Pennsylvania

Author

Michael Berry
Lindsey Zionts
Fred G. DeRitis
Leslie Minora
Shawn F. Summers
Ballard Spahr LLP
1735 Market Street, 51st Floor
Philadelphia, PA 19103
215.665.8500
berrym@ballardspahr.com
ziontsl@ballardspahr.com
deritisf@ballardspahr.com
minoral@ballardspahr.com
summerss@ballardspahr.com

A previous version of this chapter was written by Robert C. Clothier, currently Vice President and General Counsel of Urisinus College.

Last updated: December 2023

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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 United States Constitution and the Pennsylvania Constitution grant the public and the press a presumptive right of access to civil and criminal proceedings. See U.S. Const. amend. I; Pa. Const. art. I, §11 (“All courts shall be open.”); Commonwealth v. Berrigan, 501 A.2d 226, 232 (Pa. 1985) (“[T]he First Amendment to the Federal Constitution is broad enough to encompass the right of access to criminal trials to the public and media . . . .”); Commonwealth v. Hayes, 414 A.2d 318, 321 (Pa. 1980) (“[I]n addition to providing a right to the accused for ‘a speedy public trial,’ [the Pennsylvania Constitution] also has the additional requirement that ‘all courts shall be open.’”); see also In re M.B., 819 A.2d 59, 61 (Pa. Super. 2003) (“This constitutional provision has been referred to as a ‘mandate’ for open and public trials, and has been applied in both civil and criminal cases.”) (citation omitted).

There are three policy bases for such access: (1) access “fosters public confidence in the fairness” of the justice system; (2) it “aids in the public oversight of the judiciary”; and (3) it “serves as a ‘community therapeutic value.’” Commonwealth v. Davis, 635 A.2d 1062, 1069 (Pa. Super. 1993) (citation omitted).

There is also “a qualified First Amendment right of access to certain judicial . . . documents.” Commonwealth v. Martinez, 917 A.2d 856, 860 (Pa. Super. 2007). Thus, in Pennsylvania, the First Amendment right of access extends to both judicial proceedings and documents.

In Pennsylvania, the common law also grants the public and press a presumptive right of access to “public judicial documents.” Commonwealth v. Fenstermaker, 530 A.2d 414, 418 (Pa. 1987); see also Commonwealth v. Curley, 189 A.3d 467, 472-73 (Pa. Super. 2018) (recognizing “the right of the public to inspect judicial records”). The common law presumption of openness requires courts to balance “the presumption of openness attached to a public judicial document” against the “circumstances warranting closure of the document to public inspection.” Fenstermaker, 530 A.2d at 420.

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B. Overcoming a presumption of openness

“[T]he First Amendment provides a greater right of public access than the common law.” Commonwealth v. Long, 922 A.2d 892, 897 (Pa. 2007). “[T]he common law test requires the trial court to balance the presumption of openness against the circumstances warranting sealing of the document, whereas under the First Amendment the proceedings can be closed only upon showing a compelling government interest and any restrictions must be narrowly tailored to serve that interest.” Id. at 897 n.6 (citation omitted).

As the Pennsylvania Superior Court has explained:

There are two methods for analyzing requests for closure of judicial proceedings, each of which begins with a presumption of openness—a constitutional analysis and a common law analysis. Under the constitutional approach, which is based on the First Amendment of the United States Constitution and Article I, Section 11 of the Pennsylvania Constitution, the party seeking closure may rebut the presumption of openness by showing that closure serves an important governmental interest and there is no less restrictive way to serve that interest. Under the common law approach, the party seeking closure must show that his or her interest in secrecy outweighs the presumption of openness.

PA Childcare LLC v. Flood, 887 A.2d 309, 312 (Pa. Super. 2005) (quoting Zdrok v. Zdrok, 829 A.2d 697, 699 (Pa. Super. 2003)).

Under the First Amendment, any limitation on the right of access must be “carefully drawn.” Commonwealth v. Hayes, 414 A.2d 318, 323 (Pa. 1980). Specifically, the right should not be limited unless doing so protects a “compelling state obligation,” and “the threat posed to the protected interest is serious.” Id. at 322 (citation omitted); see also Philadelphia Newspapers, Inc. v. Jerome, 387 A.2d 425, 434-35 (Pa. 1978). Any limitations imposed “should effectively prevent the harms at which they are aimed” and “limit no more than is necessary to accomplish the end sought.” Jerome, 387 A.2d at 435; see also Commonwealth v. Curley, 189 A.3d 467, 473 (Pa. Super. 2018) (explaining that closure must be “narrowly tailored”); In re Seegrist, 539 A.2d 799, 803 (Pa. 1988) (“Before closing a judicial proceeding, a trial court must determine that closure will effectively protect the compelling interest endangered by openness and that the information sought to be withheld from public exposure will not be made public anyway.”).

Under the common law, “[w]here the presumption of openness attached to a public judicial document is outweighed by circumstances warranting closure of the document to public inspection, access to the document may be denied.” Commonwealth v. Martinez, 917 A.2d 856, 862 (Pa. Super. 2007) (quoting Commonwealth v. Fenstermaker, 530 A.2d 414, 420 (Pa. 1987)). It is “difficult to . . . identify all the factors to be weighed in determining whether access is appropriate.” Martinez, 917 A.2d at 862 (citation omitted). That said, “‘[i]t is the responsibility of the trial court to determine, in the exercise of its informed discretion, whether the common law right of access will outweigh countervailing factors.’” Id. (quoting P.G. Publ’g Co. v. Commonwealth, 566 A.2d 857, 860 (Pa. Super. 1989), aff’d 614 A.2d 1106 (Pa. 1992)); see also A.A. v. Glicken, 237 A.3d 1165, 1170 (Pa. Super. 2020) (stating that a party seeking to seal a judicial record must show “good cause,” which is found where “closure is ‘necessary to prevent a clearly defined and serious injury to the party seeking it’” (citation omitted)).

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C. Procedural prerequisites to closure

Before closing a proceeding, a trial court must give notice to the public and give persons opposed to closure (for example, the press) an opportunity to be heard. See Capital Cities Media, Inc. v. Toole, 483 A.2d 1339, 1344 (Pa. 1984) (“The media’s right of expression must necessarily include the right to be heard when that interest is adversely affected.”); Commonwealth v. Buehl, 462 A.2d 1316, 1321 (Pa. Super. 1983) (“[T]he public . . . must be given notice and an opportunity to be heard before a pretrial proceeding is closed.”).

In Buehl, the Superior Court did not dictate what kind of notice is required, leaving the issue up to the lower courts. See id. at 1321 n.2. But the Court suggested that individual notice to the press was not required. Instead, docketing notice in advance of any hearing or decision on a closure request is “sufficient.” Id. at 1321 (citing United States v. Criden, 675 F.2d 550, 558-59 (3d Cir. 1982)).

The opportunity for a representative of the press to be heard must be “reasonable.” Id. at 1322. This requires the trial court, at a minimum, to allow the public and press to appear and argue against the motion for closure. See id. The trial court “must hold a hearing.” Commonwealth v. Upshur, 924 A.2d 642, 651 (Pa. 2007). An evidentiary hearing may be required in some circumstances. See, e.g., Ornsteen v. Bass, 50 Pa. D. & C.3d 371, 374-75 (Phila. Cty. C.C.P. 1988); see also, e.g., A.A. v. Glicken, 237 A.3d 1165, 1170 (Pa. Super. 2020) (noting that trial court held hearing, but party seeking sealing offered no witnesses or evidence and thus did not carry its burden).

In reaching its decision, the trial court should create a “record” that contains “an articulation of the factors taken in consideration” in determining whether there is a right of access and whether that right has been rebutted by countervailing interests. Commonwealth v. Fenstermaker, 530 A.2d 414, 421 (Pa. 1987); see also Upshur, 924 A.2d at 651 (“[T]he trial court . . . must . . . place on the record its reasoning and the factors relied upon in reaching its decision.”). When assessing whether closure is necessary, “the court should issue individualized, specific, particularized findings on the record that closure is essential to preserve higher values and is narrowly tailored to that interest.” Commonwealth v. Curley, 189 A.3d 467, 473 (Pa. Super. 2018) (discussing constitutional right of access). Courts are required to make “document-by-document findings” and not simply “issue[] a blanket conclusion.” Id. In addition, the trial court must articulate on the record that “‘alternatives to closure’” were considered and “‘explicitly state its reasons on the record for rejecting such alternatives.’” Buehl, 462 A.2d at 1322 (quoting Criden, 675 F.2d at 560); see also Commonwealth v. Long, 922 A.2d 892, 906 (Pa. 2007) (“[C]losure must be supported by specific findings demonstrating that there is a substantial probability that an important right will be prejudiced by publicity and that reasonable alternatives to closure cannot adequately protect the right.”).

The on-the-record articulation of reasons for closure must be done “before ordering closure.” Buehl, 462 A.2d at 1322. “Only in that way will those who oppose closure be able to respond. Given a chance to respond, they may be able to persuade the court that it is mistaken, or they may be able to suggest an alternative not thought of by the court but that when thought of, is found to be satisfactory.” Id. at 1323.

Finally, in considering whether to seal records, “upon request, the trial court must inspect the items in camera” before determining whether to restrict access to them. Upshur, 924 A.2d at 651 (citing P.G. Publ’g Co. v. Commonwealth, 614 A.2d 1106, 1110 (Pa. 1992)).

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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

The right of access is a “legally enforceable interest,” and, therefore, the media has standing to intervene and challenge a closure order. See, e.g., Hutchison v. Luddy, 581 A.2d 578, 581-82 (Pa. Super. 1990), aff’d in relevant part, rev’d in part, 594 A.2d 307 (Pa. 1991); see also, e.g., Commonwealth v. Long, 922 A.2d 892, 895 n.1 (Pa. 2007); Commonwealth v. Davis, 635 A.2d 1062, 1064 n.5 (Pa. Super. 1993) (citing Capital Cities Media, Inc. v. Toole, 483 A.2d 1339, 1344 (Pa. 1984)).

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B. Procedure for requesting access in criminal cases

Is formal intervention or mandamus necessary?

Formal intervention is necessary to assert a right of access in ongoing cases. See, e.g., Commonwealth v. Long, 922 A.2d 892, 895 n.1 (Pa. 2007) (“In Pennsylvania, a Motion to Intervene is the proper vehicle for the press to raise a right of access question.”); Commonwealth v. Davis, 635 A.2d 1062, 1064 n.5 (Pa. Super. 1993) (citing Capital Cities Media, Inc. v. Toole, 483 A.2d 1339, 1344 (Pa. 1984)); Commonwealth v. Fenstermaker, 530 A.2d 414, 416 n.1 (Pa. 1987). However, in a closed case, intervention is not required. See Milton Hershey Sch. v. Pa. Human Relations Comm’n, 226 A.3d 117, 123 (Pa. Commw. 2020) (citing In re Estate of DuPont, 2 A.3d 516, 517-18 (Pa. 2010)) (explaining that “the Supreme Court has not required intervention when the public wishes to unseal judicial records in a completed judicial proceeding”). An order denying leave to intervene is immediately appealable. See Toole, 483 A.2d at 1344. Mandamus is not necessary.

In which court and how?

A person seeking access should file a motion to intervene in the court in which the matter is being heard. See Long, 922 A.2d at 895 & n.1.

Is there a press liaison that can help with access issues?

No. The court itself makes decisions on access issues. Each county employs different people and operates its own court system. Different courts have different practices. The county’s court administrator or others in the administrator’s office might be able to provide assistance or guidance. The Office of Communications and Intergovernmental Relations of the Administrative Office of Pennsylvania Courts (“AOPC”) fields inquiries from reporters across the state as part of its duties as media liaison. See Office of Communications and Intergovernmental Relations, The Unified Judicial System of Pennsylvania, http://www.pacourts.us/judicial-administration/office-of-communications-and-intergovernmental-relations (last visited Aug. 16, 2021). In high-profile criminal trials, the AOPC has worked with local courts on issues relating to media coverage.

Is orally objecting or sending a letter to the judge acceptable?

Orally objecting at a proceeding is generally acceptable if the proceeding is in progress and the closure is happening at that time. In other circumstances, a written request for access should be made, normally through a motion. Some judges will accept a letter, depending on the nature of the relief sought. This is highly judge and court specific, however, so the best practice is to inquire with the court and chambers of the judge who is presiding over the matter.

Other tips for requesting access in the jurisdiction?

In general, records in criminal cases are accessible to the public. The Pennsylvania Supreme Court has adopted a policy governing access to case records, including criminal case records. See 204 Pa. Code § 213.81. The policy provides that “[a]ll case records shall be open to the public” with some significant exceptions for documents and information deemed confidential and thus not available to the public. Id. §§ 213.81.3.0, 7.0-10.0.

Of course, the policy’s restrictions on access cannot override the First Amendment right of access. It is therefore possible that in certain cases the withholding of documents or information pursuant to the policy may be subject to a successful First Amendment challenge.

Generally, the policy allows a request for records to be made orally, although it further provides that the records custodian is permitted to require a written request. Id. § 213.81.4.0. A request “shall identify or describe the records sought with specificity to enable the custodian to ascertain which records are being requested.” Id. Any denial of a request must be made in writing. Id. § 213.81.5.0(C).

Finally, when seeking documents, be aware of the Electronic Case Record Access Policy of the Unified Judicial System of Pennsylvania, 204 Pa. Code Subchapter C, §§ 213.71-79, which governs access to electronic case information residing in three statewide case management systems: Pennsylvania Appellate Court Case Management System, Common Pleas Criminal Court Case Management System, and Magisterial District Judge Automated System.

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C. Procedure for requesting access in civil matters

Is formal intervention or mandamus necessary?

Formal intervention is required in ongoing cases, Capital Cities Media, Inc. v. Toole, 483 A.2d 1339, 1344 (Pa. 1984), but not in closed cases, Milton Hershey Sch. v. Pa. Human Relations Comm’n, 226 A.3d 117, 123 (Pa. Commw. 2020) (citing In re Estate of DuPont, 2 A.3d 516, 517-18 (Pa. 2010)) (explaining that “the Supreme Court has not required intervention when the public wishes to unseal judicial records in a completed judicial proceeding”). Mandamus is not required.

In which court and how?

In civil matters, a person seeking access to records or proceedings should file a motion to intervene in the court in which the matter is being heard. Toole, 483 A.2d at 1344.

Is there a press liaison that can help with access issues?

No. The court itself makes decisions on access issues. Each county employs different people and operates its own court system. Different courts have different practices. The county prothonotary or others in court administration might be able to provide assistance or guidance. The Office of Communications and Intergovernmental Relations of the Administrative Office of Pennsylvania Courts (“AOPC”) fields inquiries from reporters across the state as part of its duties as media liaison. See Office of Communications and Intergovernmental Relations, The Unified Judicial System of Pennsylvania, http://www.pacourts.us/judicial-administration/office-of-communications-and-intergovernmental-relations (last visited Aug. 16, 2021). In high-profile criminal trials, the AOPC has worked with local courts on issues relating to media coverage.

Is orally objecting or sending a letter to the judge acceptable?

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D. Obtaining review of initial court decisions

How are access decisions reviewed (appeal or mandamus)?

