Minnesota

Author

Leita Walker
(walkerl@ballardspahr.com; (612) 371-6222)
Ballard Spahr LLP
2000 IDS Center
80 South 8th St.
Minneapolis, MN 55402-2119

Shannon Jankowski
(Shannon.Jankowski@FaegreBD.com; (612) 766-7646)
John P. Borger
(John.Borger@FaegreBD.com; (612) 766-7501 (retired))
Faegre Baker Daniels LLP
2200 Wells Fargo Center
Minneapolis, MN 55402
(612) 766-7000
www.faegrebd.com

Last updated Feb. 28, 2018

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Open Courts Compendium

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I. Introduction: Access rights in the jurisdiction

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A. The roots of access rights

The Minnesota Supreme Court has recognized a First Amendment right of press and public access to criminal court proceedings. Minneapolis Star & Tribune Co. v. Kammeyer, 341 N.W.2d 550, 554–55 (Minn. 1983) (acknowledging that based on Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555 (1980), the press and the public have access to criminal trials); see also Austin Daily Herald v. Mork, 507 N.W.2d 854, 856 (Minn. Ct. App. 1993) (“There is a constitutional presumption of access to criminal trials.”). This First Amendment right of access also extends to criminal pretrial proceedings. Kammeyer, 341 N.W.2d at 556.

Although there are no Minnesota appellate decisions addressing the constitutional right of access to civil court proceedings, in Minneapolis Star & Tribune Co. v. Schumacher, 392 N.W.2d 197, 202–03 (Minn. 1986), the Minnesota Supreme Court recognized a First Amendment and common law presumption in favor of granting the public the right to inspect civil court files and records. This common law presumption of access has been characterized as “strong.” Id. at 203. Minnesota state district courts have also applied a common law right of access to civil proceedings and records. See, e.g., Williams v. Heins Mills & Olson PLC, 36 Media L. Rep. 1924, 1926 (Minn. Dist. Ct. Hennepin County 2008); Friederichs v. Kinney & Lange, 22 Media L. Rep. 2530, 2531–32 (Minn. Dist. Ct. Hennepin County 1994). At the federal level, the District of Minnesota is part of the Eighth Circuit, which recognizes a common law right of access to civil files and proceedings. Webster Groves Sch. Dist. v. Pulitzer Publ’g Co., 898 F.2d 1371, 1376 (8th Cir. 1990); In re Guidant Corp. Implantable Defribillators Products Liability Litig., 245 F.R.D. 632, 636 (D. Minn. 2007) (citing Webster Groves Sch. Dist., 898 F.2d at 1376).

Public access to various court proceedings in Minnesota is often governed by the state procedural rules and statutes. See, e.g., Minn. Stat. § 260B.163, subd. 1(c) (stating that the court must exclude the public from juvenile delinquency hearings except in certain limited circumstances). In addition, the Minnesota Supreme Court has adopted The Rules of Public Access to Records of the Judicial Branch, which provide that as a general policy, the “[r]ecords of all courts and court administrators … are presumed to be open to any member of the public for inspection or copying at all times during the regular office hours.” Minn. R. Pub. Access Rec’ds. Jud. Br. 2. “Records” are defined as “any recorded information that is collected, created, received, maintained or disseminated by a court or court administrator.” Id. 3, subd. 5.

Under Rule 4, the public does not have access to certain records including, but not limited to, domestic abuse records and other court records that have not been admitted into evidence but are simply intended to assist the court in (a) determining an individual’s need for counseling, (b) assigning an appropriate sentence, or (c) creating a psychological evaluation of an individual, etc. Id. 4, subd. 1. Rules 7 and 8 dictate the procedure for requesting access, which is straightforward and does not require the payment of a fee unless otherwise established by statute; however, when copies are requested, the custodian may charge a copy fee. Id. 8; subd. 6.

Minnesota Rules of Civil Procedure 43.01 (“In all trials the testimony of witnesses shall be taken orally in open court”) and 77.02 (“All trials upon the merits shall be conducted in open court and so far as convenient in a regular courtroom”) provide for public access to civil court proceedings. Minnesota Rules of Criminal Procedure 25.01 and 26.03 state the general right of public access to pretrial and trial proceedings and provide specific procedures for limiting that access.

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B. Overcoming a presumption of openness

In the civil context, to overcome the constitutional or common law presumption of access to judicial records and files, a party “must show strong countervailing reasons why access should be restricted” and demonstrate “a sufficiently strong interest in support of denying access.” Minneapolis Star & Tribune Co. v. Schumacher, 392 N.W.2d 197, 202, 205–06. Courts apply a balancing test to determine whether the restriction on access is justified and weigh the interests in favor of access, along with the common law presumption of access, against interests supporting the denial of access. Id. at 202–03.

To overcome the constitutional presumption of openness in criminal proceedings: (a) the party seeking closure must demonstrate that there is an “overriding interest” that will be prejudiced if the proceeding remains open to the public; (b) the closure must not be broader than necessary; and (c) the court must consider reasonable alternatives and make findings adequate to support the closure. Christianson v. State, No. A05-1853, 2006 Minn. App. Unpub. LEXIS 1416, at *6–7 (Minn. Ct. App. June 30, 2006) (citing Waller v. Georgia, 467 U.S. 39, 48 (1984)); see also State v. Delacruz, No. A03-129, 2004 Minn. App. LEXIS 104, at *4–5 (Minn. Ct. App. Feb. 3, 2004) (citing Waller, 467 U.S. at 48).

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C. Procedural prerequisites to closure

In Minneapolis Star & Tribune Co. v. Kammeyer, 341 N.W.2d 550, 556 (Minn. 1983), the Minnesota Supreme Court interpreted the requirements of Minn. R. Crim. P. 25.01 for closing criminal pretrial proceedings: (1) the court must find a “substantial likelihood” that if the pretrial proceedings are not closed, prejudicial evidence will be revealed, which would interfere with the defendant’s right to a fair trial; (2) the court must state the reasons for closure; and, (3) after the trial is over, the court must make the entire record, including the transcript of the pretrial proceedings, available for public review. When setting forth the reasons for closing criminal pretrial proceedings, the judge must rely on the findings of fact, rather than the judge’s own personal opinions. Id. at 557. The judge must review any suggested alternatives to closure and must state why those alternatives are inappropriate. Id. In addition, the court held that the First Amendment requires the court to hold a public hearing prior to closure so that the members of the public have an opportunity to voice their objections and to suggest alternatives. Id. at 558. The public must be given a notice of the pre-closure hearing through a docket entry at least twenty-four hours before the court is scheduled to hear a motion to close proceedings. Id.

Minnesota courts have also discussed the requirements for closing criminal trials when the trial is in progress and minor witnesses are called to testify. See generally State v. Delacruz, No. A03-129, 2004 Minn. App. LEXIS 104 (Minn. Ct. App. Feb. 3, 2004). Before ordering closure of a criminal trial, the judge must consider reasonable alternatives and must make findings of fact adequate to support the closure. Id. at *2. The judge must give the parties and the members of the public an opportunity to object to closure. Id. (citing Minn. Stat. § 631.045 (2002)). Finally, the judge must be very specific in articulating the reasons that justify closure. Id.

Minn. R. Crim. P. 26.03 governs the specific situation where arguments occur outside the presence of a nonsequestered jury. That rule states that if the jury is not sequestered, the judge may order exclusion of the public from any portion of the trial that takes place outside the presence of the jury on the ground that dissemination of evidence or argument adduced at the hearing would create a substantial likelihood of interference with an overriding interest, such as the right to a fair trial. Before excluding the public, the court must consider alternatives and narrowly tailor the closure. The court must also follow certain procedural steps outlined in the rule. The rule does not speak to exclusion of the public where the jury is sequestered.

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

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A. Media standing to challenge closure

In Minneapolis Star & Tribune Co. v. Schumacher, 392 N.W.2d 197, 207 (Minn. 1986), the Minnesota Supreme Court recognized that a member of the press who is not a party to the original action may move to intervene as of right under Minn. R. Civ. P. 24.01 in order to challenge a trial court’s order sealing a civil file. In Minneapolis Star & Tribune Co. v. Kammeyer, 341 N.W.2d 550, 558 (Minn. 1983), the court held that under the First Amendment, before a judge closes criminal proceedings, a public hearing must be held to allow the members of the press and the public to object to closure and to suggest alternatives. Thus, the Minnesota Supreme Court has recognized that the members of the press have standing to challenge the closure of court proceedings and may intervene as of right to seek the disclosure of sealed court files and records.

