By Theresa Jauregui
The public has a constitutional right to access judicial adjudicative records. Nonetheless, access is not unlimited, and the question of where the line is drawn is often complicated.
The objective of this article and self-study test is to provide an overview of the principles governing public access to judicial records in civil and criminal cases. Readers will learn about how the First Amendment and the common law have been interpreted to grant access, and the courts' inherent power to seal records.
This article does not cover public access to judicial administrative records under California Rule of Court 10.500. Rule 10.500 does not apply to, modify, or otherwise affect existing law regarding public access to adjudicative records. California Rules of Court 10.500(a), (b)(1)-(2).
Typically, court records that have been afforded First Amendment protection include transcripts of proceedings that the public has a First Amendment right to attend, documents submitted in connection with those proceedings, and documents filed in court as a basis for adjudication.
For example, in Press-Enterprise Co. v. Superior Court, 464 U.S. 501 (1984), the U.S. Supreme Court held that the public has a First Amendment right to view the transcripts of voir dire proceedings because the process of jury selection has been presumptively open to the public. This holding has been extended to render juror questionnaires also open to the public. Lesher Communications Inc. v. Superior Court, 224 Cal.App.3d 774 (1990).
Similarly, in In re Marriage of Burkle, 135 Cal.App.4th 1045 (2006), the Court of Appeal held that since the public has a First Amendment right to attend divorce proceedings, court records in divorce cases are also presumptively open to the public. The appellate court concluded that "[n]o meaningful distinction [could] be drawn between the right of access to courtroom proceedings and the right of access to court records that are the foundation of and form the adjudicatory basis for those proceedings."
The Burkle court went on to hold that Family Code Section 2024.6 was unconstitutional on its face because it permitted the broad sealing of court records containing the parties' financial assets and liabilities, including those records used at trial or submitted as a basis for adjudication. The court found that Section 2024.6 was not narrowly tailored to serve the privacy interests it intended to protect and that less restrictive means of protecting privacy interests were available. California Rules of Court 2.550 and 2.551 provide standards and procedures for the courts to use when a request is made to seal a record, thereby constitutionally complying with Burkle.
In contrast, the 1st District Court of Appeal held that there is no First Amendment right to inspect the transcripts of grand jury proceedings after an indictment has issued because grand jury proceedings have been historically closed to the public, and there is no First Amendment right to attend such proceedings. Alvarez v. Superior Court, 154 Cal.App.4th 642 (2007) held that a defendant seeking to prevent dissemination of grand jury transcripts under Penal Code Section 938.1 need only show a "reasonable likelihood" that their release will prejudice the defendant's right to a fair trial.
In keeping with these principles, federal circuit courts have extended the First Amendment right of access to apply to a wide variety of proceedings, including:
Documents submitted in connection with plea and sentencing hearings. In re Washington Post Co., 807 F.2d 383 (4th Cir. 1986); Oregonian Publishing Co. v. United States Dist. Court, 920 F.2d 1462 (9th Cir. 1990).
Documents filed in connection with summary judgment motions. Rushford v. New Yorker Magazine Inc., 846 F.2d 249 (4th Cir. 1988); Matter of Continental Illinois Secs. Litig., 732 F.2d 1302 (7th Cir. 1984).
Documents filed in civil litigation. Brown & Williamson Tobacco Corp. v. F.T.C., 710 F.2d 1165 (6th Cir. 1983).
The post-trial transcript of a hearing held to investigate threats made to jurors. Phoenix Newspapers Inc. v. United States Dist. Court, 156 F.3d 940 (9th Cir. 1998).
The transcript of proceedings concerning jury misconduct. United States v. Edwards, 823 F.2d 111 (5th Cir. 1987).
Docket sheets in criminal and civil cases. Hartford Courant Co. v. Pellegrino, 380 F.3d 83 (2nd Cir. 2004).
Legal memoranda filed with the court supporting or opposing a motion. In re Providence Journal Co. Inc., 293 F.3d 1 (1st Cir. 2002).
In order to deny public access to these judicial records, both the substantive and procedural requirements of the First Amendment, as set forth in Press-Enterprise Co. v. Superior Court, 478 U.S. 1 (1986) (Press-Enterprise II), must be met. That is, the person seeking closure must advance a compelling interest that he or she is likely to be prejudiced, and the closure must be no broader than necessary to protect that interest. The trial court must also consider reasonable alternatives to closing the record, and it must make findings adequate to support the closure.
The First Amendment does not compel public access to documents that are neither filed with the court nor submitted as a basis for adjudication. (NBC Subsidiary (KNBC-TV) Inc. v. Superior Court, 20 Cal.4th 1178 (1999). Oziel v. Superior Court, 223 Cal.App.3d 1284 (1990), held that there was no First Amendment right of access to items seized under a search warrant that were not offered as an exhibit nor admitted into evidence in any court proceeding. The specific issue in Oziel was whether the public had a right to pretrial disclosure of videotapes containing footage of the execution of a search warrant by a special master, and the appellate court denied access.