“It is well settled that an order that denies a request for public access to a criminal proceeding or judicial documents constitutes a collateral order from which an immediate appeal may be taken.” Commonwealth v. Selenski, 996 A.2d 494, 495 n.2 (Pa. Super. 2010); accord, e.g., PA Childcare LLC v. Flood, 887 A.2d 309, 310 n.1 (Pa. Super. 2005) (same for civil proceeding); Kurtzman v. Hankin, 714 A.2d 450, 452 (Pa. Super. 1998) (citing R.W. v. Hampe, 626 A.2d 1218, 1220 (Pa. Super. 1993)). To satisfy the requirements of the collateral order rule, the closure order must be “‘[1] separable from and collateral to the main cause of action where [2] the right involved is too important to be denied review and [3] the question presented is such that if review is postponed until final judgment in the case, the claim will be irreparably lost.’” Shearer v. Hafer, 177 A.3d 850, 857 (Pa. 2018) (quoting Pa. R.A.P. 313(b)). While courts will tolerate some interrelatedness “between merits issues and the question sought to be raised in the interlocutory appeal,” the collateral order doctrine will apply only where the issue raised on appeal is “conceptually distinct from the merits of plaintiff’s claim.” Pridgen v. Parker Hannifin Corp., 905 A.2d 422, 433 (Pa. 2006) (citation and internal quotation omitted); see A.A. v. Glicken, 237 A.3d 1165, 1169 (Pa. Super. 2020) (holding that request to seal a petition to approve a minor’s settlement agreement in a medical malpractice action was a collateral order subject to interlocutory review).

Two decades ago, the Superior Court applied an admittedly “narrow” interpretation of the collateral order rule and held that an order denying access was not immediately appealable under the unique facts presented. See Commonwealth v. Sartin, 708 A.2d 121, 122 (Pa. Super. 1998). In that case, a newspaper sought to unseal a document that was partially sealed to hide the names of people “involved in matters before the grand jury and the disciplinary board” for attorneys. Id. at 124. A two-judge majority of the court held, over a dissent, that the press’s right to access that information would not “be irreparably lost if review is postponed until final disposition of the underlying case,” as the sealing was viewed as “temporar[y].” Id. at 123; but see id. at 124 (Ford Elliott, J., dissenting) (recognizing that “the press, which seeks to publish news, will be irreparably harmed if review of this order awaits disposition of the unrelated underlying criminal trial”). The holding in Sartin appears to be an outlier that no longer reflects the state of the law, as numerous cases have subsequently permitted the press to immediately appeal decisions denying access to records and proceedings.

Procedure and timing of review?

The procedure and timing of review is the same as that for any other court decision. It is, however, suggested that the expedited procedure outlined below is followed when appealing an access decision. See Capital Cities Media, Inc. v. Toole, 483 A.2d 1339, 1344 (Pa. 1984).

Is there a procedure for expedited review?

If a trial court enters an order closing a proceeding, the party seeking access, as an intervenor, should request the trial court to stay the proceeding. See Commonwealth v. Dorler, 588 A.2d 525, 527 (Pa. Super. 1991); Pa. R.A.P. 1732(a); see also Toole, 483 A.2d at 1344 (“In Pennsylvania there is a procedure for obtaining expedited review which affords complete relief where an alleged abridgment of the rights of the media is at issue.”). If the trial court denies the request to stay the proceeding, the intervenor can seek an emergency appeal of the refusal to grant temporary relief in the Superior Court, see Pa. R. App. P. 1732(b), or appeal directly to the Pennsylvania Supreme Court under its “King’s Bench” jurisdiction to have the closure order reviewed, see 42 Pa. Cons. Stat. § 726 (providing plenary jurisdiction to Supreme Court to resolve “an issue of immediate public importance”).

If the trial court does not delay the proceeding to allow the intervenor the opportunity to make an emergency appeal to the Superior Court, and the intervenor fails to properly seek expedited review of the trial court’s decision, the issue of closure could become moot. See Dorler, 588 A.2d at 526-28 (ruling that request for access to suppression hearing was moot because “[t]he precise relief appellants seek instantly, i.e., overturning the closure order, cannot be granted at this point” because “[t]he closed suppression hearing has been conducted, the trial is now complete, and the effect of the closure order cannot now be undone”). But, the intervenor should continue to seek access to transcripts of the proceeding if they remain sealed.

Standard of review?

“The threshold consideration of whether there exists a common law or constitutional right of public access to a judicial proceeding raises a pure question of law. Our standard of review, therefore, is de novo, and our scope of review is plenary.” Selenski, 996 A.2d at 496; accord Commonwealth v. Upshur, 924 A.2d 642, 647 (Pa. 2007).

The “trial court’s decision regarding access to a particular item,” however, “will be reviewed for abuse of discretion.” Upshur, 924 A.2d at 647. A trial court commits an abuse of discretion where it errs as a matter of law or its decision is “the result of partiality, prejudice, bias, or ill-will.” Kurtzman, 714 A.2d at 453.

Mootness?

The appeal of an order closing records is not mooted by the completion of the underlying action. See Kurtzman, 714 A.2d at 452 (citing Commonwealth v. Buehl, 462 A.2d 1316, 1319 (Pa. Super. 1983)). Similarly, a third party’s disclosure of a document to the press will not necessarily moot a motion made by a news organization to obtain the document from an official source. See In re 2014 Allegheny Cty. Investigating Grand Jury, 173 A.3d 653, 656 (Pa. 2017). In such cases, because the need to verify information is paramount in accurate reporting, the mootness question will turn on the reliability, verifiability, or completeness of the document that has already been disclosed. See id.; see also Lyft, Inc. v. Pa. Pub. Util. Comm’n, 145 A.3d 1235, 1247-48 (Pa. Commw. 2016) (Pittsburgh Post-Gazette’s motion to intervene for purposes of obtaining records in agency proceeding mooted where Commonwealth Court already affirmed agency’s holding that the records must be made publicly available).

In cases in which a court closes a proceeding, if the trial court does not delay the proceeding to allow the intervenor the opportunity to make an emergency appeal to the Superior Court, the intervenor’s failure to properly seek expedited review of the trial court’s decision might render the access challenge moot. See Dorler, 588 A.2d at 526-28. But, the intervenor should continue to seek access to transcripts of the proceeding if they remain sealed.

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III. Access to criminal proceedings

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A. In general

The public’s right of access to criminal proceedings is embodied in both the United States Constitution and the Pennsylvania Constitution. See U.S. Const. amend. I; Pa. Const. art. I., §11 (“All courts shall be open.”); Commonwealth v. Upshur, 924 A.2d 642, 647 n.5 (Pa. 2007) (“[T]his Court has recognized a presumption of openness stemming from Article I, Sections 9 and 11 of our State Constitution, which provide that an accused has the right to a ‘speedy, public trial’ and that ‘all courts shall be open.’”); Commonwealth v. Curley, 189 A.3d 467, 472 (Pa. Super. 2018) (“‘It is well settled that the First Amendment to the United States Constitution, and Article I, Sections 7 and 11 of the Pennsylvania Constitution secure a general right of public access to criminal proceedings, as well as to judicial records’” (quoting Commonwealth v. Selenski, 996 A.2d 494, 496-97 (Pa. Super. 2010)).

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B. Pretrial proceedings

The public and press have a general right to access all parts of a criminal proceeding, including pretrial proceedings. Commonwealth v. Upshur, 924 A.2d 642, 649 n.6 (Pa. 2007).

Search warrant proceedings: The Pennsylvania Rules of Criminal Procedure provide that the process for obtaining search warrants is closed to the public and is conducted ex parte. See Pa. R. Crim. P. 209-12. The Rules make clear that “[t]he issuing authority shall not make any search warrants and any affidavit(s) of probable cause available for public inspection or dissemination until the warrant has been executed.” Pa. R. Crim. P. 212(a). The Rules further provide that “[u]nexecuted warrants and the associated affidavits of probable cause are not public records and upon return to the issuing authority the unexecuted warrants and affidavit(s) shall be destroyed by the issuing authority.” Id. at 212(b). Once a search warrant is executed, the Rules set forth a procedure whereby the government can seek to seal the affidavit supporting the search warrant for “good cause.” Pa. R. Crim. P. 211.

The Pennsylvania Supreme Court has instructed that “a search warrant is a public judicial document.” PG Publ’g Co. v. Commonwealth, 614 A.2d 1106, 1108 (Pa. 1992). Yet, “[t]he ex parte application for the issuance of a search warrant and the issuing authority’s consideration of the application are not subject to public scrutiny.” Id. And, while the Court noted in a case involving access to search warrant documents that “[t]here is no historical tradition of public access to search warrant proceedings,” it acknowledged that search warrant applications are filed with district justices and that those documents “upon which the district justice bases a decision to issue a search warrant are also judicial in character, for the decision to issue a search warrant is a judicial decision.” Id. Once a search warrant has been executed, the “need for secrecy will ordinarily expire.” Id. Nevertheless, search warrants issued in connection with grand jury proceedings are not considered public judicial documents while the grand jury’s investigation is ongoing. See In re 2014 Allegheny Cty. Investigating Grand Jury, 223 A.3d 214, 218 (Pa. 2019).

Preliminary hearings: The preliminary hearing is an integral part of the criminal process and, thus, is subject to the presumption of openness. Before closing a preliminary hearing, the trial judge must consider the public’s right of access and alternative means of protecting any rights asserted by the defendant, and the court must articulate the reasons for closure and alternatives on the record. See In re Daily Item, 456 A.2d. 580, 582 (Pa. Super. 1983); see also Commonwealth v. Murray, 502 A.2d 624, 626, 629 n.5 (Pa. Super. 1985).

Suppression: The Pennsylvania Supreme Court has held that access to pretrial suppression hearings is governed by the same standards as access to pretrial proceedings in general. Philadelphia Newspapers, Inc. v. Jerome, 387 A.2d 425, 434 (Pa. 1978); see also Commonwealth v. Hayes, 414 A.2d 318, 324 (Pa. 1980) (ruling that closure was improper because of the availability of a less restrictive alternative (i.e., sequestration of the jury)); Commonwealth v. Upshur (Appeal of WPXI, Inc.), 924 A.2d 642, 652 (2007) (pre-trial proceedings, including suppression hearings, are subject to the presumption of openness).

Depositions: There are no criminal cases reported in Pennsylvania that have dealt specifically with deposition proceedings. However, the Pennsylvania Superior Court has held that in civil proceedings “access rights to litigation are at their nadir” during the discovery phase. Stenger v. Lehigh Valley Hosp. Ctr., 554 A.2d 954, 958 (Pa. Super. 1989) (citing Seattle Times Co. v. Rhinehart, 467 U.S. 20, 33 (1984)). As a result, “there is no presumptive right to discovery material” in civil cases. Kurtzman v. Hankin, 714 A.2d 450, 452-53 (Pa. Super. 1998). Because depositions are performed during the discovery phase of litigation, it is likely that the presumptive right of access does not attach.

Preservation of Testimony Proceedings: Proceedings under Pennsylvania Rule of Criminal Procedure 500, which are held for the purposes of preserving the testimony of a witness in anticipation of a criminal trial, are not subject to a First Amendment right of access. See Commonwealth v. Selenski, 996 A.2d 494, 499 (Pa. Super. 2010) (holding that the right of access does not apply because such proceedings are akin to discovery depositions).

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C. Criminal trials

The First Amendment and the Pennsylvania Constitution grant the public and the press a presumptive right of access to criminal trials. See Commonwealth v. Fenstermaker, 530 A.2d 414, 417 (Pa. 1987) (“Criminal trials in the United States have, by historical tradition, and under the First Amendment, been deemed presumptively open to public scrutiny.”).

General witness testimony, testimony of minor witnesses, opening and closing statements: In Commonwealth v. Contakos, 453 A.2d 578, 582 (Pa. 1982) (plurality opinion), the Pennsylvania Supreme Court held that the trial court’s closure of a witness’s testimony, based on safety concerns, to members of the public, while allowing some members of the press to attend, violated the Pennsylvania Constitution: “The public and representatives of the press alike enjoy the constitutional right in Pennsylvania to attend trials. Neither may be excluded because the other is present.” Id. The court did not reach whether the closure violated the First Amendment.

But, Pennsylvania courts have held that witness intimidation, if factually supported, can be the basis for closure: “In appropriate cases, full or partial closure of criminal proceedings may properly be granted in response to witness intimidation. . . . However, a bald assertion of alleged intimidation does not justify the kind of encroachment on a defendant’s Sixth Amendment right to a public trial which clearing the courtroom for witness’ testimony entails.” Commonwealth v. Penn, 562 A.2d 833, 837-38 (Pa. Super. 1989) (holding the lower court abused its discretion by failing to examine a witness who alleged intimidation); see also Rogers, 2020 Pa. Super. Unpub. LEXIS 2374 at *36 (holding that the court must examine the witness directly, and hearsay evidence from a police officer that the witness was intimidated was not “sufficiently reliable information” that could serve as the basis for court closure). The trial court must make the prerequisite factual “findings” and consider less restrictive “alternatives.” Id.; see also Commonwealth v. Wright, 388 A.2d 1084, 1086 (Pa. Super. 1978) (“Among the circumstances which justify the court in closing the courtroom to spectators are threats of violence to witnesses . . . .”); Commonwealth v. Kamana, 2019 Pa. Super. Unpub. LEXIS 2243, at *11 (Pa. Super. June 7, 2019) (holding that the lower court did not abuse its discretion by clearing the courtroom where the witnesses testified on the record that they “were afraid for their safety,” and the court allowed the criminal defendant to choose a “family member to remain present, to observe the proceedings”).

Older Pennsylvania cases held that “[w]here a rape victim testifies to facts which could prove embarrassing or painful to her, a trial court has authority to exclude spectators from the trial temporarily.” Commonwealth v. Smith, 421 A.2d 693, 694 (Pa. Super. 1980) (citing Commonwealth v. Stevens, 352 A.2d 509 (Pa. Super. 1975)); see also Wright, 388 A.2d at 1086 (“Among the circumstances which justify the court in closing the courtroom to spectators are . . . the embarrassment and discomfiture to victims of crimes which require the explication of lurid details.”). Under more recent U.S. Supreme Court precedent, however, courts may not fashion per se rules requiring closure whenever there is testimony from a sexual assault victim. See Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 606-07 (1982) (invalidating on First Amendment grounds a statute mandating courtroom closure during all testimony of minor sex-crime victims). Instead, the decision of whether to close a courtroom during such testimony must be made on a case-by-case basis. See id. at 609.

Jury ‘field trips’: Pa. R. Crim. P. 643 allows the trial court, in its discretion, to order a jury view of a crime scene. The Pennsylvania Superior Court has held that the site of a jury view constitutes part of the “courtroom.” See Commonwealth v. Davis, 635 A.2d 1062, 1065 (Pa. Super. 1993). In Davis, the Superior Court held that a trial court’s order, pursuant to a local rule, prohibiting the media from photographing or videotaping a jury view of the crime scene was a permissible “time, place and manner restriction” and did not violate the First Amendment inasmuch as the press and public were fully able to witness the jury view.

