. 1989) (common law right of access to transcripts of tape recordings introduced into evidence at criminal trial made as soon as practicable); In re NBC, 653 F.2d 609 (D.C. Cir. 1981) (district court erred in denying television broadcasters' post-trial application to inspect and copy video and audio tapes introduced as evidence and played in open court during “Abscam” trial of former U.S. congressman; government made no showing that release of tapes would risk prejudice to defendant's hypothetical second trial). But see In re Wash. Post Co., 576 F. Supp. 76 (D.D.C. 1983) (court refused to unseal portions of bench conference transcripts in criminal cases because the unsealed portions were not evidence and would not be admissible as evidence, disclosure would have prejudicial effect on jurors and witnesses, and transcript would be automatically unsealed when verdict was returned by the jury).
CompareH. Post-trial records
A D.C. district court has held that sentencing memoranda are subject to the common-law presumption of access and the First Amendment's qualified right of public access. United States v. Harris, 204 F. Supp. 3d 10, 15 (D.D.C. 2016) (but allowing the sealing of the government’s addendum to its sentencing memorandum because of the government’s compelling interest in maintaining confidentiality of those assisting law enforcement).
The D.C. Circuit has held that certain sentencing documents are not public records. Wash. Legal Found. v. U.S. Sentencing Comm’n, 89 F3d 897 (D.C. Cir. 1996) (documents compiled by the U.S. Sentencing Commission's Advisory Working Group on Environmental Sanctions not public records). It upheld the Federal Youth Corrections Act, which provided that a minor’s conviction records be “automatically set aside” in certain circumstances, and requires that such records be physically removed from central criminal files, that they be placed in separate storage facilities, and that they not be disseminated to anyone, public or private, except law enforcement authorities conducting bona fide criminal investigations. Doe v. Webster, 606 F.2d 1226 (D.C. Cir. 1979).
CompareI. Appellate records
In cases before the D.C. Circuit, parties or other interested persons may move at any time to unseal any portion of the record, including confidential briefs or appendices filed under Circuit Rule 47.1. See D.C. Cir. Rule 47.1(c). If materials filed under seal are referred to in briefs, the parties must file two sets of briefs redacting reference to sealed material and marked as such. Cir. Rule 41(c)(1). There is also a presumption that records placed under seal in the district court or before an agency remains under seal. Cir. Rule 47.1(a). If the case arises from the district court, the motion will ordinarily be referred to that court, and, if necessary, the record will be remanded for that purpose. Cir. Rule 47.1(b). The D.C. Circuit may, when the interests of justice require, decide such a motion itself. If unsealing is ordered by the D.C. Circuit, the record may be remanded to the district court for unsealing. Unless otherwise ordered, the filing of a motion to unseal any portion of the record does not delay the filing of any brief under any scheduling order.
CompareJ. Other criminal court records issues
In 2014 and 2015, the District of Columbia legalized the possession of small amounts of marijuana for personal use. Legalization of Possession of Minimal Amounts of Marijuana for Personal Use Initiative of 2014, 62 D.C. Reg. 880 (Jan. 23, 2015), codified at D.C. Code § 48-904.01(a)(1). That same year, the District enacted legislation allowing for the sealing of criminal records related to now-legalized offenses. Record Sealing for Decriminalized and Legalized Offenses Act of 2014, codified at D.C. Code § 16-803.02. This provision has not yet been challenged in federal court. However, the Court of Appeals for the District of Columbia remanded for reconsideration a denied request to seal court proceedings and arrest records for possession of PCP and marijuana in 1983. Washington v. United States, --- A.3d ---, 2019 WL 1811705 (D.C. Apr. 25, 2019). While the Court of Appeals agreed that the appellant had no right to seal the records related to his PCP charge, the trial court was asked to reconsider sealing records of the accompanying marijuana-possession arrest and charge. Id. This is a new area of law in the District of Columbia and could give rise to additional sealing of historic records in the future.
CompareV. Access to civil proceedings
CompareA. In general
The D.C. Circuit has not ruled whether the First Amendment affords the public a right of access to civil proceedings. The district courts have, however, made passing reference to First Amendment access rights in deciding motions in civil cases. See e.g. In re N.Y. Times Co., 585 F. Supp. 2d 83, 87 n. 3 (D.D.C. 2008) (citing Ctr. for Nat'l Sec. Studies v. U.S. Dep't of Justice, 331 F.3d 918, 935 (D.C. Cir. 2003) (holding that the First Amendment right of public access “does not extend to non-judicial documents” compiled during an executive branch investigation)); In re A.H. Belo Corp. (United States v. Cisneros), 66 F. Supp. 2d 47, 49 (D.D.C. 1999) (“Under the First Amendment, the media and the public are guaranteed a right of access to public hearings and to inspect certain documents subject to a two-part test. First, access must have been historically available. Second, access must serve an important function of monitoring prosecutorial or judicial misconduct.” (internal quotation marks and citations omitted)); Nat'l Assoc. of Waterfront Emp’rs v. Chao, 587 F. Supp. 2d 90, 98 (D.D.C. 2008) (“Courts have found a legitimate public interest in access to civil trials as well.”).
The right of public access has been extended to non-judicial hearings, although not on First Amendment grounds. Fitzgerald v. Hampton, 467 F.2d 755, 764 (D.C. Cir. 1972) (finding a due process right of public access to a Civil Service Commission employee removal hearing); see also Nat'l Ass'n of Waterfront Emp’rs v. Chao, 587 F. Supp. 2d 90, 98 (D.D.C. 2008) (“Like the right of public access in civil cases, public policy favors public access to administrative proceedings.”); Fitzgerald v. Hampton, 467 F.2d 755, 756 (D.C. Cir. 1972) (requiring that hearing before U.S. Civil Service Commission be open to the public).