The Eightth Circuit has also recognized the media’s right to challenge closure of courtrooms, stating in In re Iowa Freedom of Information Council, 724 F.2d 658, 661 (8th Cir. 1983), that when a member of the news media objects to limits on his or her access to judicial proceedings, “the court must give him or her a reasonable opportunity to state the objection.” A motion is the preferred procedural mechanism for objecting to limitations upon access. In re Search Warrant for Secretarial Area Outside Office of Gunn, 855 F.2d 569, 570 (8th Cir. 1988).

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B. Procedure for requesting access in criminal cases

In Minnesota, before closing criminal proceedings, a judge must hold a public hearing, during which the members of the press and the public have an opportunity to object and to suggest alternatives to closure. Minneapolis Star & Tribune Co. v. Kammeyer, 341 N.W.2d 550, 558 (Minn. 1983). After the hearing, if the judge orders the proceedings closed, the public or the press may seek a writ of prohibition to challenge the court’s order. Austin Daily Herald v. Mork, 507 N.W.2d 854, 856 (Minn. Ct. App. 1993) (citing Minn. R. Crim. P. 25.03, subd. 5).

The procedures for restricting access to public records relating to criminal proceedings are explained in Minn. R. Crim. P. 25.03. This rule contains a notice and hearing requirement and states that a court may issue a restrictive order only if it concludes that: (1) access to public records will present a substantial likelihood of interfering with the fair and impartial administration of justice; and (2) all reasonable alternatives to a restrictive order are inadequate. The rule also requires the court to make written findings of facts and statement of the reasons supporting its conclusion that a restrictive order is needed.

At the federal level, the media has a right to intervene to challenge restrictions on access to criminal proceedings or records. The Eighth Circuit stated in In re Iowa Freedom of Information Council, 724 F.2d 658, 661 (8th Cir. 1983), that when a member of the news media objects to limits on his or her access to judicial proceedings, “the court must give him or her a reasonable opportunity to state the objection.”  A motion is the preferred procedural mechanism for objecting to limitations upon access. In re Search Warrant for Secretarial Area Outside Office of Gunn, 855 F.2d 569, 570 (8th Cir. 1988).

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C. Procedure for requesting access in civil matters

In civil matters, a motion to intervene is an appropriate mechanism for the members of the public and the press to request access. See Minneapolis Star & Tribune Co. v. Schumacher, 392 N.W.2d 197, 207 (Minn. 1986). The Minnesota Supreme Court has found that to challenge the court’s limitation on access to civil cases, a member of the public or the press may move to intervene as of right under Rule 24.01 of the Minnesota Rules of Civil Procedure. Id. Based on Rule 24, the court has formulated a four-part test that a non-party must meet before it can be allowed to intervene in a civil action. Under this test, a party must: (1) make a timely application for intervention; (2) show an interest relating to the property or transaction which is the subject of the action; (3) prove circumstances that show that the disposition of the action will, as a practical matter, impair or impede the party’s ability to protect that interest; and (4) show that the party seeking intervention is not adequately represented by any of the existing parties. Minn. R. Civ. P. 24.01; Schumacher, 392 N.W.2d at 207.

The United States District Court for the District of Minnesota has also allowed members of the press to file for permissive intervention under Fed. R. Civ. P. 24(b) for the purpose of challenging the court’s decision to seal various documents. See In re Guidant Corp. Implantable Defibrillators Prods. Liab. Litig., 245 F.R.D. 632, 635 (D. Minn. Oct. 3, 2007). In deciding to grant permissive intervention, the court must consider three factors: (1) whether the motion was timely; (2) whether the moving party’s claim shares a question of law or fact in common with the main action; and (3) whether intervention will unduly delay or prejudice adjudication of the original parties’ rights. Id. (citing In re Baycol Prods. Litig., 214 F.R.D. 542, 543–44 (D. Minn. 2003)). The district court may exercise its discretion to grant or deny the motion for permissive intervention and its decision will be reviewed under an abuse of discretion standard. Id. (citing South Dakota v. U.S. Dept. of Interior, 317 F.3d 783, 787 (8th Cir. 2003)).

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D. Obtaining review of initial court decisions

In criminal cases, if a trial judge closes criminal proceedings following a public hearing, members of the press may seek a writ of prohibition from the court of appeals. Austin Daily Herald v. Mork, 507 N.W.2d 854, 856 (Minn. Ct. App. 1993) (citing Minn. R. Crim. P. 25.03, subd. 5).

Similarly, in civil cases, if the trial court denies a party’s motion to intervene, the intervenor may seek a writ of prohibition from the court of appeals. Minneapolis Star & Tribune Co. v. Schumacher, 392 N.W.2d 197, 208 (Minn. 1986). The Minnesota Supreme Court has stated that time is of the essence in cases involving the issues of court access. Id. Thus, an expedited review of trial court decisions is appropriate and a writ of prohibition is often a proper remedy as a regular appeal under the rules of appellate procedure would take significantly longer. Id.

According to the Minnesota Supreme Court, for a writ of prohibition to issue, three requirements must be met: “(1) an inferior court or tribunal must be about to exercise judicial or quasi-judicial power; (2) the exercise of such power must be unauthorized by law; and (3) the exercise of such power must result in injury for which there is no adequate remedy.” Id. (citing Richardson v. Sch. Bd. of Indep. Sch. Dist. No. 271, 210 N.W.2d 911 (Minn. 1973)). The court of appeals may exercise its discretion in issuing a writ of prohibition. Id. Generally, courts issue a writ of prohibition “only in extreme cases where the law affords no other adequate remedy by motion, trial, appeal, certiorari, or otherwise.” Id. (citing Wasmund v. Nunamaker, 151 N.W.2d 577 (1967)) (emphasis added). As noted earlier, a regular appeal is not an “adequate remedy” and, therefore, even if a party has a right of appeal under the rules of appellate procedure, a writ of prohibition may still be an appropriate remedy. See id.

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III. Access to criminal proceedings

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A. In general

The Minnesota Supreme Court has recognized a First Amendment right of press and public access to criminal court proceedings. Minneapolis Star & Tribune Co. v. Kammeyer, 341 N.W.2d 550, 554–55 (Minn. 1983) (acknowledging that based on Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555 (1980), the press and the public have access to criminal trials); see also Austin Daily Herald v. Mork, 507 N.W.2d 854, 856 (Minn. Ct. App. 1993) (“There is a constitutional presumption of access to criminal trials.”). This First Amendment right of access also extends to criminal pretrial proceedings. Kammeyer, 341 N.W.2d at 556. In addition, Minnesota Rules of Criminal Procedure 25.01 and 26.03 state a general right of public access to pretrial and trial proceedings and provide specific procedures for limiting that access.

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B. Pretrial proceedings

The Minnesota Supreme Court has held that the public has a First Amendment right of access to criminal pretrial proceedings. Minneapolis Star & Tribune Co. v. Kammeyer, 341 N.W.2d 550, 556 (Minn. 1983). According to the court, “[p]retrial proceedings play a major role in the modern criminal trial, and public access tends to strengthen this important component of the criminal justice system.” Id. Further, under the Minnesota Rules of Criminal Procedure, pretrial hearings are open to the public. Minn. R. Crim. P. 25.01, subd. 1. The court may, however, close the hearing if it finds that there is a “substantial likelihood” that an open hearing will interfere with “an overriding interest.” Id; Kammeyer, 341 N.W.2d at 556.

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C. Criminal trials

The Minnesota Supreme Court has acknowledged that criminal trials are open to the public. See, e.g., State v. Fageroos, 531 N.W.2d 199, 201 (Minn. 1995). Generally, a party seeking the closure of a criminal trial must advance an “overriding interest” that is likely to be prejudiced if the trial remains open. Id. at 201–02 (citing Waller v. Georgia, 467 U.S. 39, 48 (1984)). The Minnesota Supreme Court has held that safeguarding the physical and psychological well-being of a minor child is an “overriding interest” that can justify the closure of a criminal trial. Id. at 202 (citing Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 607 (1982)). At the same time, the court has noted that “[a]lthough protection of minor victims of sexual offenses constitutes a compelling interest, it does not justify closure of the courtroom each and every time a minor testifies.” Id. Instead, trial courts should evaluate the circumstances on a case-by-case basis and should consider several factors, including the minor’s age, psychological maturity, the nature of the crime, etc. Id. (citing Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 607–08 (1982)).