In camera proceedings: The Pennsylvania Supreme Court has noted that “transcripts of bench conferences held in camera” are not considered public judicial documents subject to a presumption of openness. Commonwealth v. Upshur, 924 A.2d 642, 648 (Pa. 2007). Under this rationale, it is likely that the court would find that in camera proceedings themselves are not subject to a presumption of openness. However, the right of access limits a court’s ability to hold in camera proceedings in the first place: Courts can only hold proceedings in camera where there are circumstances sufficient to overcome the right of access, i.e., there must be a compelling government interest in closure and no less restrictive means available to achieve that interest. See In re Affidavit for Search Warrant for 4011 Wilson Ave., Bethlehem Pa., 42 Pa. D. & C. 3d 467, 469 (Northampton Cty. C.C.P. Mar. 18, 1986) (in camera review appropriate only where there are “unusual circumstances” that present a compelling government interest in closure) (citing Crawford v. Dominic, 469 F. Supp. 260, 264 (E.D. Pa. 1979)).

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D. Post-trial proceedings

While Pennsylvania courts have not ruled on whether there is a right of access to post-trial proceedings, the Pennsylvania Superior Court held that there is a right of access to post-trial records: “Given the open nature of criminal trials, and sentencing proceedings in particular, we find that letters submitted to a sentencing court by defense counsel at the time of sentencing, which the sentencing court explicitly reviews in preparation for sentencing, are public judicial documents regardless of whether the sentencing court formally dockets the letters.” Commonwealth v. Martinez, 917 A.2d 856, 861-62 (Pa. Super. 2007); see also id. at 861 n.9 (acknowledging that the federal courts hold “that the public, and consequently the press, have a qualified First Amendment right of access to sentencing proceedings”); Commonwealth v. Dominick, 40 Pa. D. & C. 5th 347, 350-52 (Lackawanna Cty. C.C.P. Sept. 3, 2014) (citing Martinez for the proposition that letters to a sentencing court are public judicial documents even if not docketed.).

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E. Appellate proceedings

The right to access appellate court proceedings and records is widely recognized. See, e.g., United States v. Moussaoui, 65 F. App’x 881, 890 (4th Cir. 2003) (“[t]here can be no question that the First Amendment guarantees a right of access by the public to oral arguments in the appellate proceedings . . . . Such hearings have historically been open to the public, and the very considerations that counsel in favor of openness of criminal trial support a similar degree of openness in appellate proceedings.”). In Milton Hershey School v. Pennsylvania Human Relations Commission, 226 A.3d 117, 123 (Pa. Commw. 2020), the Commonwealth Court considered a challenge to its sealing of an appeal from an administrative proceeding. In response to that challenge, the court ordered the docket, court orders, petition for review, and parties’ briefs in the appeal to be unsealed, with limited redactions. Nevertheless, the court held that the record on appeal should remain sealed because (1) the jurisdictional issue considered on appeal involved “a very limited” and “discrete” issue; (2) the agency record was compiled and filed solely for compliance with the court’s rules for agency appeals; (3) the administrative agency previously had ordered the material in the record to be sealed in light of privacy, privilege, and confidentiality issues involving the minor who was a party to the proceeding and other third parties; and (4) “while the matter is still pending before that agency,” the agency’s decision to seal the record reflected “a compelling governmental interest.” Id. at 130-31.

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IV. Access to criminal court records

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A. In general

The Pennsylvania Supreme Court has recognized the existence of a common law and First Amendment right to access judicial records. See, e.g., Commonwealth v. Upshur, 924 A.2d 642, 647-48 (Pa. 2007); Commonwealth v. Curley, 189 A.3d 467, (Pa. Super. 2018); Commonwealth v. Selenski, 996 A.2d 494, 496-97 (Pa. Super. 2010); see also Commonwealth v. Fenstermaker, 530 A.2d 414, 419 (Pa. 1987). This right of access “provides an important check on the criminal justice system, ensuring not only the fair execution of justice, but also increasing public confidence and understanding.” Upshur, 924 A.2d at 647.

A public judicial record or document includes, but is not limited to, “any item that is filed with the court as part of the permanent record of a case and relied on in the course of judicial decision-making.” Upshur, 924 A.2d at 648. “Some items will fit squarely within the category of public judicial records and documents while others will just as clearly be excluded. For example, transcripts of bench conferences held in camera and notes maintained by the prosecutor and defense counsel during trial are not considered public judicial documents.” Id.

The Supreme Court has explained that “the status of materials as ‘part of the record’ or ‘filed with the court,’ though relevant, is not necessarily dispositive when deciding whether an item is a public judicial record or document.” Id. at 650. Rather, the Supreme Court has noted that Pennsylvania courts will give “weight to the character of the materials sought in terms of whether they are the sort upon which a judge can base a decision.” Compare id. at 648 (ruling that trial court did not abuse its discretion when it permitted a television station access to an audiotape played at a preliminary hearing, finding that the tape formed the basis of the judge’s decision as to whether the charges will be held for trial and was “clearly the type of material upon which a judicial decision is based”), with Robinson v. Montgomery Cty. Court Reporter, 2009 Pa. Commw. Unpub. LEXIS 467, at *11 (Oct. 1, 2009) (no right of access to audio recordings of homicide trial because recordings were merely created to aid court reporter in composition of official transcript, and were “neither filed with the trial court as part of the official record of a case, nor [ ] relied upon by the court in the course of judicial decision-making.”). “[T]he level of the reliance placed on a document in the judicial decision-making process is a key factor in making th[e] determination” whether a document is a judicial record. Commonwealth v. Martinez, 917 A.2d 856, 860 (Pa. Super. 2007); see, e.g., Milton Hershey Sch. v. Pa. Human Relations Comm’n, 226 A.3d 117, 132 (Pa. Commw. 2020) (holding that appellate briefs are judicial records because “they were filed with the Court, and whether the Court found all the arguments persuasive or not, the Court read the briefs and was informed by their presentation”).

The Pennsylvania Superior Court, however, has held that when a pretrial document is submitted to a judge, but is not docketed, “formally filed with the court, or required by any rule of criminal procedure,” the record is not considered a “‘public judicial document’ subject to the right of First Amendment or common law access.” Commw. v. Curley, 189 A.3d 467, 479 (Pa. Super. 2018)(no right to access letters sent to judge with proffers of witness testimony in connection with issue of attorney-client relationship, when records were never docketed or filed and witnesses did not testify).

The right to access judicial records “has been broadly construed, though the right has not been held to be absolute.” Fenstermaker, 530 A.2d at 420 (citing Nixon v. Warner Commc’ns, Inc., 435 U.S. 589, 597-99 (1978)). Access to the document or record may be denied if “the presumption of openness attached to a public judicial document is outweighed by circumstances warranting closure of the document to public inspection.” Id. When the constitutional right is implicated, a record can be sealed only for a “compelling interest.” Curley, 189 A.3d at .

The Pennsylvania legislature amended its laws pertaining to criminal history record information, effective June 28, 2019, greatly restricting public access to certain criminal records. Under Pennsylvania’s Clean Slate law, certain “criminal history record information” is barred from disclosure. The statute defines “criminal history record information” as “[i]nformation collected by criminal justice agencies concerning individuals, and arising from the initiation of a criminal proceeding, consisting of identifiable descriptions, dates and notations of arrests, indictments, informations or other formal criminal charges and any dispositions arising therefrom.” 18 Pa. Cons. Stat. § 9102.

Under the Clean Slate law, the following records are automatically subject to limited access, and thus not publicly accessible:

“criminal history record information pertaining to a conviction of a misdemeanor of the second degree, a misdemeanor of the third degree or a misdemeanor offense punishable by imprisonment of no more than two years if a person has been free for 10 years from conviction for any offense punishable by imprisonment of one or more years and if payment of all court-ordered restitution has occurred”;
“[c]riminal history record information pertaining to charges which resulted in a final disposition other than a conviction”;
“[c]riminal history record information pertaining to a conviction for a summary offense when 10 years have elapsed since entry of the judgment of conviction and payment of all court-ordered restitution has occurred”; and
“[c]riminal history record information pertaining to a conviction for which a pardon was granted.”

18 Pa. Cons. Stat. § 9122.2(a)(1)-(4). These categories of information are subject to certain exceptions enumerated in section 9122.3.

Under the Clean Slate Law, other criminal records are subject to limited access. These records pertain to offenses “punishable by one or more years in prison,” where the person has been “free from conviction for a period of 10 years,” id. § 9122.1(a), and are subject to certain enumerated exceptions, id. § 9122.1(b).

Additionally, under the Clean Slate Law, state and local police are required not to disseminate “notations of arrests, indictments or other information relating to the initiation of criminal proceedings,” where

the arrest was more than three years ago, the record does not indicate a disposition, and “nothing in the record indicates that proceedings seeking conviction remain pending”; or
the information is subject to limited access pursuant to section 9122.1 or 9122.2.

Id. § 9121(b); see also id. § 9121(b.1), (b.2) (listing exceptions).

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B. Arrest records

Arrest warrants and their supporting affidavits of probable cause are “public judicial documents” and thus presumed open to the public. See Commonwealth v. Fenstermaker, 530 A.2d 414, 418-419 (Pa. 1987) (arrest warrants and affidavits).

Fenstermaker did not address whether an arrest warrant should be open to the public prior to the arrest. See Fenstermaker, 530 A.2d at 416. But the denial of access to a search warrant may be justified until after an arrest if publication of the warrant could: (1) cause the suspect to flee; (2) deprive the police of a meaningful opportunity to interrogate a suspect; (3) deprive police of the opportunity to test the credibility of third parties who come forward with information; or (4) endanger eyewitnesses. See In re Search Warrant, 20 Media L. Rep. 1910, 1912 (Northampton Cty. C.C.P. Oct. 23, 1992). Following the arrest, the document may be opened without jeopardizing the investigation. See id.

The presumption of openness that attaches to arrest warrants and supporting applications and affidavits is not absolute. Accordingly, the Pennsylvania courts have adopted a balancing test under which access to these documents may be denied if warranted by the facts and circumstances of a particular case. There are several interests that courts have suggested may justify denial:

(1) A defendant’s fair trial rights may be affected, see PG Publ’g Co v. Commonwealth, 614 A.2d 1106, 1108 (Pa. 1992); Fenstermaker, 530 A.2d at 420 (stating that pretrial publicity caused by disclosure of affidavits may interfere with defendant’s Sixth Amendment rights);

(2) Ensuring the safety of informants, see Fenstermaker, 530 A.2d at 420; see also PG Publ’g, 614 A.2d at 1108; and

(3) Protecting the integrity of an ongoing criminal investigation, see Fenstermaker, 530 A.2d at 420; see also PG Publ’g, 614 A.2d at 1109-10.

Pennsylvania’s Clean Slate law also constrains public access to arrest records. See 18 Pa. Cons. Stat. § 9121(b); see also id. § 9121(b.1), (b.2) (listing exceptions). This law is discussed in detail in the preceding section, IV.A.

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C. Dockets

There is a right to access case dockets under both the First Amendment and the common law. See Commonwealth v. Curley, 189 A.3d, at *473 (Pa. Super. 2018). Before sealing any portion of a docket, the court must make “individualized, specific, particularized findings” with respect to each docket entry. Id. at *10-11 (trial court erred in failing to make such findings when sealing docket entries).

Dockets for matters pending in the Supreme Court, Superior Court, and Commonwealth Court, as well as criminal case dockets for the courts of common pleas and magisterial district courts, may be accessed online at the web portal for The Unified Judicial System of Pennsylvania:

https://ujsportal.pacourts.us/CaseSearch (last visited July 15, 2021).

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

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The Pennsylvania Rules of Criminal Procedure provide that the process for obtaining search warrants is closed to the public and is conducted ex parte. See Pa. R. Crim. P. 209-12. The Rules make clear that “[t]he issuing authority shall not make any search warrants and any affidavit(s) of probable cause available for public inspection or dissemination until the warrant has been executed.” Pa. R. Crim. P. 212(a). The Rules further provide that “[u]nexecuted warrants and the associated affidavits of probable cause are not public records and upon return to the issuing authority the unexecuted warrants and affidavit(s) shall be destroyed by the issuing authority.” Id. 212(b). Once a search warrant is executed, the Rules set forth a procedure whereby the government can seek to seal the affidavit supporting the search warrant for “good cause.” Pa. R. Crim. P. 211. The comments to the Rules explain that good cause is shown where disclosure “would defeat an ongoing investigation or endanger an undercover agent or informant.” Id. 211 cmt. In addition, once a defendant is charged, the Rules provide that search warrant affidavits can remain sealed upon a showing of good cause (and even prevent the defendant from accessing the affidavit), and the comments to the Rules note that in making that assessment, courts should “consider any pertinent information about the case, such as whether any items were seized, whether there were any arrests, and whether any motions were filed. The justice or judge should also consider the defendant’s need to have the affidavit(s) to prepare his or her case, especially the right to file motions, including a motion to suppress or a motion for return of property” Id.

The Pennsylvania Supreme Court has instructed that “a search warrant is a public judicial document.” PG Publ’g Co. v. Commonwealth, 614 A.2d 1106, 1108 (Pa. 1992). Yet, “[t]he ex parte application for the issuance of a search warrant and the issuing authority’s consideration of the application are not subject to public scrutiny.” Id. And, while the court noted in a case involving access to search warrant documents that “[t]here is no historical tradition of public access to search warrant proceedings,” it acknowledged that search warrant applications are filed with district justices and that those documents “upon which the district justice bases a decision to issue a search warrant are also judicial in character, for the decision to issue a search warrant is a judicial decision.” Id. Once a search warrant has been executed, the “need for secrecy will ordinarily expire.” Id. In determining whether these documents should be sealed, a trial court should, as a practical matter, conduct an “in-camera review” of the documents. Id. at 1110. In addition to the factors discussed in the Rules, older cases suggest that a court might deny access to protect a defendant’s fair trial rights. See id. at 1108; Commonwealth v. Fenstermaker, 530 A.2d 414, 420 (Pa. 1987) (stating that pretrial publicity caused by disclosure of affidavits may interfere with defendant’s Sixth Amendment rights).

In contrast, the Pennsylvania Supreme Court has held that there is no First Amendment or common law right to access search warrants issued in connection with an ongoing grand jury investigation. See In re 2014 Allegheny Cty. Investigating Grand Jury, 223 A.3d 214, 218 (Pa. 2019). The court there evaluated a television station’s argument that it had a right to access search warrants issued in a grand jury proceeding. Id. The court held that “there is no common law right of access to search warrants and related materials issued in connection with a grand jury investigation, at least insofar as the investigation is ongoing.” Id. at 229. The court recognized that though grand jury-related search warrants share many of the hallmarks of non-grand jury search warrants, which are public judicial documents, “unlike ordinary search warrants, grand jury-related search warrants and related materials routinely are maintained by the supervising judge and are not publicly filed with the clerk of courts.” Id. The court noted that its conclusion was informed by the “special nature of grand jury proceedings.” Id. at 229-30. As to the First Amendment right, the court referred to the “experience and logic” test, and held that there is “no history of access to grand jury proceedings or materials,” including the sought-after search warrants and related materials. Id. at 233. It additionally held that “[l]ogic also dictates there should be no First Amendment right to access grand jury-related search warrant materials during an ongoing investigation.” Id. at 234. The court left open the possibility that grand jury records would be public judicial records when the investigation has completed: “We stress, however, that our holding is limited to the narrow circumstances presented — namely, a request for access to search warrant materials made while a grand jury's investigation is ongoing.” Id. (emphasis in original).