CompareB. Pre-trial proceedings
CompareC. Trials
“Every trial on the merits must be conducted in open court and, so far as convenient, in a regular courtroom.” Fed. R. Civ. P. 77(b); Fitzgerald v. Hampton, 467 F.2d 755 (D.C. Cir. 1972) (citing Rule 77(b) that “[a]ll trials upon the merits shall be conducted in open court”). “Courts have found a legitimate public interest in access to civil trials . . . .” Nat’l Ass'n of Waterfront Emp’rs v. Chao, 587 F. Supp. 2d 90 (D.D.C. 2008).
CompareD. Post-trial proceedings
CompareE. Appellate proceedings
In cases before the D.C. Circuit, parties or other interested persons may move at any time to unseal any portion of the record, including confidential briefs or appendices filed under Circuit Rule 47.1. See D.C. Cir. Rule 47.1(c); see, e.g., In re Grand Jury Subpoena, Judith Miller, 493 F.3d 152 (D.C. Cir. 2007) (Dow Jones and the Associated Press moved to unseal portions of proceedings regarding a federal grand jury investigation). If materials filed under seal are referred to in briefs, the parties must file two sets of briefs redacting reference to sealed material and marked as such. Cir. Rule 47(d)(1). There is also a presumption that records placed under seal in the district court or before an agency remains under seal. Cir. Rule 47.1(a). If the case arises from the district court, the motion will ordinarily be referred to that court, and, if necessary, the record will be remanded for that purpose. Cir. Rule 47.1(b). The D.C. Circuit may, when the interests of justice require, decide such a motion itself. If unsealing is ordered by the D.C. Circuit, the record may be remanded to the district court for unsealing. Unless otherwise ordered, the filing of a motion to unseal any portion of the record does not delay the filing of any brief under any scheduling order. Cir. Rule 47.1(c).
CompareVI. Access to civil records
CompareA. In general
At least one district court in the District of Columbia has applied a common law right of access to civil records. See In re Fort Totten Metrorail Cases, 960 F. Supp. 2d 2, 5 (D.D.C. 2013). In deciding whether to disclose a public record in a civil case pursuant to the common law, a court must (1) determine that the record is, in fact, a “judicial record” and (2) balance the “public’s right of access against the interests favoring nondisclosure.” Id. at 6. There is a “strong presumption in favor of public access to judicial proceedings.” Id. (citing EEOC v. Nat’l Children’s Ctr., Inc., 98 F.3d 1406, 1409 (D.C. Cir. 1996)). The court should consider the following six factors in determining whether the presumption may be overcome:
(1) [T]he need for public access to the documents at issue; (2) the extent of previous public access to the documents; (3) the fact that someone has objected to disclosure, and the identity of that person; (4) the strength of any property and privacy interests asserted; (5) the possibility of prejudice to those opposing disclosure; and (6) the purposes for which the documents were introduced during the judicial proceedings.
Id. (as originally articulated in United States v. Hubbard, 650 F.2d 293 (D.C. Cir. 1980), and referred to as “Hubbard factors”). “[A] strong showing on one Hubbard factor can outweigh several other factors.” Id. at 11 (finding minors’ settlement records should be disclosed based on a single factor, even though most Hubbard factors weighed in favor of nondisclosure).
At least one D.C. district court has found that “under the First Amendment the public has a limited right to access the unclassified factual returns in . . . habeas proceedings,” after citing with approval other circuits’ precedents granting a First Amendment right of access to civil records. In re Guantanamo Bay Detainee Litig., 630 F. Supp. 2d 1, 10–12 (D.D.C. 2009) (noting that habeas proceedings are considered civil proceedings).
The D.C. Circuit has defined “judicial records” subject to a common law right of access as those that the court makes a decision about or otherwise relies on, S.E.C. v. Am. Int’l Grp., 712 F.3d 1, 4 (D.C. Cir. 2013), or “can affect a court’s decisionmaking process even if the court’s opinion never quotes or cites it,” Metlife, Inc. v. Fin. Stability Oversight Council, 865 F.3d 661, 667 (D.C. Cir. 2017). For example, the D.C. Circuit recognized a common law right of access to sealed portions of the parties’ briefing and administrative record submitted in support of a summary judgment motion, even though the court’s decision did not reference them specifically. Id. However, the D.C. Circuit has held that reports created pursuant to a consent decree but never filed with the court were not judicial records and therefore not subject to a First Amendment or common law right of access. Am. Int’l Grp., 712 F.3d at 4–5.
CompareB. Dockets
Generally, dockets of all civil proceedings are accessible via the PACER system. However, on occasion a court may grant anonymity to the parties. See United States v. Microsoft Corp., 56 F.3d 1448, 1464 (D.C. Cir. 1995) (it is within the discretion of the district court to grant the “rare dispensation” of anonymity) (quoting James v. Jacobson, 6 F.3d 233, 238 (4th Cir. 1993)); see also John Doe Co. v. Consumer Fin. Prot. Bureau, 321 F.R.D. 31, 33 (D.D.C. 2017) (granting company’s request to proceed under a pseudonym while seeking to enjoin the Consumer Financial Protection Bureau from publicizing its investigation of the company). But see Sandberg v. Vincent, 319 F. Supp. 3d 422 (D.D.C. 2018) (denying alleged sexual assault victim’s request to proceed under a pseudonym). Notwithstanding the rare exception, disclosure of parties' identities furthers the public interest in knowing the facts surrounding judicial proceedings. Qualls v. Rumsfeld, 228 F.R.D. 8, 10 (D.D.C. 2005). The court will generally weigh the following considerations to determine whether a party should be permitted to proceed anonymously:
[1] [W]hether the justification asserted by the requesting party is merely to avoid the annoyance and criticism that may attend any litigation or is to preserve privacy in a matter of sensitive and highly personal nature; [2] whether identification poses a risk of retaliatory physical or mental harm to the requesting party or even more critically, to innocent non-parties; [3] the ages of the persons whose privacy interests are sought to be protected; [4] whether the action is against a governmental or private party; and, relatedly, [5] the risk of unfairness to the opposing party from allowing an action against it to proceed anonymously.