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D. Post-trial proceedings

Although Minnesota courts have not directly addressed whether the public and the press have a right to attend all post-trial proceedings in criminal cases, in Mankato Free Press Co. v. Dempsey, 581 N.W.2d 311, 312 (Minn. 1998), the Minnesota Supreme Court held that the press should be granted access to post-trial Schwartz hearings. In Minnesota courts, a Schwartz hearing is used when the parties dispute jury impartiality; during a Schwartz hearing, the jurors are examined on the record in the presence of counsel of all parties. Schwartz v. Minneapolis Suburban Bus Co., 104 N.W.2d 301, 303 (Minn. 1960).

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E. Appellate proceedings

Minnesota courts have not directly addressed whether the public has a right of access to criminal appellate proceedings. However, given its holding in Minneapolis Star & Tribune Co. v. Kammeyer, 341 N.W.2d 550, 556 (Minn. 1983), if this issue were to come before the Minnesota Supreme Court, it may likely find that the public has a right of access to criminal appellate proceedings, as appellate proceedings—like pretrial proceedings—play an important role in modern criminal trials. See “Access to criminal proceedings/Pretrial proceedings” above.

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IV. Access to criminal court records

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A. In general

The Minnesota Rules of Public Access to Records of the Judicial Branch provide that as a general policy, the “[r]ecords of all courts and court administrators … are presumed to be open to any member of the public for inspection or copying at all times during the regular office hours.” Minn. R. Pub. Access Rec’ds. Jud. Br. 2. “Records” are defined as “any recorded information that is collected, created, received, maintained or disseminated by a court or court administrator.” Id. 3, subd. 5.

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B. Arrest records

Under Minn. Stat. § 13.82 subd. 2, the information typically contained in arrest reports is public—e.g., name, age, sex, and last-known address of the arrested adult; time, date and place of the arrest; resistance encountered; the legal basis for the action; etc.

Under § 13.82 subd. 19, data in arrest warrant indices are confidential only until the defendant has been taken into custody, served with a warrant, or appears before the court. Data in arrest warrant indices may be disclosed at any time if the law enforcement agency believes disclosure would serve the public purpose.

Under § 13.82 subd. 26, booking photographs are public, although a law enforcement agency may temporarily withhold access if it determines that access would adversely affect an active investigation.

The Minnesota Supreme Court considered the right of access to arrest data in In re Quinn, 517 N.W.2d 895 (Minn. 1994). That case arose after a nineteen-year-old woman complained that she had been raped by a professional hockey player in a Minnesota hotel room. The police arrested the hockey player, searched the hotel room, and took statements from witnesses, including the hockey player’s teammates. Although the police chief believed a rape had occurred, the county attorney decided not to prosecute. The hockey player and his teammates subsequently obtained a temporary restraining order barring the city from releasing any of the information in the police files to the public, prompting local media and a number of other parties, including the alleged victim, to intervene. After a hearing, the district court ordered that the hockey player’s arrest record be expunged and the investigative file sealed. On appeal, the supreme court reversed, finding that release of the data would not jeopardize an ongoing investigation.

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C. Dockets

Minnesota courts have not addressed this issue. However, The Rules of Public Access to Records of the Judicial Branch state that the “[r]ecords of all courts and court administrators … are presumed to be open to any member of the public for inspection or copying at all times during the regular office hours.” Minn. R. Pub. Access Rec’ds. Jud. Br. 2. “Records” are defined as “any recorded information that is collected, created, received, maintained or disseminated by a court or court administrator.” Id. 3, subd. 5.

In federal cases, the Eighth Circuit has held that “case dockets maintained by the clerk of the district court are public records.” In re Search Warrant for Secretarial Area Outside Office of Gunn, 855 F.2d 569, 575 (8th Cir. 1988).

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D. Warrants, wiretaps and related materials

In Minnesota state courts, investigative data collected by law enforcement officials for purposes of preparing a case against an individual who committed a crime is considered confidential while the investigation is still on-going. In re Expulsion of E.J.W., 632 N.W.2d 775, 779 (Minn. Ct. App. 2001) (citing Minn. Stat. § 13.82, subd. 7). After the investigation is completed, however, the data is no longer confidential. Id.; see also “Access to criminal court records/Arrest records” above.

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E. Discovery materials

It does not appear that Minnesota has addressed this issue in the criminal context. In the civil context, however, the Minnesota Supreme Court has declined to endorse any “presumption of privacy” for pretrial discovery materials, leaving any protection to the discretion of the district judge under the “good cause shown” standards of Minn. R. Civ. P. 26.03. In re GlaxoSmithKline, 732 N.W.2d 257, 272 n.11 (Minn. 2007). The Minnesota Supreme Court, in an earlier decision in the GlaxoSmithKline litigation, stated “that documents produced as discovery are not presumed to be public and that district courts have broad discretion to issue protective orders,” but that “district courts presiding over civil actions are directed to weigh ‘policies in favor of openness against the interests of the litigant in sealing the record.’” In re GlaxoSmithKline, 699 N.W.2d 749, 755 (Minn. 2005). These decisions supersede the narrower view of public rights of access to pretrial discovery materials not yet filed with the court, as expressed by the Minnesota Court of Appeals in Star Tribune v. Minnesota Twins Partnership, 659 N.W.2d 287, 295–97 (Minn. Ct. App. 2003) (holding that the public has a common law right to inspect and copy civil court records, but that “private documents generated during discovery that are not filed with the court are not considered ‘judicial records’”). Of course, absent a protective order issued for good cause shown, “nothing precludes a party from voluntarily disclosing discovery documents.” State ex rel. Humphrey v. Philip Morris Inc., 606 N.W.2d 676, 686 (Minn. Ct. App. 2000).

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F. Pretrial motions and records

Minnesota Rules of Criminal Procedure 25.01 and 26.03 state a general right of public access to pretrial and trial proceedings. In addition, the Minnesota Court of Appeals has recognized that the public “generally is entitled to access judicial records,” as governed by the Rules of Public Access to Records of the Judicial Branch. State v. C.P.H., 707 N.W.2d 699, 704–05 (Minn. Ct. App. 2006). As a general policy, the “[r]ecords of all courts and court administrators … are presumed to be open to any member of the public for inspection or copying at all times during the regular office hours.” Minn. R. Pub. Access Rec’ds. Jud. Br. 2. “Records” are defined as “any recorded information that is collected, created, received, maintained or disseminated by a court or court administrator.” Id. 3, subd. 5. Rules 7 and 8 dictate the procedure for requesting access, which is straightforward and does not require the payment of a fee unless otherwise established by statute; however, when copies are requested, the custodian may charge a copy fee. Id. 8; subd. 6.

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G. Trial records

Minnesota Rules of Criminal Procedure 25.01 and 26.03 state a general right of public access to pretrial and trial proceedings. In addition, the Minnesota Court of Appeals has recognized that the public “generally is entitled to access judicial records,” as governed by the Rules of Public Access to Records of the Judicial Branch. State v. C.P.H., 707 N.W.2d 699, 704–05 (Minn. Ct. App. 2006). As a general policy, the “[r]ecords of all courts and court administrators … are presumed to be open to any member of the public for inspection or copying at all times during the regular office hours.” Minn. R. Pub. Access Rec’ds. Jud. Br. 2. “Records” are defined as “any recorded information that is collected, created, received, maintained or disseminated by a court or court administrator.” Id. 3, subd. 5.

Under Rule 4, the public does not have access to certain records including, but not limited to, domestic abuse records and other court records that have not been admitted into evidence but are simply intended to assist the court in (a) determining an individual’s need for counseling, (b) assigning an appropriate sentence, or (c) creating a psychological evaluation of an individual, etc. Id. 4, subd. 1. Rules 7 and 8 dictate the procedure for requesting access, which is straightforward and does not require the payment of a fee unless otherwise established by statute; however, when copies are requested, the custodian may charge a copy fee. Id. 8; subd. 6.