Returns, records related to warrants: Pa. R. Crim. P. 210 provides that “[t]he judicial officer to whom the warrant was returned shall file the search warrant, all supporting affidavits, and the inventory with the clerk of the court of common pleas of the judicial district in which the property was seized.” Pennsylvania courts have held that search warrants and accompanying documents that are filed with the clerk are available to the public, except as required by Pa. R. Crim. P. 211 (providing that search warrant affidavit may be sealed upon showing of good cause). See Commonwealth v. Ortiz, 11 Media L. Rep. 2316, 2316-17 (Lehigh Cty. C.C.P. July 12, 1985).

Wiretaps: A Pennsylvania statute provides that wiretap records – specifically, applications, final reports, and orders – “may be disclosed only upon a showing of good cause . . . .” 18 Pa. Cons. Stat. § 5715. There are no reported decisions analyzing what a journalist must demonstrate to establish “good cause” under the statute. In a non-media case, the Pennsylvania Superior Court held that a requestor, who sought wiretap records in order to support a criminal defendant’s post-conviction relief application, failed to establish good cause for unsealing those records because she did not explain “her relationship to [the defendant] or stake in his post-conviction proceedings.” Kessler v. Pub. Documents Pen Register & Wire Taps, 180 A.3d 406, 410 (Pa. Super. 2018).

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E. Discovery materials

While Pennsylvania courts have not ruled whether there is right of access to discovery materials in criminal cases, the Pennsylvania Superior Court, in a civil case, has stated that “[a]ccess rights to litigation are at their nadir” during the discovery phase. R.W. v. Hampe, 626 A.2d 1218, 1224 (Pa. Super. 1993) (citation omitted). Proceedings under Pennsylvania Rule of Criminal Procedure 500, which are held for the purposes of preserving the testimony of a witness in anticipation of a criminal trial, are not subject to a First Amendment right of access. Commonwealth v. Selenski, 996 A.2d 494, 499 (Pa. Super. 2010) (holding that there is no right of access to testimony preservation hearing under Pennsylvania Rule of Criminal Procedure 500, and likening such proceedings to discovery depositions.).

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F. Pretrial motions and records

The Pennsylvania Supreme Court has recognized the existence of a common law and constitutional right to access judicial proceedings and records, and these rights extend to pretrial proceedings and records. Commonwealth v. Upshur, 924 A.2d 642, 647-48 (Pa. 2007); Commonwealth v. Selenski, 996 A.2d 494, 496-97 (Pa. Super. 2010). The constitutional right is recognized under both the First Amendment, see Commonwealth v. Berrigan, 501 A.2d 226, 232 (Pa. 1985), and the Pennsylvania Constitution, see Commonwealth v. Hayes, 414 A.2d 318, 322 (Pa. 1980); see also Upshur, 924 A.2d at 648 (ruling that trial court did not abuse its discretion when it permitted a television station access to an audiotape played at a preliminary hearing).

The Pennsylvania Superior Court has held that when a pretrial document is submitted to a judge, but is not docketed, “formally filed with the court, or required by any rule of criminal procedure,” the record is not considered a “‘public judicial document’ subject to the right of First Amendment or common law access.” See Commonwealth v. Curley, 189 A.3d 467, 479 (Pa. Super. 2018) (no right to access letters sent to judge with proffers of witness testimony in connection with issue of attorney-client relationship, when records were never docketed or filed and witnesses did not testify). Similarly, the Superior Court has held that a prosecutor’s pretrial brief arguing that the death penalty applied to a 15-year old was not subject to the right of access where it was presented only to the judge and defense counsel, was never docketed or “formally filed with the court,” and was not “required by any rule of criminal procedure.” Commonwealth v. Crawford, 789 A.2d 266, 271 (Pa. Super. 2001). The court noted that while “the trial court may have reviewed it in determining whether Crawford could be sentenced to death, ultimately the reasoning for any decision is contained in the trial court’s decision.” Id.

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G. Trial records

The public has a right to access trial records, which include evidence admitted at trial. Commonwealth v. Upshur, 924 A.2d 642, 652-53 (Pa. 2007). Indeed, the Supreme Court has held that the public also has a right of access to evidence presented at a preliminary hearing. See id. at 652-53.

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H. Post-trial records

The Superior Court of Pennsylvania has recognized that the federal courts hold “that the public, and consequently the press, have a qualified First Amendment right of access to sentencing proceedings,” and Pennsylvania follows this holding. Commonwealth v. Martinez, 917 A.2d 856, 861 n.9 (Pa. Super. 2007). Thus, the court held that “[g]iven the open nature of criminal trials, and sentencing proceedings in particular, we find that letters submitted to a sentencing court by defense counsel at the time of sentencing, which the sentencing court explicitly reviews in preparation for sentencing, are public judicial documents regardless of whether the sentencing court formally dockets the letters.” Id. at 861-62; see also Commonwealth v. Dominick, 40 Pa. D. & C. 5th 347, 350-52 (Lackawanna Cty. C.C.P. Sept. 3, 2014) (citing Martinez for the proposition that letters to a sentencing court are public judicial documents even if not docketed).

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I. Appellate records

No Pennsylvania court has addressed this issue in a criminal case, but it is well-established that the public and press have a constitutional right to appellate court proceedings. See, e.g., United States v. Moussaoui, 65 F. App’x 881, 890 (4th Cir. 2003) (“[t]here can be no question that the First Amendment guarantees a right of access by the public to oral arguments in the appellate proceedings . . . . Such hearings have historically been open to the public, and the very considerations that counsel in favor of openness of criminal trial support a similar degree of openness in appellate proceedings.”).

In Milton Hershey School v. Pennsylvania Human Relations Commission, 226 A.3d 117, 123 (Pa. Commw. 2020), the Commonwealth Court considered a challenge to its sealing an appeal from an administrative proceeding. In response to that challenge, the court ordered the docket, court orders, petition for review, and parties’ briefs in the appeal to be unsealed, with limited redactions. Nevertheless, the court held that the record on appeal should remain sealed because (1) the jurisdictional issue considered on appeal involved “a very limited” and “discrete” issue; (2) the agency record was compiled and filed solely for compliance with the court’s rules for agency appeals; (3) the administrative agency previously had ordered the material in the record to be sealed in light of privacy, privilege, and confidentiality issues involving the minor who was a party to the proceeding and other third parties; and (4) “while the matter is still pending before that agency,” the agency’s decision to seal the record reflected “a compelling governmental interest.” Id. at 130-31.

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

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

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

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J. Other criminal court records issues

social security numbers;
driver license numbers;
state identification numbers;
minors’ names and dates of birth, except when a minor is charged as a defendant in a criminal matter;
financial institution account numbers, credit card numbers, PINS or passwords used to secure accounts;
minors’ educational records;
medical/psychological records;
children and youth services’ records;
information sealed or protected pursuant to court order; and
information to which access is otherwise restricted by federal law, state law, or state court rule.

Additionally, the policy provides that certain categories of information and documents can be accessed in-person at a court facility, but cannot be accessed remotely, including information that identifies the identity of jurors, witnesses, or victims in criminal cases.

Generally, the policy allows a request for records to be made orally, although it further provides that the records custodian is permitted to require a written request. A request “shall identify or describe the records sought with specificity to enable the custodian to ascertain which records are being requested.” Any denial of a request must be made in writing.

There is not a public right of access to most proceedings involving minors, including when a child is charged with a summary offense. See 42 Pa. Cons. Stat. § 6336(d), (e) & (g); § 6303(c).

Anyone seeking documents should be aware of the Electronic Case Record Access Policy of the Unified Judicial System of Pennsylvania, available at http://www.pacourts.us/assets/files/page-1090/file-837.pdf, which governs access to electronic case information residing in three statewide case management systems: Pennsylvania Appellate Courts Case Management System, Common Pleas Case Management System, and Magisterial District Judge System.

Section 1251 of the Pennsylvania Coroner’s Act provides that “every coroner, within (30) days after the end of each year, shall deposit all of his official records and papers for the preceding year in the office of the prothonotary for the inspection of persons interested therein.” Those records are public documents. The Pennsylvania Supreme Court has held that Section 1251 does not, however, prevent a court from sealing an autopsy report beyond the statutory term. In re Buchanan, 880 A.2d 568, 577 (Pa. 2005). The autopsy report may remain sealed if the party seeking closure shows that “the release of the report . . . poses a threat of substantially hindering or jeopardizing the ongoing investigation.” Id. at 577-78.

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V. Access to civil proceedings

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A. In general

In general, Pennsylvania courts have recognized both a constitutional and common law right of access to civil proceedings. Hutchison v. Luddy, 581 A.2d 578, 582 (Pa. Super. 1990), aff’d in relevant part, rev’d in part, 594 A.2d 307 (Pa. 1991). This right, however, is not absolute. Id. Under the First Amendment and the Pennsylvania Constitution, closure of a civil proceeding is permitted only when there is “a showing that the denial serves an important governmental interest and there is no less restrictive way to serve that governmental interest.” Id. (quoting Publicker Indus., Inc. v. Cohen, 733 F.2d 1059, 1070 (3d Cir. 1984)); accord PA Childcare LLC v. Flood, 887 A.2d 309, 312 (Pa. Super. 2005) (“only a compelling government interest justifies closure and then only by a means narrowly tailored to serve that interest” (citation omitted)).

Under the common law, a party seeking closure must show that “the interest in secrecy outweighs the presumption” of access. Id. (quoting Bank of Am. Nat’l Tr. & Sav. Ass’n v. Hotel Rittenhouse Assocs., 800 F.2d 339, 344 (3d Cir. 1986)). In deciding whether to grant a motion for closure, a court must balance the interests in favor of access against those interests in opposition to access. Id.; accord PA Childcare LLC, 887 A.2d at 313.

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B. Pre-trial proceedings

The public and press have a constitutional and common law right to access pretrial hearings and arguments. See PA Child Care LLC v. Flood, 887 A.2d 309, 312 (Pa. Super. 2005) (“Pennsylvania has a mandate for open and public judicial proceedings in both the criminal and civil settings.”).

With respect to discovery, however, the Pennsylvania Superior Court has held that in civil proceedings “access rights to litigation are at their nadir.” Stenger v. Lehigh Valley Hosp. Ctr., 554 A.2d 954, 958 (Pa. Super. 1989) (citing Seattle Times Co. v. Rhinehart, 467 U.S. 20, 33 (1984)).

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C. Trials

Pennsylvania courts have recognized both a constitutional and common law right of access to civil proceedings generally. See PA Child Care LLC v. Flood, 887 A.2d 309, 312 (Pa. Super. 2005) (“Pennsylvania has a mandate for open and public judicial proceedings both in the criminal and civil settings.”).

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D. Post-trial proceedings

While courts in Pennsylvania have not addressed the right of access to post-trial proceedings in civil cases, in the criminal context, the Pennsylvania Superior Court has held that there is a right of access to post-trial records. Commonwealth v. Martinez, 917 A.2d 856, 861 (Pa. Super. 2007). That right also attaches to post-trial proceedings in civil cases.

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E. Appellate proceedings

No Pennsylvania decisions have addressed this issue, but it is well-established that the public and press have a constitutional right to appellate court proceedings. See, e.g., United States v. Moussaoui, 65 F. App’x 881, 890 (4th Cir. 2003) (“[t]here can be no question that the First Amendment guarantees a right of access by the public to oral arguments in the appellate proceedings . . . . Such hearings have historically been open to the public, and the very considerations that counsel in favor of openness of . . . trial support a similar degree of openness in appellate proceedings.”).

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VI. Access to civil records

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A. In general

Under both the common law and the First Amendment, the right of access applies to civil proceedings and records. See, e.g., PA Child Care LLC v. Flood, 887 A.2d 309, 312 (Pa. Super. 2005) (rejecting effort to seal record in civil case and explaining that “Pennsylvania has a mandate for open and public judicial proceedings both in the criminal and civil settings.”); Milton Hershey Sch. v. Pa. Human Relations Comm’n, 226 A.3d 117, 131-32 (Pa. Commw. 2020) (granting newspaper’s request to unseal several judicial records, including orders of the court and the parties’ briefs to the court). The Pennsylvania Superior Court has held for many years that “[t]he existence of a common law right of access to judicial proceedings and inspections of judicial records is beyond dispute.” R.W. v. Hampe, 626 A.2d 1218, 1220 (Pa. Super. 1993).

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B. Dockets

There is a right of access to case dockets under both the First Amendment and the common law. See Commonwealth v. Curley, 189 A.3d 467, 472-75 (Pa. Super. 2018); see also, e.g., Milton Hershey Sch. v. Pa. Human Relations Comm’n, 226 A.3d 117, 130 (Pa. Commw. 2020) (granting newspaper’s request to unseal docket). Before sealing any portion of a docket, the court must make “individualized, specific, particularized findings” with respect to each docket entry. See Curley, 189 A.3d at 473 (trial court erred in failing to make such findings when sealing docket entries).

Effective January 6, 2018, the Pennsylvania Supreme Court approved a new policy that governs public access to case records, 204 Pa. Code § 213.81. “Case records,” as defined in the policy, include case dockets. However the policy provides that if a court posts online docket information concerning family court actions and actions governed by the Decedents, Estates and Fiduciaries Code, Adult Protective Services Act, and the Older Adult Protective Services Act, those docket entries may include only (1) a party’s name, (2) a party’s address information, (3) counsel of record’s name and address, (4) docket number, (5) entries indicating generally what actions have been taken or are scheduled in a case, (6) court orders and opinions, (7) filing date of the case, and (8) case type.

Dockets for matters pending in the Superior Court, Commonwealth Court or Supreme Court may be accessed online at the web portal for The Unified Judicial System of Pennsylvania: https://ujsportal.pacourts.us/CaseSearch (last visited June 28, 2021).

Many counties also offer electronic access to their Court of Common Pleas dockets for civil cases. Electronic case record information held on these portals is governed by the Electronic Case Record Public Access Policy of the Unified Judicial System of Pennsylvania, available at https://www.pacourts.us/public-records/public-records-policies (last visited Aug. 27, 2021).

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C. Discovery materials

Private documents collected during discovery are not judicial records, and, therefore, the common law right of access does not attach to them. R.W. v. Hampe, 626 A.2d 1218, 1224 n.8 (Pa. Super. 1993); see also Kurtzman v. Hankin, 714 A.2d 450, 452-53 (Pa. Super. 1998) (“[T]here is no presumptive right to discovery material.”); Stenger, 554 A.2d at 958 (“access rights to litigation are at their nadir” during the discovery phase). However, once those discovery materials are filed with the court or used at trial, they are subject to the presumptive right of access. Commonwealth v. Long, 922 A.2d 892, 898 (Pa. 2007).