Sandberg v. Vincent, 319 F. Supp. 3d 422, 426 (D.D.C. 2018).
CompareC. Discovery materials
The courts have found no right of access to unfiled pretrial discovery materials. Tavoulareas v. Wash. Post, 724 F.2d 1010 (D.C. Cir. 1984) (finding the press and public have no First Amendment right of access to material submitted during pre-trial discovery in libel action and never used at trial); Anderson v. Ramsey, No. Civ.LA.04-56(GK/JMF), 2005 WL 475141, at *3 (D.D.C. Mar. 1, 2005) (no right of access to unfiled interrogatories and pretrial depositions).
A district court in the District of Columbia has distinguished between a right of public access to the “official judicial record” and a lack of access to the parties’ discovery conducted outside the court. Sibley v. Macaluso, 955 F. Supp. 2d 57, 67 (D.D.C. 2013), aff'd in part, No. 13-7128, 2014 WL 211219 (D.C. Cir. Jan. 9, 2014). For example, in holding that a party was not entitled to access a judge’s personal trial calendar, the court in Sibley cited a D.C. Court of Appeals case finding a “right of public access applies to motions filed with the court concerning discovery, evidence submitted with such motions, and the court’s depositions,” but that a “presumptive right of public access does not apply to depositions, interrogations, or the documents obtained in discovery that are neither submitted as evidence at trial nor filed in connection with motions.” Id. at 66–67 n.9 (citing Mokhiber v. Davis, 537 A.2d 1100, 1109, 1111 (D.C.1988) (per curiam)).
However, one district court has permitted the media to attend a court-supervised third-party deposition. See Avirgan v. Hull, 118 F.R.D. 252 (D.D.C. 1987). In Avirgan, the court denied a protective order prohibiting attendance of press and public at the deposition because annoyance and harassment were insufficient to demonstrate good cause necessary to warrant such protective order. But see Kimberlin v. Quinlan, 145 F.R.D. 1, 1 (D.D.C. 1992) (denying a request by the media to attend a deposition). Further, depositions taken in antitrust litigation under the Publicity in Taking Evidence Act, 15 U.S.C. § 30, must be made available to the public and press. United States v. Microsoft Corp., 165 F.3d 952 (D.C. Cir. 1999) (statutory provision has not been superseded by Fed. R. Civ. P. 26(c), nor does it conflict with standard for granting protective order under that rule); New York v. Microsoft Corp., No. Civ.A.98–1233(CKK), 2002 WL 318565 (D.D.C. Jan. 28, 2002) (news organizations may intervene in other action for limited purpose of opposing defendant's motion to vacate orders requiring public depositions).
CompareD. Pre-trial motions and records
Courts have at times allowed access to previously sealed pretrial records in civil cases. Johnson v. Greater Se. Cmty. Hosp. Corp., 789 F. Supp. 427 (D.D.C. 1992) (reversing previous orders and unsealing entire record applying Hubbard factors). A defendant successfully moved under the public's right of access to unseal all records filed by the plaintiff-relator in a False Claims Act qui tam action in which the U.S. government declined to intervene. United States ex rel. Schweizer v. OCE N.V., 577 F. Supp. 2d 169 (D.D.C. 2008) (applying the Hubbard six-part test and unsealing in favor of the "strong presumptive right of public access to judicial proceedings"). In In re Pepco Employment Litigation, No. 86–0603(RCL), 1992 WL 115611 (D.D.C. May 8, 1992), the court ordered that pretrial motions and exhibits must be unsealed and redacted motions be filed consistent with previous confidentiality orders. News media interveners successfully gained access to a sealed Treasury Department file concerning documents reflecting its internal disciplinary processes. Cobell v. Norton, 157 F. Supp. 2d 82 (D.D.C. 2001).
A D.C. district court unsealed portions of an independent consultant's report attached to an S.E.C. civil complaint seeking to enforce an S.E.C. order. See S.E.C. v. Stratton Oakmont, Inc., 1996 WL 312194 (D.D.C. 1996) (“[O]nce a public request for the information has been made, the Court cannot justify keeping information under seal that is substantially in the public domain.”); cf. In re Pepco Emp’t Litig., No. 86–0603(RCL), 1992 WL 115611 at *8 (D.D.C. May 8, 1992) (granting motion to seal where “[t]he public has had virtually no access to the documents in question”).
A common-law right of public access generally applies to summary judgment briefs and their exhibits. See Metlife, Inc. v. Fin. Stability Oversight Council, 865 F.3d 661, 675 (D.C. Cir. 2017). However, the D.C. Circuit previously denied access to records sealed in the summary judgment record. See In re Reporters Comm. for Freedom of the Press, 773 F.2d 1325 (D.C. Cir. 1985) (denying access to pretrial materials considered by the court in deciding summary judgment motions). And a D.C. district court has denied a request to unseal briefs and exhibits in a motion for summary judgment where the court denied the motion as moot; thus, the “Court did not rely on the parties’ briefs to reach a determination, [and] these filings did not constitute ‘judicial records’ to which the common law right of access attaches.” Herron v. Fannie Mae, No. CV 10-943 (RMC), 2016 WL 10677599, at *1 (D.D.C. June 30, 2016).