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H. Post-trial records

Though Minnesota courts have not specifically addressed whether the public has a constitutional right of access to post-trial records, the Minnesota Supreme Court has adopted the Rules of Public Access to Records of the Judicial Branch, which provide that as a general policy, the “[r]ecords of all courts and court administrators … are presumed to be open to any member of the public for inspection or copying at all times during the regular office hours.” Minn. R. Pub. Access Rec’ds. Jud. Br. 2; see also State v. C.P.H., 707 N.W.2d 699, 704 (Minn. Ct. App. 2006) (holding that “the public generally is entitled to access judicial records.”). “Records” are defined as “any recorded information that is collected, created, received, maintained or disseminated by a court or court administrator.” Id. 3, subd. 5. Rules 7 and 8 dictate the procedure for requesting access, which is straightforward and does not require the payment of a fee unless otherwise established by statute; however, when copies are requested, the custodian may charge a copy fee. Id. 8; subd. 6.

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I. Appellate records

The Minnesota Court of Appeals has recognized that the public “generally is entitled to access judicial records,” including appellate records. See State v. C.P.H., 707 N.W.2d 699, 704–05 (Minn. Ct. App. 2006). Under the Rules of Public Access to Records of the Judicial Branch, however, the records of appellate proceedings in juvenile courts generally are not open to the public “unless otherwise provided by rule or order of the appellate court.” Minn. R. Pub. Access Rec’ds. Jud. Br. 4, subd. 1(d).

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J. Other criminal court records issues

Minnesota Rules of Public Access to Records of the Judicial Branch provide that any person may inspect and copy court records “upon request to a custodian.” Minn. R. Pub. Access Rec’ds. Jud. Br. 8, subd. 1. The rules also allow remote access to certain types of court records, including court calendars, indexes, judgment dockets, orders, appellate opinions, etc. Id. at subd. 2.

However, in In re Application of KSTP, 504 F. Supp. 360 (D. Minn. 1980), a federal court held that a television station did not have a right to access or copy portions of videotapes that were taken by a kidnapper/rapist of his victim, even though the videotapes were introduced as evidence at trial. The court based its decision on the availability to the press of tape transcripts and its finding that any public interest that access to the tapes would serve was outweighed by the victim’s right to privacy.

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V. Access to civil proceedings

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A. In general

The Minnesota Supreme Court has not addressed whether the public has a constitutional right of access to civil court proceedings. It has, however, generally recognized that court proceedings and documents in both civil and criminal cases enjoy a presumption of openness and that “[f]or many centuries, both civil and criminal trials have traditionally been open to the public.” In re GlaxoSmithKline PLC, 699 N.W.2d 749, 755 (Minn. 2005) (citing Gannett Co., Inc., v. DePasquale, 443 U.S. 368, 386 n.15 (1979)).

The District of Minnesota is part of the Eighth Circuit, which recognizes a common law right of access to civil proceedings and records. Webster Groves Sch. Dist. v. Pulitzer Publ’g Co., 898 F.2d 1371, 1376 (8th Cir. 1990); In re Guidant Corp. Implantable Defribillators Products Liability Litig., 245 F.R.D. 632, 636 (D. Minn. 2007) (citing Webster Groves Sch. Dist., 898 F.2d at 1376); see also Capellupo v. FMC Corp., Nos. 4-85-1239, 4-86-945, 1989 U.S. Dist. LEXIS 4916, at *3 (D. Minn. Apr. 28, 1989) (“The recognized policy of public access, originally most prevalent in criminal proceedings, extends equally to civil matters.”) (citing Gannett Co., Inc. v. DePasquale, 443 U.S. 368, 385 n.15 (1979)). Access to both civil and criminal proceedings allows the public to monitor the functioning of the courts and “insur[es] quality, honesty, and respect” in the legal system. Capellupo, 1989 U.S. Dist. LEXIS 4916, at *3 (citing In re Continental Illinois Sec. Litig., 732 F.2d 1302, 1308-09 (7th Cir. 1984)).

Minnesota state district courts also have applied a common law right of access to civil proceedings and records. E.g., Williams v. Heins Mills & Olson PLC, 36 Media L. Rep. 1924, 1926 (Minn. Dist. Ct. Hennepin County 2008); Friederichs v. Kinney & Lange, 22 Media L. Rep. 2530, 2531-32 (Minn. Dist. Ct. Hennepin County 1994). In addition, Minnesota Rules of Civil Procedure 43.01 (“In all trials the testimony of witnesses shall be taken orally in open court”) and 77.02 (“All trials upon the merits shall be conducted in open court and so far as convenient in a regular courtroom”) provide for public access to civil court proceedings.

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B. Pre-trial proceedings

In the civil context, the Minnesota Supreme Court has declined to endorse any “presumption of privacy” for pretrial discovery materials, leaving any protection to the discretion of the district judge under the “good cause shown” standards of Minn. R. Civ. P. 26.03. In re GlaxoSmithKline, 732 N.W.2d 257, 272 n.11 (Minn. 2007). The Minnesota Supreme Court, in an earlier decision in the GlaxoSmithKline litigation, stated “that documents produced as discovery are not presumed to be public and that district courts have broad discretion to issue protective orders,” but that “district courts presiding over civil actions are directed to weigh ‘policies in favor of openness against the interests of the litigant in sealing the record.’” In re GlaxoSmithKline, 699 N.W.2d 749, 755 (Minn. 2005). These decisions supersede the narrower view of public rights of access to pretrial discovery materials not yet filed with the court, as expressed by the Minnesota Court of Appeals in Star Tribune v. Minnesota Twins Partnership, 659 N.W.2d 287, 295–97 (Minn. Ct. App. 2003) (holding that the public has a common law right to inspect and copy civil court records, but that “private documents generated during discovery that are not filed with the court are not considered ‘judicial records’”). Of course, absent a protective order issued for good cause shown, “nothing precludes a party from voluntarily disclosing discovery documents.” State ex rel. Humphrey v. Philip Morris Inc., 606 N.W.2d 676, 686 (Minn. Ct. App. 2000).

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C. Trials

Although the Minnesota Supreme Court has not addressed whether the public has a constitutional right of access to civil court proceedings, it has, however, generally recognized that court proceedings and documents in both civil and criminal cases enjoy a presumption of openness. In re GlaxoSmithKline PLC, 699 N.W.2d 749, 755 (Minn. 2005) (citing Gannett Co., Inc., v. DePasquale, 443 U.S. 368, 386 n.15 (1979)). In addition, Minnesota Rules of Civil Procedure 43.01 (“In all trials the testimony of witnesses shall be taken orally in open court”) and 77.02 (“All trials upon the merits shall be conducted in open court and so far as convenient in a regular courtroom”) provide for public access to civil court proceedings.

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D. Post-trial proceedings

Though Minnesota courts have not specifically addressed whether the public has a constitutional right of access to post-trial proceedings, the Minnesota Supreme Court has generally recognized that court proceedings and documents in both civil and criminal cases enjoy a presumption of openness. In re GlaxoSmithKline PLC, 699 N.W.2d 749, 755 (Minn. 2005) (citing Gannett Co., Inc., v. DePasquale, 443 U.S. 368, 386 n.15 (1979)).

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E. Appellate proceedings

Though Minnesota courts have not specifically addressed whether the public has a constitutional right of access to appellate proceedings, the Minnesota Supreme Court has generally recognized that court proceedings and documents in both civil and criminal cases enjoy a presumption of openness. In re GlaxoSmithKline PLC, 699 N.W.2d 749, 755 (Minn. 2005) (citing Gannett Co., Inc., v. DePasquale, 443 U.S. 368, 386 n.15 (1979)). In addition, Minnesota Rules of Civil Procedure 43.01 (“In all trials the testimony of witnesses shall be taken orally in open court”) and 77.02 (“All trials upon the merits shall be conducted in open court and so far as convenient in a regular courtroom”) provide for public access to civil court proceedings.

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VI. Access to civil records

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A. In general

In Minneapolis Star & Tribune Co. v. Schumacher, 392 N.W.2d 197, 202–03 (Minn. 1986), the Minnesota Supreme Court recognized the common law presumption in favor of granting the public the right to inspect and copy court records and documents. This common law presumption of access has been characterized as “strong.” Id. at 203. Minnesota state district courts have also applied a common law right of access to civil proceedings and records. See, e.g., Williams v. Heins Mills & Olson PLC, 36 Media L. Rep. 1924, 1926 (Minn. Dist. Ct. Hennepin County 2008); Friederichs v. Kinney & Lange, 22 Media L. Rep. 2530, 2531–32 (Minn. Dist. Ct. Hennepin County 1994).