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D. Pre-trial motions and records

Pleadings: Both the constitutional and common law rights of access extend to pleadings. See Hutchison v. Luddy, 581 A.2d 578, 582 (Pa. Super. 1990) (“The presumption that the public may inspect and copy judicial records extends to pleadings.”), aff’d in relevant part, rev’d in part, 594 A.2d 307 (Pa. 1991); Stenger v. Lehigh Valley Hosp. Ctr., 554 A.2d 954, 960 (Pa. Super. 1989) (same); PA Child Care LLC v. Flood, 887 A.2d 309, 312 (Pa. Super. 2005) (rejecting effort to seal record in civil case and explaining that “Pennsylvania has a mandate for open and public judicial proceedings both in the criminal and civil settings.”).

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E. Trial records

Evidence, even if previously sealed, is subject to a presumption of openness when it is introduced at trial. See R.W. v. Hampe, 626 A.2d 1218, 1224 (Pa. Super. 1993) (denying patient’s request that record of her psychiatric malpractice case be sealed and that she be referred to by initials alone).

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F. Settlement records

The Pennsylvania Superior Court has noted that the public and press have a presumptive right to access settlement agreements filed with the court. Stenger v. Lehigh Valley Hosp. Ctr., 554 A.2d 954, 960 (Pa. Super. 1989) (citing Bank of Am. Nat’l Tr. & Sav. Ass’n v. Hotel Rittenhouse Assocs., 800 F.2d 339, 342-43 (3d Cir. 1986)). Similarly, the Pennsylvania Superior Court has held that a plaintiff’s petition for approval of a settlement is presumptively open and should not be sealed. A.A. v. Glicken, 237 A.3d 1165, 1170 (Pa. Super. 2020) (“To rebut the presumption of openness, and to obtain closure of judicial proceedings and records, a party must demonstrate ‘good cause.’”); see also Korczakowski v. Hwan, 68 Pa. D. & C. 4th 129 (Lackawanna Cty. C.C.P. Sept. 23, 2004).

In Storms v. O’Malley, the Superior Court affirmed the trial court’s denial of a physician’s motion to seal the record in a medical malpractice case that resulted in a settlement. 779 A.2d 548, 570 (Pa. Super. 2001). The Superior Court held that the policy interest in encouraging settlements (which the physician argued could be facilitated by keeping records of settled cases confidential) was not sufficient to rebut the presumption of openness. Id.; see also A.A., 237 A.3d at 1170 (“[T]he trial court correctly observed that the chilling effect on settlements is insufficient, standing alone, to overcome the compelling public interest in open records.”).

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G. Post-trial records

There is a presumptive right of access to judicial records filed in post-trial proceedings. See, e.g., Commonwealth v. Martinez, 917 A.2d 856, 860 (Pa. Super. 2007).

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H. Appellate records

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

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

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

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

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

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I. Other civil court records issues

In general, records in civil cases are accessible to the public. The Pennsylvania Supreme Court has adopted a policy governing access to case records, including civil case records. See 204 Pa. Code § 213.81. The policy provides that “[a]ll case records shall be open to the public” with some significant exceptions for documents and information deemed confidential and thus not available to the public. Those categories include the following:

social security numbers;
driver license numbers;
state identification numbers;
minors’ names and dates of birth, except when a minor is charged as a defendant in a criminal matter;
financial institution account numbers (except if the account is the subject of the case, active, and cannot otherwise be identified except by the last four digits of the financial account), credit card numbers (same exception), PINS or passwords used to secure accounts;
minors’ educational records;
medical/psychological records;
children and youth services’ records;
information sealed or protected pursuant to court order;
information to which access is otherwise restricted by federal law, state law, or state court rule; and
case records in family court actions, except for dockets, court orders and opinions.

Anyone seeking documents should be aware of the Electronic Case Record Public Access Policy of the Unified Judicial System of Pennsylvania, available at https://www.pacourts.us/public-records/public-records-policies (last visited Aug. 27, 2021), which governs access to electronic case information residing in three statewide case management systems: Pennsylvania Appellate Courts Case Management System, Common Pleas Case Management System, and Magisterial District Judge System.

Section 1236-B of the Pennsylvania Coroner’s Act provides that “every coroner, within (30) days after the end of each year, shall deposit all of his official records and papers for the preceding year in the Office of the Prothonotary for the inspection of persons interested therein.” Those records are public documents. Interpreting the same language of the former Coroner’s Act, which was repealed and replaced by the current Act in 2018, the Pennsylvania Supreme Court held that the Act does not, however, prevent a court from sealing an autopsy report beyond the statutory term. In re Buchanan, 880 A.2d 568, 577 (Pa. 2005). The autopsy report may remain sealed if the party seeking closure shows that “the release of the report . . . poses a threat of substantially hindering or jeopardizing the ongoing investigation.” Id. at 577-78.

Divorce hearings are presumptively open but “are the type of proceedings which courts may close to protect the rights of the parties.” Katz v. Katz, 514 A.2d 1374, 1380 (Pa. Super. 1986); see also R.W. v. Hampe, 626 A.2d 1218, 1222 (Pa. Super. 1993) (“Divorce cases present one exception to the general rule of openness. The subject matter of divorce litigation serves, in many cases, ‘only to embarrass and humiliate’ the litigants.” (citation omitted)). In 2017, the Court of Common Pleas in Allegheny County granted a newspaper’s motion to unseal a divorce action involving an extra-marital affair carried out by a sitting U.S. Congressman. See Sally v. Edwards, No. FD 16-008377-004 (Allegheny Cty. C.C.P. Dec. 3, 2017).

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VII. Jury and grand jury access

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A. Access to voir dire

The First Amendment right of access extends to voir dire. See Commonwealth v. Berrigan, 501 A.2d 226, 232 (Pa. 1985) (citing Press-Enterprise Co. v. Superior Court, 464 U.S. 501 (1984)). Generally, the court must justify closure of voir dire as a “strict and inescapable necessity.” Commonwealth v. Johnson, 455 A.2d 654, 662 (Pa. Super. 1982). However, a court “may impose restrictions to maintain the integrity of the proceedings in the courtroom” so long as “the basic guarantees of fairness are preserved such as by the presence of the press and the making of a record for later review.” Berrigan, 501 A.2d at 232-234 (affirming trial court’s exclusion of members of the general public from voir dire proceedings). Thus, a court may elect to conduct voir dire in a room separate from the main courtroom as a way to “efficiently utilize judicial resources” without violating access rights, provided that the court does not explicitly prohibit any member of the public from observing the voir dire. See Commonwealth v. Harris, 703 A.2d 441, 445-46 (Pa. 1997). The trial court may not deny the public access to voir dire for fear of juror intimidation unless it specifically finds that the presence of the public would result in intimidation. See Johnson, 455 A.2d at 662-63. However, even if the court determines that the release of the names of potential jurors is likely to result in outside intimidation, the most effective way to protect them is through sequestration. See Commonwealth v. Genovese, 487 A.2d 364, 368 (Pa. Super. 1985).

The Pennsylvania Supreme Court has held that voir dire transcripts are public judicial records. Harris, 703 A.2d at 445-46. Therefore, the transcripts are presumptively open to the public and the press.

A Pennsylvania statute provides the names and addresses for persons assigned to a jury array (i.e., a pool from which prospective jurors are selected to serve on a jury) shall be made publicly available at the Pennsylvania office of the jury selection commission “no later than 30 days prior to the first date on which the array is to serve.” 42 Pa. Cons. Stat. § 4524.

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B. Juror identities, questionnaires and other records

There is a First Amendment right to access jurors’ names. Commonwealth v. Long, 922 A.2d 892 (Pa. 2007).

In a non-precedential opinion, the Superior Court of Pennsylvania considered a challenge to a trial court’s denial of access to a list of juror names following a mistrial in a criminal case. Commonwealth v. Held, 235 A.3d 339 (Pa. Super. 2020) (non-precedential). The appellate court affirmed the trial court’s order delaying the release of jurors’ names until after the defendant’s “still-pending criminal charges were resolved.” Id. at 342. The court reasoned that “the public-access-to-criminal-trials right ha[d] not been denied, it ha[d] been delayed.” Id. at 345. The Superior Court limited its holding to the “unique circumstances of the case,” which included the “significant government interests at stake” in the retrial and the fact that the intervenor seeking access to the names had “not proffered any . . . concerns” in the temporary delay of the release of the names. Id. at 347. Accordingly, the court ruled “the temporary closure order was a reasonable time/place/manner restriction that did not violate the First Amendment.” Id. at 350.

Rule 632 of the Pennsylvania Rules of Criminal Procedure provides that juror questionnaires shall not constitute a public record and are kept confidential.

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C. Grand jury proceedings and records

Grand jury proceedings are not open to the public. The Pennsylvania Rules of Criminal Procedure provide who may be present at a grand jury proceeding:

(A) The attorney for the Commonwealth, the alternate grand jurors, the witness under examination, and a stenographer may be present while the investigating grand jury is in session. Counsel for the witness under examination may be present as provided by law.

(B) The supervising judge, upon the request of the attorney for the Commonwealth or the grand jury, may order that an interpreter, security officers, and such other persons as the judge may determine are necessary to the presentation of the evidence may be present while the investigating grand jury is in session.

(C) All persons who are to be present while the grand jury is in session shall be identified in the record, shall be sworn to secrecy as provided in these rules, and shall not disclose any information pertaining to the grand jury except as provided by law.

Pa. R. Crim. P. 231.

Rule 229 of the Pennsylvania Rules of Criminal Procedure provides that “[e]xcept as otherwise set forth in these rules, the court shall control the original and all copies of the [grand jury] transcript and shall maintain their secrecy.” (emphasis added). Rule 230 provides that the transcripts may be released to the attorney for the Commonwealth, the criminal defendant, or another investigative agency under certain conditions.

The Pennsylvania Supreme Court has held that “there is no historical common law right of access to grand jury proceedings” or “documents and other materials generated from or related to grand jury proceedings.” In re 2014 Allegheny Cty. Investigating Grand Jury, 223 A.3d 214, 230 (Pa. 2019).

An investigating grand jury report is a public record to which a statutory right of access applies, under certain circumstances. See, e.g., In re Fortieth Statewide Investigating Grand Jury I, 190 A.3d 560, 569 (Pa. 2018) (citing 42 Pa. Cons. Stat. § 4552). The judge presiding over the grand jury is required to file the “report as a public record with the court of common pleas established for or embracing the county or counties which are the subject of such report,” but “only if the report is based upon facts received in the course of an investigation authorized by [the grand jury statute] and is supported by the preponderance of the evidence.” 42 Pa. Cons. Stat. § 4552(b). If the judge determines either that the report is not supported by a preponderance of the evidence or that its disclosure would “prejudice fair consideration of a pending criminal matter,” then the report should be sealed. Id. § 4552(b)-(c). The Pennsylvania Supreme Court has held that, in light of the Pennsylvania Constitution’s guarantee of a person’s right to reputation, any person has a right to due process before being accused of misconduct in a publicly released grand jury report. See, e.g., In re Fortieth Statewide Investigating Grand Jury I, 190 A.3d at 573-76. The grand jury statute provides that“[i]f the supervising judge finds that the report is critical of an individual not indicted for a criminal offense, the supervising judge may in his sole discretion allow the named individual to submit a response to the allegations contained in the report. The supervising judge may then in his discretion allow the response to be attached to the report as part of the report before the report is made part of the public record . . . .” 42 Pa. Cons. Stat. § 4552(e).

In 2018, the Pennsylvania Supreme Court considered petitions filed by several priests who sought to have their names redacted from a grand jury report detailing allegations of child sex abuse within the Roman Catholic Church. In re Fortieth Statewide Investigating Grand Jury I, 190 A.3d at 573-76. The priests argued that disclosure of their names would deprive them of their right to reputation without adequate due process. Id. at 572. The Supreme Court issued two opinions in which it ultimately agreed with the priests and ordered that their names be permanently redacted from the report. See id.; In re Fortieth Statewide Investigating Grand Jury II, 197 A.3d 712 (Pa. 2018).

In its first opinion, the Supreme Court made clear that redaction of an accuser’s name from a grand jury report will not always be required. See Fortieth Statewide Investigating Grand Jury I, 190 A.3d at 564. Instead, it distinguished between a grand jury report “that is designed to address general welfare concerns, but may have a collateral impact on reputational rights,” and a report by a grand jury like the one at issue, which had “a primary objective . . . to publicly censure the conduct of specific individuals.” Id. at 573-74. Where the latter is involved, “increased procedural protections are implicated in the interest of fundamental fairness.” Id. at 574. The Supreme Court acknowledged that the Grand Jury Act allowed the priests to submit rebuttal statements for inclusion in the report, see 42 Pa. Cons. Stat. § 4552(e), but decided that such a remedy was “not sufficiently effective” in this instance, because the report itself was 900 pages, and it impugned individual priests as “predator[s] or facilitator[s] alongside more than 300 others amidst the hierarchy of a religious institution.” Fortieth Statewide Investigating Grand Jury I, 190 A.3d at 574. Likewise, the Court held that the Act’s provision for “preponderance-of-the-evidence review by a supervising judge” was “not a sufficient safeguard to obviate the necessity to provide [the priests] an opportunity to respond to the grand jury’s criticism in a meaningful way.” Id. at 575. Given those unique circumstances, the Supreme Court ordered additional argument on the availability of alternative measures, short of permanent redaction, that would comply with due process. Id. at 575-76.

After hearing additional argument, the Supreme Court issued a second opinion holding there were no such available alternative measures under the case’s unique circumstances, most notably that the term of the grand jury that issued the report had expired. See In re Fortieth Statewide Investigating Grand Jury II, 197 A.3d at 721-24. The Supreme Court noted that the Grand Jury Act did not permit the “extraordinary measure” of reconvening the grand jury to hear additional evidence. Id. at 721. It further concluded that the Grand Jury Act did not permit the supervising judge to hear additional evidence, and that even if it did, “such a process would be fraught with problems rooted in the nature and character of the divergent type of evidence the supervising judge would be forced to evaluate.” Id. at 722. Consequently, pursuant to its “inherent judicial authority” to address “deprivation of an individual’s due process rights,” the Supreme Court ordered that the priests’ names be permanently redacted. Id. at 723-24. The Supreme Court’s decision did not establish a per se rule that will always require redaction, so it is unclear what impact, if any, the decision will have on future grand jury reports.

In 2020, the Pennsylvania Supreme Court issued a third opinion in the same case, where it considered “whether either the common law or the First Amendment confers a qualified right of access to the press and the public to inspect certain search warrant materials issued in connection with a grand jury investigation.” In re 2014 Allegheny Cty. Investigating Grand Jury, 223 A.3d 214, 217-18 (Pa. 2018). The court held that neither a common law nor First Amendment right of access attaches to search warrant materials – an application and authorization for a search warrant, and an affidavit of probable cause – issued in connection with an ongoing grand jury investigation. Id. at 218, 232, 234-35. A thorough discussion of this decision in the sections related to criminal pretrial proceedings and search warrants. See Sections III.B, IV.D.

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D. Interviewing jurors

In Commonwealth v. Genovese, 487 A.2d 364, 368-69 (Pa. Super. 1985), the Superior Court struck down an order temporarily enjoining members of the press from interviewing jurors in a high-profile murder trial. While the court held that the order, which would automatically dissolve upon the completion of the trial, was not a prior restraint, it nonetheless concluded that there was no evidence showing that the order “was necessary to protect the jurors or to guarantee a fair trial.”

