Access to Judicial Records

Courts generally recognize two independent rights of public Access to Judicial Records, one stemming from the common law and one from the First Amendment. Both are predicated on furthering government accountability.

The common law right originated before the First Amendment and is broader in scope; however, as with any common law right, it can be overridden by rule or statute. The Supreme Court recognized in Nixon v. Warner Communications, Inc., 453 U.S. 589 (1978), that the common law creates a presumption of Access to Judicial Records. But the Court denied access to White House audiotapes on grounds of supervening statute and declined to ‘‘delineate precisely the contours of the common-law right.’’

Common-law access is decided case by case, entrusted to the discretion of the trial court, and privileged by high deference on appeal. Access is determined by balancing public interests in disclosure, such as understanding of the judiciary or of historical events, against potential ills of disclosure, such as invasion of privacy, promotion of scandal, dissemination of defamation, or revelation of trade secrets.

The Supreme Court has not explicitly recognized a First Amendment right of Access to Judicial Records, but lower courts have found the right implicit in the Court’s release of transcripts after access to proceedings was unconstitutionally denied in the Press- Enterprise cases. To analyze First Amendment access, courts employ the experience and logic test propounded in Richmond Newspapers v. Virginia, Inc., 453 U.S. 589 (1978), for access to proceedings. As such, fewer records are covered. But access denial cannot be ordained by statute and merits no deference on appeal.

RICHARD J. PELTZ

Cases and Statutes Cited

• Nixon v. Warner Communications, Inc., 453 U.S. 589 (1978)
• Press-Enterprise Co. v. Superior Court (I), 464 U.S. 501 (1984)
• Press-Enterprise Co. v. Superior Court (II), 478 U.S. 1 (1984)
• Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555 (1980)

See also Cameras in the Courtroom; Discovery Materials in Court Proceedings; Duty to Obey Court Orders; Gag Orders in Judicial Proceedings; Media Access to Information; Media Access to Judicial Proceedings; Nixon, Richard Milhous; Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555 (1980); Right of Access to Criminal Trials; Sealed Documents in Court Proceedings; State Courts