At the federal level, the District of Minnesota is part of the Eighth Circuit, which also recognizes a common law right of access to civil files and proceedings. Webster Groves Sch. Dist. v. Pulitzer Publ’g Co., 898 F.2d 1371, 1376 (8th Cir. 1990); In re Guidant Corp. Implantable Defribillators Products Liability Litig., 245 F.R.D. 632, 636 (D. Minn. 2007) (citing Webster Groves Sch. Dist., 898 F.2d at 1376).

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

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B. Dockets

Although Minnesota courts have not addressed this issue, the Eighth Circuit has held that case dockets are public records. In re Search Warrant for Secretarial Area Outside Office of Gunn, 855 F.2d 569, 570 (8th Cir. 1988). Case dockets for all Minnesota state and federal courts are typically available online.

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C. Discovery materials

In the civil context, the Minnesota Supreme Court has declined to endorse any “presumption of privacy” for pretrial discovery materials, leaving any protection to the discretion of the district judge under the “good cause shown” standards of Minn. R. Civ. P. 26.03. In re GlaxoSmithKline, 732 N.W.2d 257, 272 n.11 (Minn. 2007). The Minnesota Supreme Court, in an earlier decision in the GlaxoSmithKline litigation, stated “that documents produced as discovery are not presumed to be public and that district courts have broad discretion to issue protective orders,” but that “district courts presiding over civil actions are directed to weigh ‘policies in favor of openness against the interests of the litigant in sealing the record.’” In re GlaxoSmithKline, 699 N.W.2d 749, 755 (Minn. 2005). These decisions supersede the narrower view of public rights of access to pretrial discovery materials not yet filed with the court, as expressed by the Minnesota Court of Appeals in Star Tribune v. Minnesota Twins Partnership, 659 N.W.2d 287, 295–97 (Minn. Ct. App. 2003) (holding that the public has a common law right to inspect and copy civil court records, but that “private documents generated during discovery that are not filed with the court are not considered ‘judicial records’”; also holding that documents submitted to the court in connection with a discovery motion are not subject to the constitutional presumption of access). Of course, absent a protective order issued for good cause shown, “nothing precludes a party from voluntarily disclosing discovery documents.” State ex rel. Humphrey v. Philip Morris Inc., 606 N.W.2d 676, 686 (Minn. Ct. App. 2000).

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D. Pre-trial motions and records

The United States District Court of the District of Minnesota has recognized that the public has a common law right to access judicial records in civil cases, including the briefs filed by the parties in support of or in opposition to motions for summary judgment. See In re Guidant Corp. Implantable Defibrillators Prods. Liab. Litig., 2007 U.S. Dist. LEXIS 74166, at *13 (D. Minn. Oct. 3, 2007). The court also noted that when it comes to documents relating to dispositive motions, a party opposing disclosure has a heightened burden to overcome the presumptive right of public access. Id. at *14. (citing Joy v. North, 692 F.2d 880, 893 (2d Cir. 1982)).

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E. Trial records

In Minneapolis Star & Tribune Co. v. Schumacher,  392 N.W.2d 197, 202–03 (Minn. 1986), the Minnesota Supreme Court recognized the common law presumption in favor of granting the public the right to inspect and copy court records and documents. This common law presumption of access has been characterized as “strong.” Id. at 203. Minnesota state district courts have also applied a common law right of access to civil proceedings and records. See, e.g., Williams v. Heins Mills & Olson PLC, 36 Media L. Rep. 1924, 1926 (Minn. Dist. Ct. Hennepin County 2008); Friederichs v. Kinney & Lange, 22 Media L. Rep. 2530, 2531–32 (Minn. Dist. Ct. Hennepin County 1994).

At the federal level, the District of Minnesota is part of the Eighth Circuit, which also recognizes a common law right of access to civil files and proceedings. Webster Groves Sch. Dist. v. Pulitzer Publ’g Co., 898 F.2d 1371, 1376 (8th Cir. 1990); In re Guidant Corp. Implantable Defribillators Products Liability Litig., 245 F.R.D. 632, 636 (D. Minn. 2007) (citing Webster Groves Sch. Dist., 898 F.2d at 1376).

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

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F. Settlement records

The Minnesota Supreme Court has held that there is no constitutional right of access to settlement documents or the transcripts of settlement hearings that have been sealed by the court. Minneapolis Star & Tribune Co. v. Schumacher, 392 N.W.2d 197, 204 (Minn. 1986). The court, however, recognized that there is a common law presumption in favor of granting the public access to the documents filed with the court. Id. at 205; see also Bohnen v. Dorsey & Whitney, LLP, 45 Media L. Rep. 1881 (Minn. Dist. Ct. Hennepin County 2017). Therefore, a party who seeks to restrict access to settlement documents and transcripts of settlement hearings filed with the court must show that there are “strong countervailing reasons why access should be restricted.” Schumacher, 392 N.W.2d at 205–06; Nelson v. Bremer Trust, N.A., 44 Media L. Rep 2367, 2370, 2373 (Minn. Dist. Ct. Hennepin County 2016). “Absent such a showing, a court may not restrict access to settlement documents and transcripts that have been filed with the court.” Schumacher, 392 N.W.2d at 206; see also Nelson, 44 Media L. Rep at 2373 (“When a court is charged with the duty to review the terms of a settlement, that settlement is not automatically entitled to any more confidentiality than a judge’s decision or jury’s verdict embodying the same terms.”).

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G. Post-trial records

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

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H. Appellate records

In Minneapolis Star & Tribune Co. v. Schumacher,  392 N.W.2d 197, 202–03 (Minn. 1986), the Minnesota Supreme Court recognized the common law presumption in favor of granting the public the right to inspect and copy court records and documents. This common law presumption of access has been characterized as “strong.” Id. at 203.  In addition, the Minnesota Supreme Court has adopted The Rules of Public Access to Records of the Judicial Branch which provide that as a general policy, the “[r]ecords of all courts and court administrators … are presumed to be open to any member of the public for inspection or copying at all times during the regular office hours.” Minn. R. Pub. Access Rec’ds. Jud. Br. 2. “Records” are defined as “any recorded information that is collected, created, received, maintained or disseminated by a court or court administrator.” Id. 3, subd. 5. Rules 7 and 8 dictate the procedure for requesting access, which is straightforward and does not require the payment of a fee unless otherwise established by statute; however, when copies are requested, the custodian may charge a copy fee. Id. 8; subd. 6.

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I. Other civil court records issues

Minnesota Rules of Public Access to Records of the Judicial Branch provide that any person may inspect and copy court records “upon request to a custodian.” Minn. R. Pub. Access Rec’ds. Jud. Br. 8, subd. 1. The rules also allow remote access to certain types of court records, including court calendars, indexes, judgment dockets, orders, appellate opinions, etc. Id. at subd. 2.

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VII. Jury and grand jury access

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A. Access to voir dire

The Minnesota Supreme Court has recognized that generally, “the First Amendment requires public access to the jury selection process in criminal trials.” Mankato Free Press Co. v. Dempsey, 581 N.W.2d 311, 312 (Minn. 1998) (citing Press-Enterprise Co. v. Superior Court, 464 U.S. 501 (1984)). In Butterfield v. State, No. C2-00-1090, 2001 Minn. App. LEXIS 231, at *5 (Minn. Ct. App. Mar. 6, 2001), however, the Minnesota Court of Appeals stated that jurors should be protected from the public disclosure of sensitive personal information during voir dire, and, therefore, “[a] trial court has the discretion to conduct a portion of voir dire in private if circumstances warrant it.” Id. (citing Minn. R. Crim. P. 26.03, subd. 6(1)). If the interrogation during voir dire touches on “deeply personal matters,” this may give rise to a “compelling interest” sufficient to prevent public access to voir dire. Butterfield, 2001 Minn. App. LEXIS 231, at *6 (citing Press-Enterprise Co. v. Superior Court, 464 U.S. 501, 511–12 (1984)). In Butterfield, some of the voir dire questions dealt with the jurors’ past experiences with explicit sexual language and, therefore, “[t]he trial court was well within its discretion to permit counsel to privately voir dire the potential jurors who responded affirmatively to these questions in order to minimize their embarrassment and ensure complete and accurate responses.” Id.