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VIII. Proceedings involving minors

Although “juvenile proceedings have traditionally been closed to the public in most jurisdictions,” the Pennsylvania Superior Court has held that the “constitutional presumption of openness applies to juvenile dependency matters.” In re M.B., 819 A.2d 59, 61-62 (Pa. Super. 2003); see In re J.B., 39 A.3d 421, 434 (Pa. Super. 2012) (recognizing that the same presumption applies to delinquency proceedings). But juvenile proceedings may be closed “to prevent parties’ embarrassment and protect privacy interests.” Id. at 63 (citing R.W. v. Hampe, 626 A.2d 1218, 1222 (Pa. Super. 1993)). For example, in In re J.B., the Pennsylvania Superior Court held that the trial court did not abuse its discretion in excluding the press from a juvenile delinquency proceeding. See 39 A.3d at 434. In doing so, the Superior Court reasoned that there was a compelling interest in protecting the privacy and psychological development of the child – who was under twelve years of age when the underlying criminal offense took place – and that no less restrictive means were available to serve those interests. See In re J.B., 39 A.3d at 432-34. The Superior Court has also held that “protecting minors from the trauma and embarrassment of testifying in public is, in and of itself, a compelling state interest under a First Amendment analysis.” In re M.B., 819 A.2d at 64 (citing Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 607-08 (1982)); see also Hampe, 626 A.2d at 1222 (recognizing “the salutary reasons of protecting the privacy interests of minors”).

Despite these holdings, Pennsylvania’s Juvenile Act provides detailed rules on when juvenile hearings and records may be closed. See 42 Pa. Cons. Stat. § 6336. Under that Act, juvenile hearings in Pennsylvania, including proceedings involving a child charged with a summary offense, § 6336(d) & (g), are closed unless the hearing is:

To declare a person in contempt of court.
Pursuant to a petition alleging delinquency where the child was 14 years old or older at the time of the alleged conduct andthe alleged conduct would be felony if done by adult.
Pursuant to a petition alleging delinquency where the child was 12 years old at the time of the alleged conduct and the alleged conduct is: murder, voluntary manslaughter, aggravated assault, arson, involuntary deviate sexual intercourse, kidnapping, rape, robbery, or attempt to commit or conspiracy to commit any of the foregoing.

Even if those circumstances are present, the proceedings may be closed to the extent of any agreement between the child and the attorney for the Commonwealth. Id. § 6336(d), (e).

Notwithstanding the above, the court may admit “any other person . . . [with] a proper interest in the proceeding . . . .” Id. § 6336(d). The comments to the statute confirm that the court may, in its discretion, admit members of the media into hearings that would otherwise be closed to the general public. See id. § 6336 cmt. If the media has access to these hearings, it should be allowed to publish whatever is learned at the hearings; an order to the contrary would constitute a prior restraint. Nevertheless, the notes to the statute state: “This section as drawn permits the court in its discretion to admit news reporters. This is frequently done with the understanding that the identity of the cases observed will not be published, a procedure generally satisfactory to the news media.”

In In re J.B., an intervenor brought a facial constitutional challenge to the closure provisions of the Juvenile Act under the Pennsylvania Constitution. In re J.B., 39 A.3d at 436. The Superior Court rejected that challenge, holding that the intervenor failed to provide any “meaningful discussion of, or citation to, relevant legal authority” in support of its argument. Id. at 437. The court then held that the challenged provisions were not facially unconstitutional because they did not provide for a blanket closure rule. Instead, they allow the court, in its discretion, to admit members of the media into a hearing. See id. (citing 42 Pa. Cons. Stat. § 6336 cmt.).

In addition, the Pennsylvania Supreme Court has adopted a policy governing access to case records, including criminal case records. See 204 Pa. Code § 213.81. Under that policy certain categories of documents and information are deemed confidential, including:

minors’ names and dates of birth, except when a minor is charged as a defendant in a criminal matter;
minors’ educational records;
medical/psychological records;
children and youth services’ records; and
information to which access is otherwise restricted by federal law, state law, or state court rule.

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A. Delinquency

Pennsylvania has a statute that provides detailed rules on when juvenile delinquency hearings and records may be closed. See 42 Pa. Cons. Stat. § 6336. Juvenile delinquency hearings in Pennsylvania are closed unless the hearing is:

1. To declare a person in contempt of court.

2. Pursuant to a petition alleging delinquency where the child was 14 years old or older at the time of the alleged conduct and the alleged conduct would be a felony if done by an adult.

3. Pursuant to a petition alleging delinquency where the child was 12 years old at the time of the alleged conduct and the alleged conduct is: murder, voluntary manslaughter, aggravated assault, arson, involuntary deviate sexual intercourse, kidnapping, rape, robbery, or attempt to commit or conspiracy to commit any of the foregoing.

Even if those circumstances are present, the proceedings may be closed to the extent of any agreement between the child and the attorney for the Commonwealth. § 6336(d), (e).

Notwithstanding the above, the court may admit “any other person . . . [with] a proper interest in the proceeding . . . .” § 6336(d). The comments to the statute confirm that under this provision, the court may, in its discretion, admit members of the media into hearings that would otherwise be closed to the general public. See § 6336 cmt. If the media has access to these hearings, it should be allowed to publish whatever is learned at the hearings; an order to the contrary would constitute a prior restraint. However, the notes to this statute state: “This section as drawn permits the court in its discretion to admit news reporters. This is frequently done with the understanding that the identity of the cases observed will not be published, a procedure generally satisfactory to the news media.”

Despite this statute, the courts have noted that there is a presumptive First Amendment right of access to juvenile delinquency hearings. In re J.B., 39 A.3d 421, 434 (Pa. Super. 2012). However, that presumptive right can be overcome if there is a compelling government interest that cannot be served by any means less restrictive than closure. Id. (closure of courtroom warranted during juvenile delinquency proceeding because state had compelling interest in maintaining minor’s privacy and no less restrictive means to closure were available). Furthermore, the Superior Court has rejected the notion that a juvenile’s privacy interests are less significant in a delinquency proceeding than in a dependency proceeding: “We agree with the juvenile court that In re M.B. was not creating any ‘brightline’ distinction between the privacy interests of a juvenile in a dependency proceeding and a juvenile in a delinquency proceeding.” Id. at 429.

In addition, the Public Access Policy of the Unified Judicial System of Pennsylvania: Case Records of the Appellate and Trial Courts; No. 477 Judicial Administration requires that certain information in judicial filings concerning minors be kept confidential. Such information includes a minor’s name, date of birth, and educational records. See 204 Pa. Code § 213.81

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B. Dependency

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C. Other proceedings involving minors

Divorce hearings are presumptively open, but “are the type of proceedings which courts may close to protect the rights of the parties.” Katz v. Katz, 514 A.2d 1374, 1380 (Pa. Super. 1986); see also R.W. v. Hampe, 626 A.2d 1218, 1222 (Pa. Super. 1993) (“Divorce cases present one exception to the general rule of openness. The subject matter of divorce litigation serves, in many cases, ‘only to embarrass and humiliate’ the litigants.” (citation omitted)).

In Storms v. O’Malley, the Superior Court affirmed the trial court’s denial of a physician’s motion to seal the record in a medical malpractice case involving a minor. 779 A.2d 548, 570 (Pa. Super. 2001). The Superior Court held that “the minor’s interest in secrecy was not significant in light of the fact that she and her family no longer reside[d] in the area.” Id. at 569.

Similarly, in A.A. v. Glicken, 237 A.3d 1165, 1170-71 (Pa. Super. 2020), the Superior Court held that defendants in a medical malpractice case involving a minor patient could not seal the petition to approve the settlement agreement with the minor.

There is not a public right of access to proceedings involving a child charged with a summary offense. See 42 Pa. Cons. Stat. § 6336(d) & (g); § 6303(c).

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D. Prohibitions on photographing or identifying juveniles

The Public Access Policy of the Unified Judicial System of Pennsylvania: Case Records of the Appellate and Trial Courts; No. 477 Judicial Administration requires that certain information in judicial records concerning minors be kept confidential. Such information includes a minor’s name, date of birth, and educational records. See 204 Pa. Code § 213.81. However, the policy does not prohibit members of the press from identifying juveniles in their reporting. Indeed, such a restriction would violate the First Amendment. See, e.g., Oklahoma Publ’g Co. v. Dist. Court In & For Oklahoma Cty., 430 U.S. 308, 311 (1977) (striking down injunction prohibiting media from publishing name or photo of minor involved in juvenile proceeding); Bowley v. City of Uniontown Police Dep’t, 404 F.3d 783, 789 (3d Cir. 2005) (newspaper could not be held liable for publishing identity of minor where the information it published was truthful, lawfully obtained, and involved a matter of public concern).

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E. Minor testimony in non-juvenile courts

Under Pennsylvania law, in a prosecution involving a child victim of sexual or physical abuse, the name of the child victim shall not be disclosed by officers or employees of the court to the public, and any records revealing the name of the child victim shall not be open to public inspection, unless the court orders otherwise. Violation of this section is a misdemeanor of the second degree. 42 Pa. Cons. Stat. § 5988. This does not prohibit the press from publishing the name of the child victim; it only prohibits officers or employees of the court from disclosing the name of the child victim.

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IX. Special proceedings

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A. Tribal Courts in the jurisdiction

There are no tribal courts in Pennsylvania.

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B. Probate

Wills in probate are publicly accessible. Probate proceedings and records are subject to the same rights, laws, and rules regulating access as other civil proceedings and records.

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C. Competency and commitment proceedings

Under Pennsylvania law, hearings on whether a person is incapacitated under Pennsylvania’s Probate, Estates and Fiduciaries Code “may be closed to the public and without a jury unless the alleged incapacitated person or his counsel objects. The hearing shall be closed and with or without a jury if the person alleged to be incapacitated or his counsel so requests.” 20 Pa. Cons. Stat. § 5511(a).

In In re Estate of DuPont, 2 A.3d 516, 520-25 (Pa. 2010), the Pennsylvania Supreme Court held that where records used to declare a person incapacitated have already been sealed by order of the orphan’s court, a person seeking to unseal those records has the burden to “demonstrate good cause” for modifying the already existing sealing order. Applying that standard, the Supreme Court held that the lower court did not err in denying a request to unseal records that were previously filed under seal years earlier in the capacity proceeding of John E. DuPont, an eccentric heir who murdered a former Olympic wrestler living on his property. The Supreme Court first noted that DuPont’s incapacity proceedings “necessitate[d] the exposure of inherently private personal information – such as detailed financial, medical and psychiatric records . . . .” Id. at 521-22. The court then held that “the good cause for sealing the record in this matter is inherent in the nature of the proceeding and is of no less weight today than it was at the time the [c]ourt originally ordered the record to be sealed.” Id. at 519 (citation and quotation omitted).

Section 304(e)(4) of the Pennsylvania Mental Health Procedures Act (PMHPA), 50 P.S. § 7304(e)(4), provides that in “formal” commitment proceedings (i.e., those resulting in commitment not exceeding 90 days), “the hearing shall be public unless it is requested to be private by the person or his counsel.” The Pennsylvania Supreme Court has upheld the constitutionality of that section. See In re Seegrist, 539 A.2d 799, 800 (Pa. 1988). Closure is not mandated simply because a party so requests. See Commonwealth v. Milice, 584 A.2d 997, 998 (Pa. Super. 1991) (“Absent more explicit statutory language and in light of the lengthy and powerful tradition of openness, we are unable to conclude that the Mental Health Procedures Act mandates closure of a hearing on the mere request of a patient.”); see also R.W. v. Hampe, 626 A.2d 1218, 1222 (Pa. Super. 1993) (“The potential disclosure of mental illness does not necessarily mandate the closure of judicial proceedings.”). Instead, closure may only be warranted where an open hearing would cause “a clearly defined and serious injury to the party seeking closure,” “something more” than the mere assertion that confidential testimony will be presented. Milice, 584 A.2d at 998.

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D. Attorney and judicial discipline

1. Attorney Discipline

Pennsylvania’s Rules of Disciplinary Enforcement provide that all attorney discipline proceedings shall remain confidential until (1) an answer to a discipline charge has been filed; (2) the time to answer a discipline charge has expired; (3) a petition for reinstatement has been filed and served, or (4) the Board has entered an order determining public reprimand. Pa. R.D.E. 402(a).

However, if the proceeding ultimately results in private discipline or dismissal of all the charges, it will cease being open to the public. Id. 402(k). In a decades-old decision, the Supreme Court of Pennsylvania held that keeping an attorney discipline proceeding confidential did not violate the First Amendment right of access where the proceeding resulted in no public discipline and concerned matters that were “noncriminal” and “nongovernmental” in nature. McLaughlin v. Philadelphia Newspapers, Inc., 348 A.2d 376 (Pa. 1975).

Even if a proceeding would ordinarily be confidential, an attorney-respondent can waive confidentiality. Pa. R.D.E. 402(c)(1). Moreover, a disciplinary proceeding will not be confidential if it is predicated on a criminal conviction or reciprocal discipline. Id. 402(c)(2).

The Disciplinary Board “may, upon application of any person and for good cause shown, issue a protective order prohibiting the disclosure of specific information otherwise privileged or confidential.” Id. 402(f).

2. Judicial Discipline

Complaints about judicial misconduct are sent to the Judicial Conduct Board for initial evaluation. Pa. R. Bd. Judicial Conduct § 25. Proceedings before the Judicial Conduct Board must remain confidential unless the judicial officer who is the subject of the complaint waives confidentiality and the Judicial Conduct Board determines that disclosure is appropriate. Id. §§ 17-18. Additionally, upon request from the judicial officer, limited disclosures are permitted where the investigation has become a matter of public record independent of any action taken by the Judicial Conduct Board. Id. § 18(a).

If the Judicial Conduct Board determines that a complaint has merit, it may file formal charges with the Court of Judicial Conduct. Pa. C.J.D.R.P. No. 301. Once formal charges are filed, all trial and post-trial proceedings before the Court of Judicial Conduct “shall be open to the public.” Id., Nos. 504(A), 505(C)(5).

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E. Immigration proceedings

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F. Other proceedings

The Superior Court has held that when “parties in a custody proceeding stipulate to declare a [temporary protection from abuse order] null and void, the target of the TPFA is entitled to expungement” of that order. G.P.M. v. A.M.F., 2018 Pa. Super. Unpub. LEXIS 4890, at * 6 (Pa. Super. December 31, 2018).

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X. Restrictions on participants in litigation

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A. Media standing to challenge third-party gag orders

A person seeking to challenge the legality of a gag order should file a petition with the trial court to intervene for that purpose. See Capital Cities Media, Inc. v. Toole, 483 A.2d 1339 (Pa. 1984). Pennsylvania law allows a third party to intervene in a proceeding if “the determination of such action may affect any legally enforceable interest of such person whether or not he may be bound by a judgment in the action.” Pa. R. Civ. P. 2327(4); see Hutchison v. Luddy, 581 A.2d 578, 581, 585 (Pa. Super. 1990) (holding a trial court’s grant of a newspaper’s petition to intervene was not an abuse of discretion when the newspaper sought to secure its right of access to the pleading and pretrial proceedings in the case because any other holding would jeopardize the newspaper’s ability to enforce its right of access), aff’d in relevant part, rev’d in part, 594 A.2d 307 (Pa. 1991).

