Sealed Documents in Court Proceedings

Whether the media should have access to pleadings filed under seal in court proceedings has been a debated issued in many cases. The argument by media in court proceedings is that all filed court documents are presumptively open to the public. In many cases, for example United States v. McVeigh, 918 F. Supp. 1452 (W. D. Okla. 1996), Associated Press v. United States District Court for the Central District of California, 705 F.2d 1143, 1145 (9th Cir. 1983), and Seattle Times Co. v. United States District Court for the Western District of Washington, 845 F.2d 1513, 1517 (9th Cir. 1988), the media has based its claim on the common law right of access to court documents, the qualified First Amendment right of access to court proceedings, and the extension of this qualified First Amendment right to court documents. The media has maintained that in the event any proceedings or documents are to be sealed, the public should be given the opportunity to object (McVeigh, 918 F. Supp. 1452).

Defendants and parties on the side opposite the media have argued that unsealing court documents would divulge attorney work product, give insight to the strategy of the defense, and deprive a party of an opportunity to present a fair defense as guaranteed in cases such as Washington v. Texas, 388 U.S. 14, 19 (1967) and Crane v. Kentucky, 476 U.S. 683, 690 (1986). If, after the parties have been required to demonstrate justification for sealing or closure, the court, then, rules in favor of closure, the court will make a specific finding on the record to support its decision, as outlined by the Fourth Circuit in In re Washington Post Co., 807 F.2d 383, 390-91 (9th Cir. 1986). Although, historically, there has existed a general policy of openness at (criminal) court proceedings, the ‘‘experience and logic’’ test, as stated in Press Enterprise Co. v. Superior Court, 478 U.S. 1 (1986) (‘‘Press Enterprise II’’) has shown that publicity may threaten a defendant’s right to a fair trial, and, in those cases, the defendant’s rights will override the qualified First Amendment right of access.

Press Enterprise II recognizes a qualified right of access to court proceedings but holds this common law right subject to the supervisory powers of each individual court. Closure is also permitted in cases where it would be ‘‘essential to preserve higher values and is narrowly tailored to serve that interest’’ (United States v. McVeigh, 918 F. Supp. 1452, 1463 [W.D. Okla. 1996] [Oklahoma City bombing case trial]). Although the public possesses a legitimate interest in court proceedings, the timing of the disclosure to the public is a significant factor in the balancing of the affected interest. The stage of the proceedings may determine the questions of access (Id. at 1464).

The approach that has been adopted by courts to determine whether previously sealed documents should be unsealed and whether future documents should be sealed consideration of the following factors together. First, the court determines whether a matter involves an activity within the tradition of free public access to information concerning criminal prosecutions. Second, the court looks to see whether public access will play a significant positive role in the activity and in the functioning of the process. Third, the court decides whether there is a substantial probability that some recognized interest of higher value than public access to information would be prejudiced or adversely affected by the disclosure. Fourth, the court inquires whether the need for protection of that interest overrides the qualified First Amendment right of access. Finally, the court determines whether closure is essential to protect the interest considering all reasonable alternatives.

The debate of whether the media should have access to sealed documents in court proceedings has been answered by the courts in a way to try to achieve the correct balance of the interests of all parties. The general rule that has developed is that proceedings are presumptively open to the public, but are closed when cause is shown. STEPHEN

JONES and DEANNA JUHL

References and Further Reading

• Jones, Stephen, McVeigh, McJustice, McMedia, The University of Chicago Legal Forum, Volume 1998: 53–108.

Cases and Statutes Cited

• Associated Press v. United States District Court for the Central District of California, 705 F.2d 1143 (9th Cir. 1983)
• Crane v. Kentucky, 476 U.S. 683 (1986)
• In re Washington Post Co., 807 F.2d 383 (4th Cir. 1986)
• Press Enterprise Co. v. Superior Court, 478 U.S. 1 (1986) (‘‘Press Enterprise II’’)
• Seattle Times Co. v. United States District Court for the Western District of Washington, 845 F.2d 1513 (9th Cir. 1988) United States v. McVeigh, 918 F. Supp. 1452 (W.D. Okla 1996)
• Washington v. Texas, 388 U.S. 14 (1967)