Under the Minnesota Rules of Criminal Procedure, if it appears that jurors will be asked “sensitive questions that could be embarrassing,” the court may advise the jurors of their right to exclude the public from voir dire. Minn. R. Crim. P. 26.02, subd. 4(4)(a). When deciding whether to exclude the public, the court must “balance the jurors’ privacy interests, the defendant’s right to a fair and public trial, and the public’s interest in access to the courts.” Id., subd. 4(4)(c). The court may close voir dire only if it finds that there is a “substantial likelihood” that the public presence will “interfere with an overriding interest.” Id. Defendant’s interest in a fair trial as well as a juror’s legitimate interest in having his or her personal matters kept private constitutes an “overriding interest” sufficient to justify closure. Id. Before closing the voir dire, the court must set forth the reasons justifying the closure, which must be made part of the record. Id., subd. 4(4)(f). The court must also review alternatives to closure and must state why such alternatives are inadequate. Id.

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B. Juror identities, questionnaires and other records

The Minnesota Supreme Court has held that an anonymous jury may be impaneled only if the trial court: “(a) determines that there is a strong reason to believe that the jury needs protection from external threats to its members’ safety and impartiality; and (b) takes reasonable precautions to minimize any possible prejudicial effect the jurors’ anonymity might have on the defendant.” State v. Bowles, 530 N.W.2d 521, 530-531 (Minn. 1995); see also State v. Wren, 738 N.W.2d 378, 385 (Minn. 2007); State v. Ford, 539 N.W.2d 214, 220 (Minn. 1995). A trial judge must include in the record “a clear and detailed explanation” of the facts that demonstrate that the jury needs protection from external threats. Bowles, 530 N.W.2d at 531. A trial court’s decision to impanel an anonymous jury is reviewed under the “abuse of discretion” standard. Id.

The Minnesota Court of Appeals has held that “[a]ccess to records revealing the identities of jurors may be denied only in the ‘interest of justice,’ upon a showing of ‘exceptional circumstances peculiar to the case.’” State v. Stewart, No. C4-92-1321, 1992 Minn. App. Lexis 1278, at *1 (Minn. Ct. App. Aug. 18, 1992) (citing Minn. R. Gen. Prac. 814(a) and In re Globe Newspaper Co., 920 F.2d 88, 97 (1st Cir. 1990)). The individual preferences of jurors to remain anonymous are insufficient to justify sealing the records that contain juror identifying information. Id. (citing In re Globe Newspaper Co., 920 F.2d at 91). The desire of the victim’s family to contact jurors does not, by itself, create a risk of personal harm or a threat of jury tampering and, therefore, does not justify denying public access to juror information. Id. (citing In re Globe Newspaper Co., 920 F.2d at 97).

Under the Minnesota Rules of Criminal Procedure, if all or part of the voir dire is closed to the public, “a complete record of the [voir dire] proceedings shall be made.” Minn. R. Crim. P. 26.02, subd. 4(4)(g). Such records must be transcribed upon request, and the transcript must be made available to the public provided that this can be accomplished without jeopardizing the “overriding interests” that justified the closure of the voir dire proceedings in the first place. Id. The court may order that all or part of the voir dire transcript be sealed or excised, or the court may order that the names of the jurors be withheld if doing so will protect the “overriding interests” involved in the case. Id.

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C. Grand jury proceedings and records

The Minnesota Rules of Criminal Procedure indicate that “the matters occurring before the grand jury” may not be disclosed to anyone other than the prosecuting attorney and, in certain circumstances, the defendant or the defense counsel. See Minn. R. Crim. P. 18.07. The rules specify that only the following individuals are allowed during grand jury proceedings: attorneys for the state, witnesses under examination, qualified interpreters as needed to assist the witnesses or jurors, and a reporter or operator of a recording instrument. Minn. R. Crim. P. 18.03. The court may order that a peace officer be present when a particular witness testifies in front of the grand jury. Id. In some circumstance, the attorney for the witness may also be present in order to advise and consult with the witness while the witness is testifying. Id. Further, if a witness is under the age of eighteen, “a parent, guardian or other supportive person” may be present when the underage witness is testifying. Id.

In Minnesota, the records of grand jury proceedings are not open to the public. See Boitnott v. State, 640 N.W.2d 626, 630 (Minn. 2002). Under the Minnesota Rules of Criminal Procedure, a verbatim record must be made of the evidence that was taken before the grand jury and all of the events and statements that occurred during grand jury proceedings, with the exception of the deliberations and voting of the grand jury. Minn. R. Crim. P.18.04, subd. 1. The record may not include the names of any grand juror. Id. Records are disclosed only to the court and the prosecuting attorney. Boitnott, 640 N.W.2d at 630 (citing then Minn. R. Crim. P. 18.05, subd. 1, now Minn. R. Crim. P. 18.04, subd. 1). In addition, the court may order that the grand jury records be disclosed to the defendant or the defense counsel if the defendant makes a motion “for good cause shown” or if the defendant shows that grounds may exist to dismiss the indictment because of the matters occurring before the grand jury. Id. The burden is on the defendant to show that a good cause exists for the disclosure of grand jury information. Id. A showing of good cause requires a showing of a “particularized need.” Id. A “particularized need” exists if “(a) the material sought is needed to avoid a possible injustice in another judicial proceeding, (b) the need for disclosure is greater than the need for continued secrecy, and (c) the request is structured to cover only the material so needed.” Id. (citing Douglas Oil Co. v. Petrol Stops Nw., 441 U.S. 211, 222 (1979)).

Transcripts of grand jury proceedings are not available to the public. See Minn. R. Crim. P. 18.04, subd. 2. The court may, however, order that parts of the grand jury transcript be disclosed to the defense counsel before trial. Id.

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D. Interviewing jurors

The Minnesota Court of Appeals has held that “[a]ccess to records revealing the identities of jurors may be denied only in the ‘interest of justice,’ upon a showing of ‘exceptional circumstances peculiar to the case.’” State v. Stewart, No. C4-92-1321, 1992 Minn. App. LEXIS 1278, *1 (Minn. Ct. App. Aug. 18, 1992) (citing Minn. R. Gen. Prac. 814(a) and In re Globe Newspaper Co., 920 F.2d 88, 97 (1st Cir. 1990); granting petition for writ of prohibition and requiring disclosure of juror identities). It has also held that there is a First Amendment interest in access that cannot be overcome by “[t]he individual preferences of jurors to remain anonymous.” Id. *1–2.

As the Stewart court recognized, the names and addresses of jurors in criminal trials are specifically and expressly made accessible to the public by rules promulgated by the Minnesota Supreme Court, including Rules 2 and 4 of the Rules of Public Access to Records of the Judicial Branch (setting forth a presumption of access), Rule 814 of the General Rules of Practice for District Courts (discussing prospective jurors and their questionnaires), and Rules 25.03 and 26.02 of the Minnesota Rules of Criminal Procedure (setting forth rules for restricting access).

Minn. R. Crim. P. 26.02 sets forth the requirements for restricting access to jurors’ names, addresses, telephone numbers, and other identifying information. Among other things, the court must find a “strong reason to believe that the jury needs protection from external threats to its members’ safety or impartiality.”

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VIII. Proceedings involving minors

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A. Delinquency

Under Minnesota statutes, juvenile delinquency hearings generally are not open to the public. Minn. Stat. § 260B.163, subd. 1; see also In re Welfare of C.D.L., 306 N.W.2d 819, 821 (Minn. 1981) (indirectly recognizing that “juvenile proceedings are closed to the public”). However, juvenile delinquency hearings are open to the public if a minor has committed an offense that would be a felony if committed by an adult and the minor was at least sixteen years old at the time of the offense. Minn. Stat. § 260B.163, subd. 1; see also Minneapolis Star Tribune v. Bush, 20 Media L. Rep. 2293 (Minn. Ct. App. 1993) (where it was undisputed that public had access to delinquency proceeding due to age and alleged crime of defendant, and public also had access to reference hearing at which court would decide whether defendant would be tried as an adult). The court may still exclude the public from the courtroom when the parties are discussing evidence relating to the minor’s psychological state or other evidence that would not be accessible to the public in an adult proceeding. Minn. Stat. § 260B.163, subd. 1

In other delinquency proceedings, the court may exercise its discretion to admit those persons who “have a direct interest in the case or in the work of the court.” Id. Victims are allowed to attend juvenile proceedings but may be excluded in certain limited circumstances. Id. Further, when a juvenile is certified to stand trial as an adult, “the prosecuting authority shall proceed with the case as if the jurisdiction of the juvenile court had never attached.” Minn. Stat. § 260B.125 subd. 7.