The process for intervening in civil cases is outlined in Pa. R. Civ. P. 2328. An application for leave to intervene is to be made by a petition that should be in the form of a plaintiff’s initial pleading in a civil action and verified as such. Pa. R. Civ. P. 2328. The pleading should set forth the ground on which intervention is sought and a statement of the relief or defense the petitioner seeks to demand or assert. Attached to the petition to intervene should be any pleading that the petitioner will file in the action if permitted to intervene. Id. A copy of the petition should be served upon each party to the action. Id.

If an order denying leave to intervene is entered, it is immediately appealable, and, if appropriate, the Supreme Court can exercise its plenary jurisdiction and stay proceedings pending its review under the collateral order doctrine. See Capital Cities Media, Inc., 483 A.2d at 1342.

The Pennsylvania Supreme Court has never expressly ruled on whether the media has standing to challenge gag orders that only restrict the speech of trial participants. In Commonwealth v. Crawford, 789 A.2d 266 (Pa. Super. 2001), the Superior Court held that the media did not have standing to challenge a gag order prohibiting trial participants from making extrajudicial statements that could interfere with the defendant’s fair trial rights. The Superior Court concluded the media lacked standing in that case because (1) the media organizations challenging the order were never granted intervenor status at the trial court level, and (2) the gag order only restricted the speech of trial participants and therefore did not prevent the media from covering the proceedings. 789 A.2d at 269-70. However, in a different case, the Superior Court assumed, without expressly reaching the issue, that members of the media had standing to challenge a gag order that only restricted the speech of trial participants. See Commonwealth v. Lambert, 723 A.2d 684, 688 (Pa. Super. 1998). This is the view taken by the majority of courts in other jurisdictions. See, e.g., FOCUS v. Allegheny Cty. Ct. of Common Pleas, 75 F.3d 834, 838-39 (3d Cir. 1996) (citing cases).

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B. Gag orders on the press

The press is free to publish that which transpires during a court case. Significantly, absent a state interest of the highest order, courts may not prevent or punish the publication of truthful information related to a matter of public concern, such as an ongoing case, that has been lawfully obtained. Even short-lived gag orders are reviewed cautiously out of concern that they may cause irreparable injury to First Amendment interests as long as they remain in effect. Indeed, gag orders on the press are “extremely difficult to justify” and would be upheld only in the most “exceptional cases.” Nebraska Press Ass’n v. Stuart, 427 U.S. 539, 591-92 (1976) (Brennan, J., concurring).

For example, in Commonwealth v. Genovese, 487 A.2d 364 (Pa. Super. 1985), the media challenged two gag orders issued by the trial judge in a murder trial. The first order prohibited the press from publishing the name of any juror and the second order prevented the media from contacting any potential juror. The trial judge stated the order was put in place to prevent jury harassment. On appeal, the Superior Court ruled that because evidence was lacking that the jury actually would be harassed, no equally effective alternatives to the order had been considered, and the voir dire was conducted publicly, the first gag order was an unconstitutional prior restraint. Id. at 368-69. The court struck down the second order on First Amendment grounds, holding that there was no evidence that such an order was necessary to protect the jurors or guarantee a fair trial. Id. at 369.

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C. Gag orders on participants

Gag Orders on Attorneys: Gag orders on attorneys are upheld in Pennsylvania when the order is necessary to prevent material prejudice to an adjudicatory proceeding or in order to prevent interference with a defendant’s right to a fair trial. Pennsylvania courts have allowed restrictions on public comment by attorneys when such comments will affect the right to a fair trial or such restrictions are consistent with the Professional Rules of Conduct, which seeks to ensure an individual’s right to a fair trial. Commonwealth v. Lambert, 723 A.2d 684 (Pa. Super. 1998).

Pennsylvania Rule of Professional Conduct 3.6 provides a lawyer shall not make an extrajudicial statement that a reasonable person would expect to be disseminated by means of public communication if the lawyer knows or reasonably should know that it will have a substantial likelihood of materially prejudicing an adjudicative proceeding. It further outlines specific types of statements that are prohibited. Pennsylvania’s Superior Court has upheld the operative validity and constitutionality of orders prohibiting counsel from speaking outside of the parameters of this ethical obligation. See Lambert, 723 A.2d at 694-95.

In Lambert, 723 A.2d 684, a defendant filed a petition pursuant to the Post-Conviction Relief Act. The court, sua sponte, issued an order limiting publicity. The order directed that counsel for both parties and all persons assisting them should abide by an attorney disciplinary rule that prohibited public comment about the case except in accordance with the Rules of Professional Conduct. Two newspapers intervened and challenged the order. Id. The court held that “limitations on the speech of attorneys involved in pending litigation, even when such limitations are prior restraints on the attorneys’ First Amendment rights, will be constitutional if the prohibited speech is limited to that which contains a substantial likelihood of material prejudice to an adjudicatory proceeding.” Id. at 691. The court held that the Pennsylvania Rule of Professional Conduct that prohibited attorneys from making such public comments was constitutional and not void for vagueness. Id. at 694-95.

In Commonwealth v. Crawford, 789 A.2d 266 (Pa. Super. 2001), the court upheld a gag order imposed on all persons connected with a criminal trial. The media were denied standing to challenge the gag order since the order did not restrict media coverage of the trial or prevent the media from questioning counsel. The court found that the media lacked a substantial, immediate, and direct interest in the subject matter of the litigation. The court rationalized that the gag order did not restrict media coverage of the proceedings, prevent reporters from questioning the attorneys, or restrict attorneys from speaking to the media. Rather, the court held the order only prohibited attorneys from making extrajudicial statements likely to interfere with the defendant’s right to a fair trial. Therefore, the court stated that since the media lacked a substantial or direct interest and was unable to demonstrate an immediate injury caused by the order, they lacked standing to intervene.

In S.B. v. S.S., 243 A.3d 90 (Pa. 2020), the Pennsylvania Supreme Court held that a gag order against an attorney and a parent in a child custody case – an order that prevented them from “speaking publicly about the case in a manner that would identify the child involved” – did not violate their rights under the First Amendment and the Pennsylvania constitution. Id. at 100. Unlike the cases discussed above, where the governmental interest at stake was the right to a fair trial, in S.B., the interest was in “protecting the psychological well-being and the privacy of the child at the center of the custody dispute.” Id. at 94.

In S.B., “[t]he impetus for issuance of the gag order was Appellants’ online press conference, which contained a link to pleadings from the custody case, a transcript of Child’s testimony, and a copy of Child’s forensic interview, setting forth, in Child’s own words, detailed allegations of sexual abuse by Father, which the trial court had found did not occur.” Id. at 109. The child’s name was not used at the press conference, but the mother was named, making it easy for the community to deduce the child’s identity. Id. “The trial court found that ‘the disclosure of the identity of [Child] in this case is harmful and clearly not in his best interest as there is clearly the potential for curious parents, teachers and students in his school [characterized elsewhere as a small private school] to read this information, which could subject him to undue scrutiny, ridicule and scorn.’” Id. at 97, 110 (quoting and relying upon the trial court’s findings of fact).

The Pennsylvania Supreme Court held that the gag order on the child’s mother and her attorney “constitutes a content-neutral restriction on the matter by which Appellants may convey their public speech, which was imposed for the exclusive purpose of protecting the psychological well-being and privacy of Child, and was not intended to, and, indeed, does not restrict Appellants’ message.” Id. at 106. The court accordingly applied intermediate constitutional scrutiny, and it did not take into account the attorney’s ethical duties, as in the cases above.

Applying intermediate scrutiny, the court stated that “the justifications for the speech restrictions contained in the gag order are, without question, important and substantial, and that Child’s right to psychological and emotional well-being and privacy outweigh Mother and Counsel’s right to free speech.” Id. at 108. The court held that the gag order in the case “furthers an important governmental interest where there is a substantial likelihood that the restrained speech has harmed or will imminently harm the child” and that the order was narrowly tailored to that end. Id. at 110-11.

Gag Order on Parties to a Judicial Proceeding: In Pennsylvania, courts assessing the legality of a gag order on parties or third parties to a judicial proceeding must consider whether restricting pretrial publicity or public comments is necessary to ensure defendants have a fair trial, to permit the selection of an impartial jury, and to prevent any improper influence on the course or outcome of judicial proceedings.

For example, four decades ago, in Philadelphia Newspapers, Inc. v. Jerome, 387 A.2d 425 (Pa. 1978), a number of Pennsylvania newspapers filed petitions challenging the constitutionality of gag orders issued by judges. The orders in question closed the pre-trial hearing to three criminal trials and prohibited participants in the proceedings from discussing, disclosing, or disseminating evidence of which the admissibility was to be determined by the court. The court held that restricting pretrial publicity ensured a defendant’s right to have unconstitutionally seized evidence suppressed because it lessened the risk that such information would become public and later affect the selection of an impartial jury. It therefore denied the newspapers’ request for relief from the gag orders. The court stated that the orders directing participants not to discuss the pretrial proceedings were designed to prevent harm to the accused’s right to a fair trial and ensure the public interest in prompt, orderly, and final administration of criminal justice. Such a “gag order” was necessary to effectuate the court’s other orders regarding pretrial publicity. Furthermore, the gag orders were narrowly tailored to meet the problem of prejudicial disclosure from suppression hearings. Id. at 512; but cf. Commonwealth v. Hayes, 414 A.2d 318 (Pa. 1980) (holding closure may not be ordered where some other available procedural device can fully protect the defendant’s right in a given instance). The decision in Jerome would likely be deemed unconstitutional under more recent precedent.

In In re Griffin, 690 A.2d 1192 (Pa. Super. 1997), a court issued an order prohibiting foster parents from discussing or referring to the case in any public context or forum. The parents appeared on several nationally televised talk shows and discussed the case. The Superior Court held them in contempt. The parents, in defense, challenged the constitutionality of the order, but the court barred their challenge on procedural grounds since they had failed to challenge the order following its entry by the trial judge.

Upon the completion of the first criminal trial of well-known entertainer Bill Cosby, which ended in a mistrial, the presiding judge released juror names, but instructed the jurors that they should not disclose to the media the substance of their deliberations, recognizing that Mr. Cosby could be retried.

In S.B. v. S.S., 243 A.3d 90 (Pa. 2020), discussed in detail in the preceding section relating to gag orders on attorneys, the Pennsylvania Supreme Court held that a gag order against an attorney and a parent in a child custody case – an order that prevented them from “speaking publicly about the case in a manner that would identify the child involved” – did not violate their rights under the First Amendment and the Pennsylvania constitution because the interest in the child’s “right to psychological and emotional well-being and privacy” were “important and substantial” and outweighed the attorney and parent’s right to free speech. Id. at 100, 108.

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D. Interviewing judges

The Pennsylvania Code of Judicial Conduct states “a judge should abstain from public comment about a pending proceeding in any court….” Pa. Code Jud. Conduct Canon 3A(6). This subsection does not prohibit judges from making public statements in the course of their official duties or from explaining, for public information, the procedures of the court. Id.

In Commonwealth v. Druce, 848 A.2d 104 (Pa. 2004), the court held that a judge’s statements to the media concerning a defendant’ sentencing violated Pa. Code Jud. Conduct Canon 3A(6), but did not per se require him to recuse himself from the case. While recognizing the Code “does not have the force of substantive law,” the court emphasized its approval of the Code’s standards of conduct and found a Code of Judicial Conduct violation. Id. at 109. The court also stated it “d[id] not approve of members of the judiciary speaking to the press about cases pending before them . . . .” Id.

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XI. Other issues

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A. Interests often cited in opposing a presumption of access

Pennsylvania courts have described a variety of interests that might justify closure, depending on the circumstances, including:

Protecting “the integrity of ongoing criminal investigations,” In re M.B., 819 A.2d 59, 62 (Pa. Super. 2003), including ongoing grand jury investigations, In re 2014 Allegheny Cty. Investigating Grand Jury, 223 A.3d 214, 234–35 (Pa. 2019);
Protecting trade secrets, see Zdrok v. Zdrok, 829 A.2d 697, 700 (Pa. Super. 2003); Air Prods. & Chems., Inc. v. Johnson, 442 A.2d 1114, 1128 (Pa. Super. 1982) (affirming order excluding defendant from seeing testimony by another party’s witness concerning alleged trade secrets or confidential information, finding that “‘such public disclosure will destroy the value of such trade secrets so sought to be protected’” (citation omitted));
“Guard[ing] against risks to national security interests,” Zdrok, 829 A.2d at 700.
Protecting “the privacy and reputations of innocent parties,” in certain circumstances, i; R.W. v. Hampe, 626 A.2d 1218, 1222 (Pa. Super. 1993) (“Divorce cases present one exception to the general rule of openness. The subject matter of divorce litigation serves, in many cases, ‘only to embarrass and humiliate’ the litigants.” (citation omitted)); Commonwealth v. Smith, 421 A.2d 693, 694 (Pa. Super. 1980) (“Where a rape victim testifies to facts which could prove embarrassing or painful to her, a trial court has authority to exclude spectators from the trial temporarily.”) (citing Commonwealth v. Stevens, 352 A.2d 509 (Pa. Super. 1975)); but see Commonwealth v. Hayes, 414 A.2d 318, 324-327 (Pa. 1980) (rejecting defendant’s contention that holding a pretrial suppression hearing in open court jeopardized his right of privacy because such a privacy concern “does not warrant engrafting such a significant intrusion upon the basic right of access of the public in criminal proceedings”); Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 606-07 (1982) (invalidating per se rule mandating courtroom closure during all testimony of minor victims of sex crimes); cf. Hallowich v. Range Res. Corp., 30 Pa. D. & C. 5th 91, 101 (Washington Cty. C.C.P. 2013) (holding that corporate entities, as opposed to individuals, do not possess the type of privacy interests that could justify closure); and
Protecting against “threats of violence to witnesses,” Commonwealth v. Wright, 388 A.2d 1084, 1086 (Pa. Super. 1978).

As the Superior Court has explained, “‘[t]hese are not necessarily the only situations where public access can properly be denied. A bright line test has yet to be formulated. Meanwhile, the decision as to public access must rest in the sound discretion of the trial court.’” Zdrok, 829 A.2d at 700 (quoting Katz v. Katz, 514 A.2d 1374, 1377-78 (Pa. Super. 1986) (citations omitted). Nevertheless, the court can only close proceedings when the high burden justifying sealing is met.

The Pennsylvania Supreme Court has adopted a policy governing access to case records, including criminal case records. See 204 Pa. Code § 213.81. The policy provides that “[a]ll case records shall be open to the public” with some significant exceptions for documents and information deemed confidential and thus not available to the public, such as social security numbers and driver’s license numbers. See above Part IV.J, “Other criminal court records issues.”

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B. Cameras and other technology in the courtroom

In 2018, the General Assembly enacted a law making it a misdemeanor to capture or transmit any photograph, video, or audio from a courtroom. 18 Pa. Con. Stat. § 5103.1. Specifically, the law prohibits a person from, “in any manner and for any purpose, us[ing] or operat[ing] a device to capture, record, transmit or broadcast a photograph, video, motion picture or audio of a proceeding or person within a judicial facility or in an area adjacent to or immediately surrounding a judicial facility without the approval of the court or presiding judicial officer or except as provided by rules of court.” Id. The statute defines “judicial facility” to include “a courtroom, hearing room or judicial chambers used by the court to conduct trials or hearings or any other court-related business or any other room made available to interview witnesses.” Id.