Movants who filed motions with the expectation that they would remain sealed were given the opportunity to withdraw their submissions within five days of a required deadline for disclosure. In re North, 21 F.3d 434 (D.C. Cir. 1994). Under the Publicity in Taking Evidence Act, 15 U.S.C. § 30, depositions taken in antitrust litigation were ordered to be made available to the public and press. United States v. Microsoft Corp., 165 F3d 952 (D.C. Cir. 1999) (statutory provision has not been superseded by Fed. R. Civ. P. 26(c), nor does it conflict with standard for granting protective order under that rule).
CompareE. Trial records
“There is a common law right of access to trial records.” John Does I-VI v. Yogi, 110 F.R.D. 629, 633 (D.D.C. 1986). In Yogi, the court denied a party’s request for a “blanket seal of discovery material or exhibits on the trial record” as the party did not prove “with sufficient specificity that the materials sought contain proprietary information” to justify the sealing. Id. at 634.
CompareF. Settlement records
A district court in the District of Columbia ordered the unsealing of minors’ settlement documents in civil litigation against the District of Columbia over a deadly Metrorail accident. In re Fort Totten Metrorail Cases, 960 F. Supp. 2d 2, 7–11 (D.D.C. 2013). The court found, first, that the documents were “plainly” judicial records, as the documents consisted of filings on which the court relied to approve settlement and court orders approving settlement. Id. at 7. Next, the court found that the first Hubbard factor regarding the need for public access to the documents at issue weighed heavily in favor of disclosure.
While the court in Fort Totten recognized a heightened public interest in settlement documents where a government entity is a party, the court emphasized that “a court’s approval of a settlement, even between private parties, is a matter which the public has the right to know about and evaluate . . . .” Id. (internal quotations omitted). “[T]he public has an interest in knowing what terms of settlement a federal judge would approve and perhaps therefore nudge the parties to agree to . . . .” Id.
The court in Fort Totten also found that documents relating to confidential mediation agreements should be disclosed where the District of Columbia initiated litigation to enforce the confidential agreement against the agreement’s express terms. Id. at 15-16 (“[A] party who enters into an agreement to keep mediation strictly confidential should not expect to retain confidentiality if it brings a dispute arising out the mediation to a court’s attention, contrary to the terms of the confidentiality agreement.”). The court has authority to unseal case files sealed pursuant to settlement and prior court order, in view of the lack of any assertion by the parties that the documents must remain sealed because the parties detrimentally relied on the court's confidentiality order, or that the court's purpose in signing the order was to encourage settlement. Sogeclif U.S.A. v. Decludt, 16 Media L. Rep. 1765 (D.D.C. 1989).
CompareG. Post-trial records
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).
CompareH. Appellate records
Generally, dockets of all appellate proceedings are publicly accessible via the PACER system.
CompareI. Other civil court records issues
Classified Records
The D.C. Circuit has held that civil litigants “enjoy no right of access to classified information.” Dhiab v. Trump, 852 F.3d 1087, 1092–93 (D.C. Cir. 2017). While the court distinguished civil from criminal cases (reasoning that the government brings a criminal case and can better control the disclosure of classified information, as opposed to being a defendant in a civil case), the court cast doubt on the public’s ability to obtain national security information in a civil or criminal proceeding. Id. at 1094 (“[T]here is no tradition of publicizing secret national security information involved in civil cases, or for that matter, in criminal cases.”). In Dhiab, the court denied intervening media organizations’ motion to unseal classified video recordings of a Guantanamo detainee that were used in the detainee’s civil habeas corpus proceeding.
Common Law Right of Access not Superseded by Statutes with Confidentiality Provisions
In Metlife, Inc., the D.C. Circuit rejected the notion that “when a statute requires an agency to preserve the confidentiality of administrative materials, the statute supersedes the Hubbard test and requires that agency materials be sealed during litigation.” Metlife, Inc. v. Fin. Stability Oversight Council, 865 F.3d 661, 673–74 (D.C. Cir. 2017) (finding that “Dodd-Frank does not displace the common-law right of public access to judicial records, or the Hubbard test that courts in this Circuit apply when asked to seal or unseal such records”). The court held that statutes containing confidentiality provisions might supersede the common law right of access where “a statutory purpose to the contrary [of disclosure] is evident” but found that no such statutory purpose was evident in the Dodd Frank Act. Id. at 674.
CompareVII. Jury and grand jury access
CompareA. Access to voir dire
Voir dire is “presumptively . . . a public process with exceptions only for good cause shown.” United States v. Aguiar, 894 F.3d 351, 355 (D.C. Cir. 2018) (but finding no prejudice resulted from trial counsel’s failure to object to the closure of voir dire) (citing Press-Enterprise Co. v. Super. Ct., 464 U.S. 501, 505, (1984)).
The D.C. Circuit has found that a district court erred by ordering that voir dire be conducted in camera in a criminal trial except for prospective jurors who elected to be questioned in open court. Cable News Network v. United States, 824 F.2d 1046 (D.C. Cir. 1987) (court failed to make findings that public interrogation of individual would touch on “deeply personal” matters that should legitimately be kept out of public domain, failed to require prospective jurors to make affirmative request for in camera examination, and failed to consider alternatives to closure). Relying on Cable News Network, a D.C. district court permitted the Washington Post's application for public access to certain voir dire questionnaires completed by prospective jurors in a criminal case. In re Wash. Post, No. 92–301 (RCL), 1992 WL 233354 (D.D.C. July 23, 1992).
The D.C. Court of Appeals has also recognized that the media has a presumptive, First Amendment right of access to written jury questionnaires used as part of the voir dire process. In re Access to Jury Questionnaires, 37 A.3d 879, 885–87 (D.C. 2012).