Generally, the records of juvenile delinquency proceedings are unavailable to the public. See Minn. Stat. 260B.171, subd. 4. The public, however, has access to the written appellate opinions of juvenile courts as well as the records of juvenile delinquency proceedings where the offender is over the age of sixteen and has committed a crime that would be a felony if committed by an adult. Id.

In In re Welfare of K, the Minnesota Supreme Court found that the statutory exclusion of the “public” from juvenile proceedings did not apply to the members of the news media. See In re Welfare of K, 269 N.W.2d 367, 370 (Minn. 1978). According to the court, the news media has “a direct interest … in the work of the court” pursuant to the statute and the trial court may exercise its discretion to allow reporters to be present during juvenile proceedings that are otherwise closed to the rest of the public. Id. at 371. Although the court in In re Welfare of K was interpreting a different section of the Minnesota statutes—Minn. Stat. § 260.155, subd. 1, which has since been repealed—the language in Minn. Stat. § 260B.163, subd. 1. is identical to the old statute and, therefore, the court’s reasoning is likely still applicable. It should also be noted, however, that In re Welfare of K did not involve a juvenile delinquency proceeding.

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B. Dependency

Under Minnesota statutes, “absent exceptional circumstances,” court hearings relating to the termination of parental rights and various other child protection matters are open to the public. Minn. Stat. § 260C.163, subd. 1(c). The records from these proceedings are also available for public inspection pursuant to the Minnesota Rules of Juvenile Protection Procedure. Minn. Stat. § 260C.171, subd. 2. Custody hearings are generally open to the public, but the court may close the hearings if it finds that “a public hearing may be detrimental to the child’s best interests.” Minn. Stat. § 518.168. Further, the court may seal any portion of the record in custody proceedings if it finds that doing so is necessary “for the protection of the child’s welfare.” Id.

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C. Other proceedings involving minors

Under Minnesota statutes, child adoption hearings are closed to the public and all associated records are inaccessible except as provided in the Minnesota Rules of Adoption Procedure. Minn. Stat. § 260C.163, subd. 1(d).

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D. Prohibitions on photographing or identifying juveniles

According to the Minnesota Court of Appeals, any prior restraint on the freedom of the press must be “necessitated by a compelling state interest, and … narrowly tailored to serve that interest.” Minneapolis Star & Tribune Co. v. Schmidt, 360 N.W.2d 433, 435 (Minn. Ct. App. 1985) (citing Globe Newspaper Co. v. Superior Court, 457 U.S. 596 (1982)); see also Minneapolis Star & Tribune Co. v. Lee, 353 N.W.2d 213, 215 (Minn. Ct. App. 1984). In Schmidt, the Minnesota Court of Appeals held that the possible traumatization of a child involved in juvenile court proceedings was not a “compelling state interest” sufficient to justify a gag order on the press. Schmidt, 360 N.W.2d at 435. As a result, the trial court’s order restraining the press from publishing any information relating to the particular proceedings in question was held to be unconstitutional. Id. at 436.

However, in Austin Daily Herald v. Mork, 507 N.W.2d 854 (Minn. Ct. App. 1993), the Minnesota Court of Appeals upheld a trial court’s decision to allow news reporters into the courtroom during the testimony of juveniles on the condition that the reporters not publish the juveniles’ names or divulge information pertaining to any confidential records revealed through their testimony. The court held that this was not a prior restraint.

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E. Minor testimony in non-juvenile courts

In Minnesota, trial courts are authorized to close courtrooms when minor victims testify regarding sex crimes committed against them. State v. McRae, 494 N.W.2d 252, 257 (Minn. 1992). Minnesota courts recognize that although there is a constitutional presumption of openness in criminal trials, “safeguarding the physical and psychological well-being of a minor [victim of a sex crime] is a compelling [interest]” sufficient to justify closure. State v. Delacruz, No. A03-129, 2004 Minn. App. LEXIS 104, at *5 (Minn. Ct. App. Feb. 3, 2004) (citing Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 607–09 (1982)); see also State v. Fageroos, 531 N.W.2d 199, 202 (Minn. 1995) (stating that although the protection of minor victims of sexual offenses is a compelling interest that can be sufficient to justify closure in criminal trials, trial courts must still engage in a case-by-case determination).

Under Minnesota statutes, a trial judge may exclude the public from the courtroom during a minor victim’s testimony if doing so is necessary to protect the minor or to ensure the fairness of the trial, provided that the court gives the prosecutor, the defendant, and the public the opportunity to object to closure. Minn. Stat. § 631.045; see also Delacruz, 2004 Minn. App. LEXIS 104, at *5–6. Before closing the courtroom, the judge must specify the reasons that justify closure. Minn. Stat. § 631.045. Trial courts must determine on a case-by-case basis whether closure is necessary to protect minor victims and must consider several factors, including the nature of the crime, the wishes of the victim, the interests of parents and relatives, as well as the minor victim’s age, psychological maturity, and understanding. Fageroos, 531 N.W.2d at 202 (citing Globe Newspaper, 457 U.S. at 607-08).

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IX. Special proceedings

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A. Tribal Courts in the jurisdiction

Research did not reveal any opinion where a tribal court or Minnesota state court addressed this issue.

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B. Probate

Research did not reveal any opinion where a Minnesota court addressed this issue.

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C. Competency and commitment proceedings

Court files relating to civil commitment proceedings are available for public inspection, copying and release, except as may be limited by a court order. In re Promulgation of Amendments to Special Rules of Procedure Governing Under the Minn. Commitment & Treatment Act., No. ADM10-8046, 2013 Minn. LEXIS 805, at *7 (Sep. 8, 2013). However, any related pre-petition screening report, court appointed examiner's report, or medical records are to be maintained separately and not made available to the public, except by express order of the district court. Id.

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D. Attorney and judicial discipline

According to a list of frequently asked questions available from the Office of Lawyers Professional Responsibility at http://lprb.mncourts.gov/complaints/LawyerComplaintDocs/Complaint%20Brochure%20-%20English.pdf, complaints filed against lawyers generally are not public. Investigation files are not available to anyone except the lawyer. However, parts of the file may be disclosed when necessary for investigation. Any related Minnesota Supreme Court filings, trials, and hearings are open to the public.

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E. Immigration proceedings

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F. Other proceedings

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X. Restrictions on participants in litigation

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A. Media standing to challenge third-party gag orders

Minnesota courts have not directly addressed this issue. However, in the access context, the Minnesota Supreme Court recognized that the press has standing to challenge a trial court’s order to seal various documents in criminal cases. Nw. Publ’ns., Inc. v. Anderson, 259 N.W.2d 254, 256 (Minn. 1977). The Court explained that the press has standing as “the orders have the effect of either directly or indirectly interfering with their functions of collecting and disseminating the news.” Id. (citing CBS v. Young, 522 F.2d 234 (6th Cir. 1975) and State ex rel. Beacon Journal Pub. Co. v. Kainrad, 348 N.E.2d 695 (Ohio 1976)); see also Baloga v. MacCabee, 20 Media L. Rep. 2201, 2202 (Minn. Dist. Ct. Ramsey County 1992) (“Obviously intervenors’ protected right would clearly be impaired or impeded if the court’s records were sealed.”).

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B. Gag orders on the press

The Minnesota Supreme Court has stated that “both Federal and state constitutional provisions guaranteeing freedom of the press are couched in terms of prohibition of prior restraints on publication.” Nw. Publ’ns., Inc. v. Anderson, 259 N.W.2d 254, 257 (Minn. 1977) (citing U.S. Const. amends. I, XIV; Minn. Const. art.1, § 3). Thus, prior restraints on speech and publication are generally improper, but this general presumption of impropriety can be overcome “where a clear showing is made that the exercise of First Amendment rights will interfere with the rights of the parties to a fair trial or that some restriction is otherwise necessary.” Id.; see also Minneapolis Star & Tribune Co. v. Lee, 353 N.W.2d 213, 214 (Minn. Ct. App. 1984) (“Prior restraints of speech have long been deemed unconstitutional except in the most drastic of situations”).