Under the common law, judicial records are open to the public unless they are specifically exempted from disclosure by statute or are sealed by the court due to the need for confidentiality. McGuire v. Superior Court, 12 Cal.App.4th 1685 (1993), citing Estate of Hearst, 67 Cal.App.3d 777 (1977). In Gilbert v. National Enquirer Inc., 43 Cal.App.4th 1135 (1996), the appellate court held that the plaintiff in a defamation suit failed to show that the court record fell under a specific exemption that would make the record nonpublic. The U.S. Supreme Court has likewise found that under the common law, judicial records are presumptively open. Nixon v. Warner Communications Inc., 435 U.S. 589 (1978).
The presumption of openness allows a trial court limited authority to preclude access to judicial records. Absent a contrary statute or countervailing public policy requiring the court to seal the record, the right to inspect public records must be freely allowed. In KNSD Channels 7/39 v. Superior Court, 63 Cal.App.4th 1200 (1998), the appellate court held that the trial court must make evidence previously presented to a jury in open court reasonably available to the public, absent a countervailing interest.
A judicial record is the record or official entry of a court proceeding, or of the official acts of a judicial officer. Code of Civil Procedure Section 1904. Included in this definition are official court minutes, written orders and dispositions, official reports of oral proceedings, documents filed in or received by the court (such as pleadings and motions), evidence admitted in court proceedings, and the master calendar. Copley Press Inc. v. Superior Court, 6 Cal.App.4th 106 (1992). In contrast, preliminary drafts, personal notes, and rough records that "do not speak for the court and do not constitute court action" are not official judicial records open to public inspection. For example, personal bench notes kept by the judge so as to remind him or her of the aspects of the case he or she thought important are not part of the official court record. People v. Lewis, 39 Cal.4th 970 (2006).
Several statutory exemptions to public disclosure of judicial records impose a complete prohibition on disclosure, while others merely restrict the conditions under which a record may be disclosed to the general public. For example, Penal Code Section 851.8 prohibits disclosure of arrest records sealed upon a finding of factual innocence, while Penal Code Section 938.1(b) merely restricts the disclosure of the records of grand jury proceedings until 10 days after a copy of the indictment has been delivered to the defendant or the defendant's attorney.
As held by the Court of Appeal in Estate of Heasrt, a court has inherent power to control its records to protect the rights of parties before it when there is a countervailing interest. The U.S. Supreme Court in Nixon v. Warner Communications Inc. reaffirmed that a court possesses broad discretion to control its records to protect the rights of litigants.
Thus, even where there is no statutory exemption to public disclosure, the court may temporarily limit access to its records by sealing the court record. For example, in Cromer v. Superior Court, 109 Cal.App.3d 728 (1980), the court sealed, pending trial, a portion of the preliminary hearing transcript that contained the defendant's confession. The court concluded that the disclosure of the confession would prejudice the defendant's right to a fair trial, and that no other alternative would reasonably ensure the defendant a fair trial.
Similarly, in Allegrezza v. Superior Court, 47 Cal.App.3d 948 (1975), the trial court denied pretrial disclosure of the purported confession of a defendant awaiting trial for murder because it found that disclosure would deny the defendant a fair trial. In Rosato v. Superior Court, 51 Cal.App.3d 190 (1975), the appellate court approved the temporary sealing of a grand jury transcript during a criminal trial to protect the defendant's right to a fair trial free from adverse advance publicity. In Estate of Hearst, the appellate court approved the temporary sealing of probate files due to terrorist threats against family members.
The court's inherent power to seal court records has also been used to protect an individual's constitutional right to privacy. In Westbrook v. County of Los Angeles, 27 Cal.App.4th 157 (1994), the court found that the defendant's right to privacy, which protects against unauthorized disclosure of criminal history records, prohibits disclosure of a compilation of the information stored in the Los Angeles County Municipal Court Information computer system to persons other than those authorized by Penal Code Sections 13300 et seq. Further, in Oziel v. Superior Court, the court found that a homeowner's constitutional right to privacy outweighed the public's interest in obtaining pretrial disclosure of videotapes containing footage of the execution of a search warrant.
A stipulation between the parties to an action to seal the court file is not good cause to seal the record. The record may be sealed only after a determination that the private interests of the parties outweigh the public interest in access to the court record. Wilson v. Science Applications Int'l Corp., 52 Cal.App.4th 1025 (1997). The Court of Appeal in Mary R. v. B. & R. Corp., 149 Cal.App.3d 308 (1983), observed that it is doubtful that a trial court could find good cause to seal all court records solely because one party paid money to the other or because the parties so stipulated.
Because most orders sealing the court record are temporary in nature, the public or press may challenge the continued need for maintaining the confidentiality of a court record. See Wilson v. Science Applications Int'l Corp. As noted by Wilson, members of the public may challenge the continued need for an order no longer subject to direct review by filing a motion for reconsideration pursuant to Code of Civil Procedure Section 1008. California Rules of Court 2.550 and 2.551 provide standards and procedures for the courts to use when a request is made to seal a court record that would otherwise be public or to unseal a record previously ordered sealed.