CompareB. Juror identities, questionnaires and other records
Under 18 U.S.C. § 3432, a court may empanel an anonymous jury when the court finds by a preponderance of the evidence that providing a list of veniremen and witnesses to the defendant may jeopardize the life or safety of any person. See United States v. Edelin, 128 F. Supp. 2d 23, 43 (D.D.C. 2001) (citing 18 U.S.C. § 3432 and allowing the empaneling of an anonymous jury because organized crime posed a risk to jurors where defendants were part of a large-scale criminal organization that distributed massive amounts of cocaine in Washington, D.C., and used violent acts to achieve its goals). In United States v. Edmond, the D.C. Circuit sets forth five factors that D.C. district courts should consider when deciding whether an anonymous jury should be empaneled. United States v. Edmond, 52 F.3d 1080 (D.C. Cir. 1995), cert. denied, 516 U.S. 998 (1995). Those factors are:
- the defendant's involvement in organized crime;
- the defendant's participation in a group with the capacity to harm jurors;
- the defendant's past attempts to interfere with the judicial process;
- the potential that, if convicted, the defendant will suffer a lengthy incarceration; and
- extensive publicity that could enhance the possibility that jurors' names would become public and expose them to intimidation and harassment.
United States v. Mohammed, 538 F. Supp. 2d 281, 282–83 (D.D.C. 2008) (citing Edmond, 52 F.3d at 1090). Additionally, after applying the factors but before empaneling an anonymous jury, the court should: (a) conclud[e] that there is strong reason to believe the jury needs protection, and (b) tak[e] reasonable precautions to minimize any prejudicial effects on the defendant and to ensure that his fundamental rights are protected. Edmond, 52 F.3d at 1090 (citing United States v. Paccione, 949 F.2d 1183, 1192 (2d Cir. 1991), cert. denied, 505 U.S. 1220 (1991)).
The Edmond factors apply when jurors face a threat of harm because of the proximity of the organized crime ring; however, they are not intended to apply to all circumstances where defendants are alleged participants in organized crime. In contrast to United States v. Edelin, in which an anonymous jury was appropriate where defendants were part of an organized crime ring accused of 14 murders and multiple counts of assault with intent to murder, including threats to kill two witnesses in a case proceeding in the Superior Court for the District of Columbia, 128 F. Supp. 2d at 28, 30, in United States v. Mohammed, an anonymous jury was not appropriate because all criminal acts identified by the government related to conduct in Afghanistan, so the jury was unlikely to need protection. United States v. Mohammed, 538 F. Supp. 2d 281, 283 (D.D.C. 2008). The government was unable to provide concrete, reliable, or verifiable evidence showing threats to jurors in Washington, D.C. Id.
The names of jurors in a criminal trial of a former U.S. Secretary of Agriculture were sealed for seven days following the return of the verdict, since temporary sealing accommodates competing interests of the press asserting its constitutional right of access to this information, and jurors, in their desire to remain confidential. United States v. Espy, 27 Media L. Rep. 1190 (D.D.C. 1998).
The D.C. Circuit found that the district court's exclusion of the public, but not the press, from criminal trial violated the defendant’s Sixth Amendment right to public trial. United States v. Edmond, 16 Media L. Rep. 2327 (D.C. Cir. 1989). The circuit court concluded that the trial court failed to provide notice and hearing before closing trial, and failed to issue findings demonstrating that closure was essential to preserve higher values and was narrowly tailored to serve those interests. Id. The court further noted that none of the three reasons cited by the court—juror's recognition of spectator, defendant's relative's recognition of juror, and defense attorney's learning that juror's relative was among spectators—showed any imminent threat to the jurors' well-being. Id.
A D.C. district court permitted the Washington Post's application for public access to certain voir dire questionnaires completed by prospective jurors in a criminal case. In re Wash. Post, No. 92–301 (RCL), 1992 WL 233354 (D.D.C. July 23, 1992). Another district court held that the public has a right of access to jury questionnaires completed for voir dire in a criminal trial of a former CIA official, although answers that contained “intensely personal” information could be redacted, regardless of whether prospective jurors responded affirmatively to a question that asked whether any information disclosed on the questionnaire was “confidential and personal.” United States v. George, No. 92-301, 1992 WL 233354, at *4 (D.D.C. July 23, 1992).
The D.C. Court of Appeals has also recognized that the media has a presumptive, First Amendment right of access to written jury questionnaires used as part of the voir dire process. In re Access to Jury Questionnaires, 37 A.3d 879, 885–87 (D.C. 2012).
CompareC. Grand jury proceedings and records
Proceedings ancillary to grand jury investigations
The D.C. Circuit has held that the public does not have a First Amendment right of access to judicial proceedings ancillary to grand jury investigations. In re Dow Jones & Co., Inc., 142 F.3d 496, 500 (D.C. Cir. 1998) (citing Fed. R. Crim. P. 6(e), preserving the right to grand jury secrecy, and finding that ancillary proceedings must be closed to extent necessary to prevent disclosure of matters occurring before grand jury). For example, in denying the media's request for full access to the entirety of hearings and transcripts related to President Clinton's motion to show cause related to a grand jury investigation, the D.C. Circuit suggested that were the press to request redacted transcripts, the district could would act on the motion consistent with the limits of Rule 6(e) and the applicable local rule. In re Dow Jones & Co., Inc., 142 F.3d 496, 500 (D.C. Cir. 1998).
Under Fed. R. Crim. P. 6(e)(6), the public has a limited right of access to documents filed in connection with matters before a grand jury, to the extent such documents do not disclose matters occurring before the grand jury or a court finds that continued secrecy is not necessary to prevent disclosure of matters occurring before the grand jury. In re Dow Jones & Co., Inc., 142 F.3d 496, 500 (D.C. Cir. 1998); In re Donovan, 13 Media L. Rep. 1533 (D.C. Cir. 1986) (public denied access to proceedings relating to district attorney's motion for disclosure of certain federal grand jury materials for possible use as evidence in state criminal trial of former federal official; state official's request for federal grand jury material was not “pre-trial criminal proceeding”).