Criminal Proceedings: Rule 112 of the Pennsylvania Rules of Criminal Procedure states that courts “shall . . . prohibit the taking of photographs, video, or motion pictures of any judicial proceedings or in the hearing room or courtroom or its environs . . . .” The term “environs” is defined as “the area immediately surrounding the entrances and exits to the hearing room or courtroom.” Id.

The Pennsylvania Superior Court held in Commonwealth v. Davis, 635 A.2d 1062 (Pa. Super. 1993), that Rule 328 of Pennsylvania’s Rules of Criminal Procedure, which later was replaced by Rule 112, prohibited the photographing of jury views of a crime scene and any other location where criminal proceedings must be held outside of the physical courtroom. The language of Rule 328 prohibited “‘the taking of photographs in the courtroom or its environs or radio or television broadcasting from the courtroom or its environs during the progress of or in connection with any judicial proceedings.’” Id. at 1064 (emphasis added). The court held jury views were considered environs of the courtroom, and that the Rule was a permissible “time, place and manner restriction” that did not violate the First Amendment, as the press and public were fully able to witness the jury view. Id. at 1070.

Rule 112 also prohibits the transmission of communications by telephone, radio, television or advanced communication technology from the hearing room or the court or its environs during the process of or in connection with any criminal judicial proceeding. Some Pennsylvania courts have interpreted this rule to prohibit journalists from sending tweets, blog posts, texts and other internet postings from the courtroom, while others have permitted tweeting and other electronic communications from court.

In Commonwealth v. Hewlett, 189 A.3d 1004 (Pa. Super. 2018), an appellate court considered whether a trial court abused its discretion in a criminal case when it allowed the government to present evidence concerning a trial spectator’s cell phone use after a witness mentioned in her testimony that the spectator was using a cell phone in the courtroom, and the trial court found that the spectator was texting about the witness’s testimony. The appellate court ruled that the defendant had waived any challenge, and in a concurring opinion observed that the trial court had the authority to “enforce its order that a cell phone may not be used in its courtroom for any purpose, particularly during a trial and especially if the effect of such use is to intimidate a witness while she is testifying.” Id. at 1014-15 & n.3 (Bowes, J., concurring). The concurring judge agreed that a courtroom ban on cell phones was a “permissible restriction” on the “otherwise-protected First Amendment activity” of attending a trial. Id. at 1015 (Bowes, J. concurring). That judge explained that the cell phone ban was permissible “due to the overriding governmental interest in preserving the integrity of the trial.” Id.

The applicability of Rule 112 and Pennsylvania Rule of Judicial Administration 1910 (prohibiting recording without the court’s permission) are now in some doubt in connection with court proceedings that are held without a court reporter and are thus off the record. In Phila. Bail Fund v. Arraignment Court Magistrate Judges, 440 F. Supp. 3d 415 (E.D. Pa. 2020), a federal district court in Philadelphia held that the First Amendment allows the public to create unobtrusive audio recordings of bail hearings in Philadelphia where the court – as is common practice throughout Pennsylvania – did not produce any verbatim record of the hearings. The federal court noted that “[t]he right to attend [bail hearings] and take notes and then to obtain statistical data about bail hearings after the fact is not adequate under the circumstances presented to vindicate the public’s First Amendment right of access to the courts,” which is not limited “‘only to those who can squeeze through the door.’” Id. at 425-26 (quoting United States v. Antar, 38 F.3d 1348, 1360 (3d Cir. 1994)). While the court limited its holding to “the narrow circumstances present here,” id. at 425, as far as we are aware, this is the first decision anywhere finding that the First Amendment protects the public’s right to create its own recordings of court proceedings. It should be noted as a practical matter that the court gave the Philadelphia bail magistrates the option to start holding bail hearings on the record rather than allow the public to create its own recordings, see id. at 427, and the bail magistrates did so.

The Philadelphia bail magistrates appealed the district court’s decision to the U.S. Court of Appeals for the Third Circuit, which initially reversed the district court in a 2-1 panel vote. See Reed v. Bernard, 976 F.3d 302 (3d Cir. 2020). However, after the full Third Circuit voted to vacate the panel opinion and rehear the case en banc, see 984 F.3d 273 (3d Cir. 2020), the bail magistrates voluntarily dismissed their appeal. Accordingly, the original ruling allowing the public to record bail hearings in the absence of an official court record continues to apply.

Civil Proceedings: Rule 223 of Pennsylvania’s Rules of Civil Procedure, which gives the court authority to make orders and enforce rules “regulating or excluding the public or persons not interested in the proceedings,” includes an official note stating that “the exclusion of the taking of photographs or radio or television broadcasting is governed by” Pennsylvania Rule of Judicial Administration 1910. That rule provides that “[u]nless otherwise provided by . . . the Supreme Court of Pennsylvania, judges shall prohibit broadcasting, televising, recording or taking photographs in the courtroom and areas immediately adjacent thereto.” It makes exceptions for purposes of judicial administration; investitive, ceremonial or naturalization proceedings; and “instructional purposes in educational institutions.”

Rule 1910 also permits judges to exercise discretion to allow broadcasting, televising, recording and taking photographs of any trial court nonjury civil proceeding (excluding support, custody or divorce proceedings) if the parties consent. In such instances, each witness who is depicted or recorded also must consent, and a witness or party who objects should not be photographed or have his/her testimony broadcast or telecast. The rule further provides that the means of recording must not “distract [the] participants or impair the dignity of the proceedings.” Id. Permission for broadcasting, televising, recording and photographing any civil nonjury proceeding must first be expressly given by the judge.

The Pennsylvania Rules of Civil Procedure do not include a rule like Criminal Rule 112 concerning the use of “advanced communication technology” in court.

Local Court Rules for Civil Proceedings in the Court of Common Pleas: When considering the possibility of recording a civil proceeding in the Court of Common Pleas, one should always consult the local rules and individual practices of the presiding judge, some of which may contain special provisions for technology in the courtroom. While not an exhaustive list, below is a summary of certain counties that have adopted such rules:

In Adams County, Rule 140 of the Adams County Rules of Judicial Administration, prohibits “pictures or photographs [to] be taken immediately preceding or during sessions of [the court] or recesses between sessions, in any of the courtrooms or at any place in the courthouse within forty (40) feet of the entrance of the courtroom unless specially allowed by the President Judge.” The rule also prohibits any court proceeding from being “broadcasted or televised,” or “mechanically or electronically recorded except by the official court reporter unless specifically allowed by the President Judge or the Judge presiding over that proceeding.” For pictures or photographs of any party to a civil or criminal action, juror, or witness, “knowledge and consent of the person or persons photographed” is required for photographs taken “in the law library or in any office or other room of the courthouse.”

In Westmoreland County, Rule W300 of the County Rules of Civil Procedure states that generally there “shall be no broadcasting, televising, recording or the taking of photographs in the courtroom and areas immediately adjacent thereto” in civil proceedings. This rule applies during sessions of court or recesses in between. There are exceptions for the “presentation of evidence,” “perpetuation of a record,” or “other purposes of judicial administration.” There are also exceptions for “investiture, ceremonial, or naturalization proceedings.”

The Westmoreland County Rules further specify that the “photographic or electronic recording and reproduction of appropriate court proceedings” may be authorized at the discretion of the court, but must meet the following conditions.

(1) The means of recording will not distract participants or impair the dignity of the proceedings; and

(2) The parties have consented, and the consent to being depicted or recorded has been obtained from each witness appearing in the recording and reproductions; and

(3) The reproduction will not be exhibited until after the proceeding has been concluded and all direct appeals have been exhausted; and

(4) The reproduction will be exhibited only for instructional purposes in educational institutions.

Before a Magisterial District Judge: Photographing, broadcasting, televising, or recording of judicial proceedings is prohibited in all proceedings before a magisterial district judge by Rule 2.8(C) of the Rules Governing Standards of Conduct for Magisterial District Judges.

Before an Appellate Court:

Supreme Court: The internal operating procedures of the Pennsylvania Supreme Court lay out the general provisions of photographing, recording, and broadcasting proceedings in the Supreme Court. See 210 Pa. Code § 63.9. The Executive Administrator of the Supreme Court may permit photography, broadcasting, and recording at their discretion, and any request to photograph and or broadcast must be made at least three business days prior to the proposed date. In addition, the internal operating procedures set out specific rules for the Pennsylvania Cable Network (“PCN”) to record Supreme Court proceedings.

Commonwealth Court: The Commonwealth Court’s internal operating procedures allow recording by PCN of en banc proceedings before the Commonwealth Court. See 210 Pa. Code § 69.502. The internal operating procedures provide detailed rules about PCN’s recording.

Superior Court: There are no specific Superior Court rules regarding cameras and other technology in the courtroom.

Developments During the COVID-19 Pandemic:

During the first phase of the COVID-19 pandemic in the spring of 2020, Pennsylvania courts took unprecedented emergency measures to encourage the use of advanced communications technologies to conduct proceedings and to allow ongoing access to courts through virtual and electronic means. On April 28, 2020, the Supreme Court ordered that “[i]n proceedings as to which a right to public and press access would otherwise exist, provision must be made to ensure some reasonable means of access,” including by live-streaming proceedings or making a recording available as soon as possible, despite Pennsylvania court rules prohibiting broadcasting. In re Gen. Statewide Judicial Emergency, 230 A.3d 1015, 1018 (2020). It was left to individual Pennsylvania courts to implement this order. See, e.g., First Judicial District of Pennsylvania, Public Access to Judicial Proceedings During the Covid-19 Pandemic (updated May 21, 2021), available at https://www.courts.phila.gov/pdf/Public-Access-to-Judicial-Proceedings-Livestream-Policy.pdf. Despite this extraordinary relaxation of the rules – and the fact that the courts themselves were publishing or even livestreaming their proceedings – the prohibitions on independent recording, transmission, or broadcasting of judicial proceedings found in Pennsylvania Rule of Criminal Procedure 112 and Rule of Judicial Administration 1910 remained in place.

As of August 2021, the future of these emergency measures remains uncertain. On June 21, 2021, the Supreme Court ordered that “[e]ffective July 6, 2021, operation of the Unified Judicial System shall return to pre-pandemic status.” Order, In re General Statewide Judicial Emergency, No. 553 Judicial Administration Docket (Pa. June 21, 2021). Local president judges no longer have the power to declare local judicial emergencies justifying the closure of courts or suspension of the rules, as they must seek approval from the Supreme Court for such a declaration.

The judiciary is studying the future use of remote proceedings in the wake of the pandemic. In the spring of 2021, the Administrative Office of Pennsylvania Courts in conjunction with the Pennsylvania Conference of State Trial Judges established a Remote Proceedings Task Force, and, in June 2021, the Task Force issued a report on the Continued Use of Advanced Communications Technology (ACT) Following the Termination of Judicial Emergencies.

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C. Tips for covering courts in the jurisdiction

Structure of Court System

The Courts of Commons Pleas are the main trial courts of Pennsylvania for both civil and criminal cases. They are organized into 60 judicial districts, most of which follow the geographic boundaries of Pennsylvania’s counties. Beneath the Court of Common Pleas are “minor courts” – municipal courts in Pittsburgh and Philadelphia, and magisterial district courts elsewhere – which preside over a limited category of proceedings, including civil cases where the amount-in-controversy is $12,000 or less.

The Superior Court is a court of general appellate jurisdiction.

The Commonwealth Court presides only over appeals from state agency decisions and certain cases in which the Commonwealth or another government unit is a party. The Commonwealth Court also has original jurisdiction over certain, specific matters.

Pennsylvania’s highest court is its Supreme Court. It hears appeals from both the Superior Court and the Commonwealth Court. It also has original jurisdiction in certain limited areas, and extraordinary “King’s Bench” jurisdiction to directly take over and resolve “an issue of immediate public importance” from any lower court.

Contact Info

The Office of Communications and Intergovernmental Relations of the Administrative Office of Pennsylvania Courts (“AOPC”) fields inquiries from reporters as part of its duties as media liaison. See Office of Communications and Intergovernmental Relations, The Unified Judicial System of Pennsylvania, http://www.pacourts.us/judicial-administration/office-of-communications-and-intergovernmental-relations (last visited Aug. 16, 2021). In high-profile criminal trials, the AOPC has worked with local courts on issues relating to media coverage. In all cases, however, the court itself makes decisions on access issues.

Online Resource for Case Information

Dockets for matters pending in the Superior Court, Commonwealth Court, and Supreme Court, Criminal Courts of Common Pleas, and minor courts may be accessed online at the web portal for The Unified Judicial System of Pennsylvania: https://ujsportal.pacourts.us/CaseSearch (last visited Aug. 16, 2021). Many counties also make their Court of Common Pleas dockets for civil cases electronically available.

Decorum Orders in High-Profile Trials

In high-profile criminal trials, courts routinely implement decorum orders governing the conduct of the case and press access to the proceedings. When covering such a trial, it is advisable to inquire with the court whether such a decorum order is in place. Courts in some counties will post relevant decorum order information online.

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Open Courts Compendium

I. Introduction: Access rights in the jurisdiction

A. The roots of access rights

B. Overcoming a presumption of openness

C. Procedural prerequisites to closure

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

A. Media standing to challenge closure

B. Procedure for requesting access in criminal cases

C. Procedure for requesting access in civil matters

D. Obtaining review of initial court decisions

III. Access to criminal proceedings

A. In general

B. Pretrial proceedings

C. Criminal trials

D. Post-trial proceedings

E. Appellate proceedings

IV. Access to criminal court records

A. In general

B. Arrest records

C. Dockets

D. Warrants, wiretaps and related materials

E. Discovery materials

F. Pretrial motions and records

G. Trial records

H. Post-trial records

I. Appellate records

J. Other criminal court records issues

V. Access to civil proceedings

A. In general

B. Pre-trial proceedings

C. Trials

D. Post-trial proceedings

E. Appellate proceedings

VI. Access to civil records

A. In general

B. Dockets

C. Discovery materials

D. Pre-trial motions and records

E. Trial records

F. Settlement records

G. Post-trial records

H. Appellate records

I. Other civil court records issues

VII. Jury and grand jury access

A. Access to voir dire

B. Juror identities, questionnaires and other records

C. Grand jury proceedings and records

D. Interviewing jurors

VIII. Proceedings involving minors

A. Delinquency

B. Dependency

C. Other proceedings involving minors

D. Prohibitions on photographing or identifying juveniles

E. Minor testimony in non-juvenile courts

IX. Special proceedings

A. Tribal Courts in the jurisdiction

B. Probate

C. Competency and commitment proceedings

D. Attorney and judicial discipline

E. Immigration proceedings

F. Other proceedings

X. Restrictions on participants in litigation

A. Media standing to challenge third-party gag orders

B. Gag orders on the press

C. Gag orders on participants

D. Interviewing judges

XI. Other issues

A. Interests often cited in opposing a presumption of access

B. Cameras and other technology in the courtroom

C. Tips for covering courts in the jurisdiction