Public Access Doctrine

Public access doctrine establishes a right of the public to access documents and proceedings of criminal and civil court cases. The doctrine has its origin in the common law but is strengthened by the First Amendment.

There are several justifications for public access doctrine:

• enhance public confidence in the judiciary.
• allow the public learn about matters affecting them, such as crime.
• courts are part of government and decisions made by the public about government are better when they are informed.

Several decisions have urged courts to require discovery to take place without confidential agreements. See, e.g., Wilk v. American Med. Ass'n, 635 F.2d 1295, 1299 (7th Cir. 1980) (holding that pretrial discovery should take place in public view, without confidentiality, unless there are strong reasons to limit access by the public to the information); Westchester Radiological Ass'n v. Blue Cross/Blue Shield of Greater N.Y., Inc., 138 F.R.D. 33, 36 (S.D.N.Y. 1991) (holding that discovery "should be publicly available whenever possible," unless a good cause is shown for confidentiality); Omega Homes, Inc. v. Citicorp Acceptance Co., 656 F. Supp. 393, 403 (W.D. Va. 1987) (stating that discovery "should be available to the public" unless it falls within one of the limitations of Fed. R. Civ. P. Rule 26(c)).

Fed. R. Civ. P. 26(c)[edit]

The Federal Rules of Civil Procedure establish that a protective order may be granted only "for good cause" as follows:

(c) Protective Orders.

(1) In General. A party or any person from whom discovery is sought may move for a protective order in the court where the action is pending--or as an alternative on matters relating to a deposition, in the court for the district where the deposition will be taken. The motion must include a certification that the movant has in good faith conferred or attempted to confer with other affected parties in an effort to resolve the dispute without court action. The court may, for good cause, issue an order to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense, including one or more of the following:

(A) forbidding the disclosure or discovery;

(B) specifying terms, including time and place or the allocation of expenses, for the disclosure or discovery;

(C) prescribing a discovery method other than the one selected by the party seeking discovery;

(D) forbidding inquiry into certain matters, or limiting the scope of disclosure or discovery to certain matters;

(E) designating the persons who may be present while the discovery is conducted;

(F) requiring that a deposition be sealed and opened only on court order;

(G) requiring that a trade secret or other confidential research, development, or commercial information not be revealed or be revealed only in a specified way; and

(H) requiring that the parties simultaneously file specified documents or information in sealed envelopes, to be opened as the court directs.

Federal Administrative Proceedings[edit]

Federal agencies are governed by the Administrative Procedures Act. 5 U.S.C. § 552. This law requires rules of general applicability to be issued after rulemaking proceedings that are documented in the Federal Register. In addition, many federal agencies conduct adjudications (in some cases before hearing officers or Administrative Law Judges). For these, Section 552 provides:

(2) Each agency, in accordance with published rules, shall make available for public inspection and copying—

(A) final opinions, including concurring and dissenting opinions, as well as orders, made in the adjudication of cases; (B) those statements of policy and interpretations which have been adopted by the agency and are not published in the Federal Register; (C) administrative staff manuals and instructions to staff that affect a member of the public; (D) copies of all records, regardless of form or format, which have been released to any person under paragraph (3) and which, because of the nature of their subject matter, the agency determines have become or are likely to become the subject of subsequent requests for substantially the same records; and (E) a general index of the records referred to under subparagraph (D);

Currently, most agencies (like the federal courts) make their decisions available over the internet. Many agencies also publish bound printed copies of past decisions which are available from the Government Printing Office.

See also[edit]

• COMMENT: Taming Technology in the Context of The Public Access Doctrine: New Jersey's Amended Rule 1:38, 41 Seton Hall L. Rev. 1071 (2011)
• SECRECY BY CONSENT: THE USE AND LIMITS OF CONFIDENTIALITY IN THE PURSUIT OF SETTLEMENT, 74 Notre Dame L. Rev. 283 (1999).