In 2019, the D.C. Circuit granted the Reporters Committee’s motion to unseal, in part, records related to a contempt proceeding arising out of the Office of Special Counsel’s grand jury investigation into the Trump campaign’s ties to Russia. In re Grand Jury Subpoena, No. 18-3071, Doc. No. 1784227 (D.C. Cir. Apr. 23, 2019), https://www.rcfp.org/wp-content/uploads/2019/04/2019-04-23-DC-Cir-Grand-Jury-Subpoena-Order.pdf. The court stressed “where the Rules authorize us to do so, we may – and should – release any information so long as it does not reveal the ‘identities of witnesses or jurors, the substance of testimony’ as well as actual transcripts, ‘the strategy or direction of the investigation, the deliberations or questions of jurors, and the like.’” Id. (citations omitted).
The D.C. Circuit has rejected media requests to establish a public docket of grand jury ancillary proceedings in order to facilitate greater access to grand jury information. In re Sealed Case, 199 F.3d 522 (D.C. Cir. 2000) (controlling legal authority neither holds nor suggests that public docketing of such proceedings should be mandatory, and since limited right of access to such information exists only pursuant to court's Local Criminal Rule 6.1).
Unsealing permitted where grand jury matters no longer secret
The D.C. Circuit has applied the “common sense proposition that secrecy is no longer ‘necessary’ when the contents of grand jury matters have become public.” In re North, 16 F.3d 1234, 1245 (D.C. Cir. 1994) (“There must come a time . . . when information is sufficiently widely known that it has lost its character as Rule 6(e) material. The purpose in Rule 6(e) is to preserve secrecy. Information widely known is not secret.”).
Portions of a redacted opinion, along with portions of ex parte affidavits used by the court in ruling, were ordered unsealed, but release was limited to matters that had been revealed during trial or by grand jury witnesses. In re Grand Jury Subpoena of Judith Miller, 493 F.3d 152 (D.C. Cir. 2007). During the grand jury's investigation into the Monica Lewinsky matter, the D.C. Circuit similarly held that staffers at the Office of the Independent Counsel could not have violated Rule 6(e) when they told the New York Times they believed President Clinton should be indicted for perjury and obstruction of justice. In re Sealed Case, 192 F.3d 995, 1001-05 (D.C. Cir. 1999) (finding that the staffers “did not reveal any secret, for it was already common knowledge” both that President Clinton had testified and that the grand jury was investigating possible perjury and obstruction charges against him).
Courts’ inherent authority to release grand jury records
In a divided opinion in 2019, the D.C. Circuit held that federal courts lack inherent authority to disclose historic grand jury records. McKeever v. Barr, 920 F.3d 842 (D.C. Cir. 2019). The federal circuits are split on this issue. Compare id. with, e.g., Carlson v. United States, 837 F.3d 753 (7th Cir. 2016) (recognizing courts’ authority to release grand jury records).
Local D.D.C. Rules on grand jury secrecy
Local Criminal Rule 6.1 for the D.C. district court provides that all motions, applications, oppositions, other papers, and orders issued in relation to a grand jury subpoena “shall be filed under seal.” LCrR 6.1. However, papers, orders, and transcripts of hearings subject to Local Criminal Rule 6.1 may be made public by the Court on its own motion or on motion of any person upon a finding that continued secrecy is not necessary to prevent disclosure of matters occurring before the grand jury. LCrR 6.1.
In In re Grand Jury Subpoena No. 7409, Chief Judge Beryl Howell granted in part a motion by the Reporters Committee to unseal briefs, transcripts, and orders in connection with a contempt proceeding related to the Office of the Special Counsel’s grand jury investigation into the Trump campaign’s involvement with Russia. No. 18-41 (BAH), 2019 WL 2169265, at *5 (D.D.C. Apr. 1, 2019). Chief Judge Howell found that there was no First Amendment or common law right of access to the material but provided access to redacted court records under Local Criminal Rule 6.1. Id.
Contempt proceedings before a grand jury in which the alleged contemnor requests a public hearing are public. LCrR 6.1. All other hearings on matters affecting a grand jury proceeding shall be closed. LCrR 6.1.
CompareD. Interviewing jurors
In United States v. Espy, 31 F. Supp. 2d 1 (D.D.C. 1998), juror's names were sealed for seven days after their return of verdict, after which the names were released, and the press was free to contact them.
CompareVIII. Proceedings involving minors
CompareA. Delinquency
The D.C. Circuit upheld the Federal Youth Corrections Act, providing that minors’ conviction records be “automatically set aside” in certain circumstances and requiring that such records be physically removed from central criminal files, placed in a separate storage facility, and not disseminated to anyone, public or private. Doe v. Webster, 606 F.2d 1226 (D.C. Cir. 1979).
CompareB. Dependency
CompareC. Other proceedings involving minors
CompareD. Prohibitions on photographing or identifying juveniles
CompareE. Minor testimony in non-juvenile courts
CompareIX. Special proceedings
CompareA. Tribal Courts in the jurisdiction
CompareB. Probate
CompareC. Competency and commitment proceedings
CompareD. Attorney and judicial discipline
The D.C. Circuit Court sua sponte unsealed attorney disbarment proceedings “[b]ecause the matter ha[d] been fully aired in public by the District of Columbia Court of Appeals.” In re Pels, No. 96-7153, 1996 WL 788937, at *1 (D.C. Cir. Dec. 26, 1996).
CompareE. Immigration proceedings
CompareF. Other proceedings
CompareX. Restrictions on participants in litigation
CompareA. Media standing to challenge third-party gag orders
Though not outright deciding the issue of standing to challenge a third-party gag order, a D.C. district court permitted the Washington Post to intervene and move to vacate a gag-order obtained by all parties during discovery proceedings. In re Korean Airlines Disaster of September 1, 1983, 597 F. Supp. 621 (D.D.C. 1984) (denying motion to vacate but modifying order to more clearly express the court's intent that only discovery information may not be released).