According to the Minnesota Court of Appeals, any prior restraint on the freedom of the press must be “necessitated by a compelling state interest, and … narrowly tailored to serve that interest.” Minneapolis Star & Tribune Co. v. Schmidt, 360 N.W.2d 433, 435 (Minn. Ct. App. 1985) (citing Globe Newspaper Co. v. Superior Court, 457 U.S. 596 (1982)); see also Lee, 353 N.W.2d at 215 (Minn. Ct. App. 1984). In Schmidt, the Minnesota Court of Appeals held that the possible traumatization of a child involved in juvenile court proceedings was not a “compelling state interest” sufficient to justify a gag order on the press. Schmidt, 360 N.W.2d at 435. As a result, the trial court’s order restraining the press from publishing any information relating to the particular proceedings in question was held to be unconstitutional. Id. at 436.

In contrast, the Minnesota Court of Appeals upheld as valid a trial court’s decision to allow news reporters into the courtroom during the testimony of juveniles on the condition that the reporters would not publish the names of the juveniles and would not divulge information pertaining to any confidential records that would be revealed during the testimony. Austin Daily Herald v. Mork, 507 N.W.2d 854 (Minn. Ct. App. 1993). The media representatives argued that the trial court had imposed “an impermissible prior restraint on the publication of information.” Id. at 856. The Court of Appeals disagreed with this argument and held that the trial court imposed valid restrictions on reporters who chose to attend a criminal trial which had been properly closed to the rest of the public. Id. at 856. The court recognized that generally, there is “a heavy presumption against the constitutional validity of restrictions on the publication of information obtained lawfully by the media.” Id. (citing Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 70 (1963)). In this case, however, rather than restraining news reporters from publishing information already in their possession, the court permitted members of the press to attend a closed criminal hearing, as long as the reporters agreed to forego the publication of certain information obtained during that hearing. Id.

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C. Gag orders on participants

The Minnesota Court of Appeals has indirectly recognized that trial judges may impose gag orders on participants. See Minneapolis Star & Tribune Co. v. Lee, 353 N.W.2d 213, 215 (Minn. Ct. App. 1984).

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D. Interviewing judges

Research did not reveal any opinion where a Minnesota court addressed this issue.

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XI. Other issues

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A. Interests often cited in opposing a presumption of access

According to the Minnesota Supreme Court, a party seeking to restrict public access to court files and records despite the constitutional presumption of openness must demonstrate that: (a) a compelling governmental interest exists, and (b) the restriction on access is narrowly tailored to meet that governmental interest. See Minneapolis Star & Tribune Co. v. Schumacher, 392 N.W.2d 197, 203 (Minn. 1986). Some of the more common interests cited by courts as “compelling” involve trade secrets, testimony from minors, and the privacy of jurors.

The Minnesota Supreme Court has recognized that in certain circumstances, it may be appropriate to exclude the public from the courtroom to protect trade secrets or other proprietary information. See generally Rahr Malting Co. v. County of Scott, 632 N.W.2d 572, 576–77 (Minn. 2001). In Rahr Malting Co., the court noted that even if a hearing is open to the public under state statutes, the court must weigh the policies in favor of openness against the interests of the litigants in preventing the public from obtaining access to confidential information. Id. at 576. The trial court must hold an in camera hearing to allow the parties to present all relevant evidence and to show the reasons why the information the parties are seeking to protect is a “trade secret” as defined in Minn. Stat. § 325C.01, subd. 5. Id.; see also Minn. Stat. § 325C.05 (the court must protect trade secrets by reasonable means, including protective orders, in camera hearings and by sealing the records).

Minnesota trial courts are also authorized to close courtrooms when minor victims testify regarding sex crimes committed against them. State v. McRae, 494 N.W.2d 252, 257 (Minn. 1992). In addition, a trial judge may exclude the public from the courtroom during a minor victim’s testimony if doing so is necessary to protect the minor or to ensure the fairness of the trial, provided that the court gives the prosecutor, the defendant, and the public the opportunity to object to closure. Minn. Stat. § 631.045; see also State v. Delacruz, No. A03-129, 2004 Minn. App. LEXIS 104, at *5–6 (Minn. Ct. App. Feb. 3, 2004). Before closing the courtroom, the judge must specify the reasons that justify closure. Minn. Stat. § 631.045; see also “Proceedings involving minors/Minor testimony in non-juvenile courts” above.

In addition, under the Minnesota Rules of Criminal Procedure, if it appears that jurors will be asked “sensitive questions that could be embarrassing,” the court may advise the jurors of their right to exclude the public from voir dire. Minn. R. Crim. P. 26.02, subd. 4(4)(a). If all or part of the voir dire is closed to the public, “a complete record of the [voir dire] proceedings shall be made.” Minn. R. Crim. P. 26.02, subd. 4(4)(g); see also “Jury and grand jury access/Access to voir dire” and “Jury and grand jury access/Juror identities, questionnaires and other records” above.

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B. Cameras and other technology in the courtroom

Cameras and other audio and video means of covering court proceedings are allowed during Minnesota Supreme Court and Court of Appeals hearings. Minn. R. Civ. App. P. 134.10. Notice of intent to cover a hearing must be provided to the Court Information Office at least twenty-four hours in advance. Id. Broadcast and photographic coverage are to be arranged on a pool basis, with only one TV camera and two still cameras permitted in the courtroom at any time. Id. Motor-driven still cameras may not be used. Id. The court has a right to determine the exact locations for all camera and video equipment in the courtroom. Id. All equipment must be in place and tested at least fifteen minutes before the hearing begins. Id.; see also Minn. R. Gen. Prac. 4.04 (technical standards for photography and broadcast coverage of judicial proceedings).

As for the trial courts, Minnesota is more restrictive than various other states. In criminal trial courtrooms, prior to the return of a guilty verdict or acceptance of a guilty plea, cameras are allowed only if the press obtains prior consent from the judge and the parties. Minn. R. Gen. Prac. 4.02(c). Judicial consent is also required for the use of cameras in civil trial courtrooms; however, consent of the parties is not required. Id.

As of November 10, 2015, the Minnesota Supreme Court authorized a pilot project permitting limited audio and video coverage of criminal courtroom proceedings held after a guilty verdict has been returned or a guilty plea accepted. Minn. R. Gen. Prac. 4.02(d). However, audio or video coverage of such proceedings is not permitted in any of the following circumstances: (i) if a jury present; (ii) if held in problem-solving courts, such as drug courts, mental health courts, veterans’ courts, and DWI courts; (iii) in cases involving charges of criminal sexual conduct brought under Minn. Stat.§§ 609.293-.352, or in cases involving charges of family or "domestic violence," as defined in Minn. Stat. § 609.02, subd. 16; or (iv) if a victim is testifying, unless that victim affirmatively acknowledges and agrees to the coverage in writing before testifying. Id. In all other circumstances, absent good cause, the judge must permit audio and video coverage of the hearing, if notice of intent to cover the hearing was provided to the Court Information Office at least ten days in advance. Id.; Minn. R. Gen. Prac. 4.03(a). Factors for determining good cause to prohibit coverage include (1) the privacy, safety, and well-being of the participants or other interested persons; (2) the likelihood that coverage will detract from the dignity of the proceeding; (3) the physical facilities of the court; and (4) the fair administration of justice. Minn. R. Gen. Prac. 4.02(d). Audio and video coverage must be limited to courtroom activity only and is not permitted during any recess or when a judge is not present. Id.

A link to the current procedures for requesting permission to use cameras in both trial and appellate courtrooms is available under the “Cameras in Courtrooms” tab at http://www.mncourts.gov/media.aspx.

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C. Tips for covering courts in the jurisdiction

Judges have differing rules on courtroom decorum. Some allow cell phones to be brought into the courtroom, although they should be turned off. During jury trials, reporters should take care to make calls away from the jury room, or they may face reprimand from the judge. Courts treat cell phone cameras as they do traditional cameras. See “Other issues/Cameras and other technology in the courtroom” above.

Note-taking is allowed, but reporters must seek permission from the trial court before using any recording device, whether a video camera or an audio recorder. They should also seek permission before blogging or “tweeting” from inside a courtroom.

The Minnesota Judicial Branch website, http://www.mncourts.gov/, contains several useful resources for the media, including:

• A judicial branch structure chart (http://www.mncourts.gov/mncourtsgov/media/CIOMediaLibrary/DocumentLibrary/QF-Jurisdiction2014.pdf);
• Contact information for various divisions of the Minnesota court system (http://www.mncourts.gov/Find-Courts.aspx); and
• A Media Resource Center, with contact information for public affairs and media relations (http://www.mncourts.gov/media.aspx).

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