In criminal cases, LCrR 57.6 states that "any news organization or other interested person, other than a party or a subpoenaed witness, who seeks relief relating to any aspect of the proceedings in a criminal case, or relief relating to a criminal investigative or grand jury matter, shall file an application for such relief with the Court. The application shall include a statement of the applicant's interest in the matter as to which relief is sought, a statement of facts, and a specific prayer for relief. An application that pertains to a criminal case or matter to which a judge has been assigned shall be served on the parties and shall be referred by the Clerk to the assigned judge for determination. An application that pertains to a criminal investigative or grand jury matters to which no judge has been assigned shall be referred by the Clerk to the Chief Judge for determination.
CompareB. Gag orders on the press
CompareC. Gag orders on participants
District Court LCrR 57.7(b)(4) provides that “[d]uring a jury trial of any criminal matter, including the period of selection of the jury, no lawyer or law firm associated with the prosecution or defense shall give or authorize any extrajudicial statement or interview, relating to the trial or the parties or issues in the trial which a reasonable person would expect to be disseminated by means of public communication if there is a reasonable likelihood that such dissemination will interfere with a fair trial, except that the lawyer or law firm may quote from or refer without comment to public records of the court in the case.” For example, the 9/11 detainees and their attorneys were not prevented from contacting members of the press. Ctr. for Nat’l Sec. Studies v. U.S. Dep’t of Justice, 331 F.3d 918 (D.C. Cir. 2003).
CompareD. Interviewing judges
CompareXI. Other issues
CompareA. Interests often cited in opposing a presumption of access
The public right of access is not absolute. United States v. Hubbard, 650 F.2d 293, 315 (D.C. Cir. 1980) (listing “time-honored exceptions”) (quoting Nixon, 435 U.S. at 598); Tavoulareas v. Wash. Post, 724 F.2d 1010 (D.C. Cir. 1984) (recognizing corporation's constitutionally protected privacy interest in nondisclosure of its confidential commercial information); Schaffer v. Kissinger, 505 F.2d 389 (D.C. Cir. 1974) (national security secrets); United States v. Poindexter, 732 F. Supp. 165 (D.D.C. 1990) (national security); In re Sealed Documents, 15 Media L. Rep. 1983 (D.D.C. 1988) (compelling interest in successful completion of ongoing investigation into fraud in defense procurement process); Bigelow v. Dist. of Columbia, 122 F.R.D. 111 (D.D.C. 1988) (protecting confidential informant). But see In re NBC, 653 F.2d 609 (D.C. Cir. 1981) (granting media permission to make copies of video and audio tapes entered into evidence at trial, finding no risk of disclosure in prejudicing a hypothetical second trial); In re N.Y. Times Co., 585 F. Supp. 2d 83, 87 (D.D.C. 2008) (ordering disclosure of materials in part because they revealed information the public already knew, which was neither highly intimate nor personal, and because there was no possibility of prejudice because the investigation was complete).
Ongoing criminal investigations
The sealing of a plea agreement is not necessary to protect ongoing criminal investigations where the evidence showed that disclosure would only confirm what was already public knowledge. Wash. Post v. Robinson, 935 F.2d 282, 288 n. 7 (D.C. Cir. 1991); Bigelow v. District of Columbia, 122 F.R.D. 111 (D.D.C. 1988) (protecting portions of record that might identify confidential informant).
Privacy
The D.C. Circuit has recognized that a corporation has a constitutionally protected privacy interest in nondisclosure of confidential commercial information submitted during pre-trial discovery but never used at trial. Tavoulareas v. Wash. Post, 724 F.2d 1010 (D.C. Cir. 1984), rev’d on other grounds, 737 F.2d 1170.
Courts have held that the need for access to discovery material must be balanced against privacy interests, recognizing that such discovery material is often not only “irrelevant but if publicly released could be damaging to [the] reputation and privacy” of opposing and third parties. Peskoff v. Faber, 230 F.R.D. 25, 33 (D.D.C. 2005).
Courts have also sometimes sealed court records due to privacy concerns. See Willingham v. Ashcroft, 355 F. Supp. 2d 390 (D.D.C. 2005) (sealing certain pleadings and exhibits that disclosed allegations of misconduct against persons who were not parties to civil lawsuit, but against whom plaintiff had compared herself); see also In re Reporters Comm. for Freedom of the Press, 773 F.2d 1325 (D.C. Cir. 1985) (finding that "the common-law right of inspection has bowed before the power of a court to insure that its records are not 'used to gratify private spite or promote public scandal' through the publication of 'the painful and sometimes disgusting details of a divorce case'”). But see In re N.Y. Times Co., 585 F. Supp. 2d 83, 87 n. 3 (D.D.C. 2008) (applying First Amendment right of access to certain sealed search warrant materials relating to the government’s investigation into the anthrax mailings of 2001, finding that "government's assertion that individual wants ‘to get on with his life’ does not serve as legally cognizable privacy interest").
National Security
The D.C. Circuit has held that civil litigants “enjoy no right of access to classified information.” Dhiab v. Trump, 852 F.3d 1087, 1092–93 (D.C. Cir. 2017) (“[T]here is no tradition of publicizing secret national security information involved in civil cases, or for that matter, in criminal cases.”). In Dhiab, the court denied intervening media organizations’ motion to unseal classified video recordings of a Guantanamo detainee that were used in the detainee’s civil habeas corpus proceeding.
A D.C. district court found no right of access to an entire deposition given in a criminal prosecution by former President Ronald Reagan in view of the strong likelihood that information damaging to national security would be revealed. United States v. Poindexter, 732 F. Supp. 165 (D.D.C. 1990). However, the court did permit a viewing of the videotape and transcript of the deposition edited to redact national security information. Id.
In Center for National Security Studies v. U.S. Department of Justice, 331 F.3d 918 (D.C. Cir. 2003), the D.C. Circuit found no First Amendment right, in a FOIA action, to receive the identities of INS detainees and material witnesses who were detained in the wake of the September 11 attacks. See also Flynt v. Rumsfeld, 355 F.3d 697 (D.C. Cir. 2004) (no presumption of right of access to battlefield in wartime); JB Pictures Inc. v. Dep’t of Defense, 86 F.3d 236, 240 (D.C. Cir. 1996) (applying Richmond Newspapers analysis and finding no right of access to military bases to cover the return of deceased military members).
CompareB. Cameras and other technology in the courtroom
While the federal courts in D.C. are no stranger to high-profile judicial events, they have historically limited the use of cameras and other technology in the courtroom. In the 2007 proceedings against former White House adviser Scooter Libby, who stood trial on charges of obstruction of justice and perjury arising out of a criminal investigation into possible unauthorized disclosure of classified information regarding the identity of a CIA operative, Judge Reggie Walton issued a decorum order barring cameras, audio and video recording equipment, and providing that the court would not tolerate “any attempts to have this case tried in the media." United States v. Libby, 35 Media L. Rep. 1235 (D.D.C. 2007). While the Court offered live closed-circuit video transmission to remote locations within the courthouse, it barred retransmission of the video. See id. However, Judge Walton instructed the credentialed media viewing the closed-circuit broadcast to use laptops for "note taking purposes, live written reporting of the proceedings, or blogging only." Id.
District Court Local Civil Rule 83.1 and Local Criminal Rule 53.1.1 govern photography, tape recording, and broadcasting in the courthouse. The rule proscribes the taking of photographs, operation of tape recorders, and radio or television broadcasting from inside the courthouse during the progress of or in connection with judicial proceedings, including proceedings before a United States Magistrate Judge, whether or not court is actually in session. However, a judge may permit the broadcasting, televising, recording, or photographing of investiture, ceremonial, or naturalization proceedings and the videotaping or audio taping of educational programs with prior approval of the Chief Judge. The use of such equipment is permissible within a judge's chambers at the discretion of the judge. Finally, the contents of official tapes that are made as part of the record in a case will be treated in the same manner as official stenographic notes.
The D.C. Circuit provides audio recordings of live and archived oral arguments at https://www.cadc.uscourts.gov/internet/home.nsf/Content/Oral+Arguments. Outside photography, audio recording, and video recording are prohibited; only sketch artists are permitted pursuant to the policy at https://www.cadc.uscourts.gov/internet/home.nsf/Content/VL%20-%20Rules%20Policies%20Procedures%20-%20Sketch%20Artist%20Policy.
CompareC. Tips for covering courts in the jurisdiction
The U.S. Court of Appeals for the D.C. Circuit (“D.C. Circuit”) hears appeals from the U.S. District Court for the District of Columbia. The D.C. Circuit is not to be confused with the D.C. Court of Appeals, which is the highest court of the District of Columbia.
U.S. District Court for the District of Columbia
http://www.dcd.uscourts.gov
E. Barrett Prettyman
United States Courthouse
333 Constitution Avenue, NW
Washington, DC 20001
U.S. Court of Appeals for the District of Columbia
http://www.cadc.uscourts.gov
333 Constitution Avenue, NW
Washington, DC 20001
Court reporters in the district court make verbatim records of most court proceedings, transcripts of which are provided upon request. The fees for transcription vary based upon format and delivery time requested. Questions relating to transcripts can be directed to the Office of the Court Reporters at 202-354-3044.
All arguments before the D.C. Circuit are tape-recorded for future reference of the Court. Audio recordings of oral arguments are available on the Court’s website free of charge, usually by 2:00 p.m. on the same day of the oral argument. Any person may request that a transcript of the oral argument be made. See D.C. Circuit Handbook of Practice and Internal Procedures. Copies of oral argument tapes may be purchased upon written request after the case has been completely closed, meaning after all appeals, remands, or additional proceedings. However, tapes are only retained by the Court for two years after the case has been closed.
In certain cases, the district court will make the First Floor Media Room available as a remote location for video and audio transmission of proceedings from specified courtrooms. See, e.g., United States v. Libby, 35 Media L. Rep. 1235 (D.D.C. 2007) (ordering closed-circuit viewing of Scooter Libby obstruction of justice and perjury trial). However, video and audio recording or transmission of court proceedings are strictly prohibited from the First Floor Media Center. Any violation of this prohibition may result in the banning of all laptops from the remote facility or the closing of the facility and the imposition of contempt sanctions against the violator individually and, if attending in the capacity of an employee or agent, against the employer or principal.
The district court allows members of the media to apply for free electronic notification of court filings made on PACER; however, they must still pay the per-page access charge to view the documents. For more information on how to access court records, see the Media User Guide: Access to Electronic Court Records on the court’s website.
Cell phones, computers, tablets, smart watches, and all other electronic and telecommunications equipment are permitted in the courthouse but must be turned off or put on airplane mode while inside any courtroom. Visitors may use electronic devices in public areas of the courthouse; however, at no point shall anyone be permitted to take photographs or video anywhere in the courthouse, including in public areas.
In addition, all liquids, aerosols, and gels in excess of 3.4 ounces (100 ml) are prohibited from being brought into the Courthouse complex. Visitors (including attorneys and credentialed media) are limited to up to three separate containers (3.4 ounces each) per person.
D.C. District Court website: http://www.dcd.uscourts.gov/
D.C. Circuit website: http://www.cadc.uscourts.gov
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