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FOI and the Courts
— Does the FOIA cover federal courts?
— Is every trial and court proceeding open?
— Can judges make court records secret?
— Why aren’t recording devices allowed in federal courts?
— What about state and local courts?
— Can a reporter or the public challenge a judge's secrecy order?



Does the FOIA cover federal courts?

No. Federal courts are not covered by the FOIA. However, under the First Amendment the public and the news media have a right to attend trials and hearings in most cases.

Court files also are presumed to be open to the public, but not necessarily under the First Amendment. The right to inspect those files may be rooted in case law or court procedural rules. Federal courts themselves are not unanimous in where the right emanates from, although federal appellate courts have ruled in favor of the public’s right to have access to court files.

The FOIA also does not cover the Judicial Conference of the United States or the Administrative Office of United States Courts, which govern and provide administrative services to the federal court system. Meetings and records of these organizations are made public to the extent the judiciary sees fit to provide access.

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Is every trial and court proceeding open?

No. Judges presiding over cases are often asked by the parties to close proceedings. However, because most proceedings are presumed to be public, a judge must conclude that closure is necessary to protect a “compelling government interest.” In other words, the judge must decide that openness will harm the parties and the only way to prevent the harm is to make the information secret.

Judges may order participants in a case – lawyers, law enforcement personnel, witnesses, litigants, etc. – not to discuss the case with non-participants outside of the courtroom. These orders, referred to as “gag orders,” may seriously restrict public access to information about the case. How far judges can go in barring public comment is an open question under federal case law, but judges have the power to impose limits on participants, but not on the media.

There is no public right of access to proceedings that traditionally have been secret, such as grand jury sessions.

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Can judges make court records secret?

Judges also may be asked to seal court records in a given case. Again, the judge must determine that there is good cause for secrecy and must cite a compelling government interest before making records secret.

In 2001, the Judicial Conference ruled that the federal courts implement an electronic filing system in which most court documents will be filed and stored on computers.

Under this system, the public will have access over the Internet to federal court files to the same extent the files are available for review at the court clerk’s office. In other words, if you can walk into the clerk’s office and see a document, you will be able to see the same document through the Internet.

Initially, this rule will apply to civil, bankruptcy, tax and appeals cases, but not to criminal cases in the U.S. district courts.
(NOTE: Users must register for Web service.)

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Why aren’t recording devices allowed in federal courts?

Although reporters can attend federal court proceedings and cover them, the visual media are barred from bringing their cameras and tape recorders into courtrooms. The media, Congress and some federal judges have advocated permitting electronic coverage, which is allowed on a limited basis in most states’ courts, but the federal courts are not yet open to the electronic media.

At this writing, Congress is considering a bill (S-986) to grant federal judges the discretion to open their courtrooms to cameras and recording devices. The bill also would instruct the Judicial Conference to draw up guidelines for the use of recording devices in federal courts.

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What about state and local courts?

Only a few state FOI laws apply to the courts. However, state courts, like their federal counterparts, are required by the First Amendment to provide public access to most proceedings and, under similar principles, to most court records.

Grand jury sessions and other proceedings traditionally held behind closed doors, such as juvenile and adoption cases, are not public under the First Amendment. However, some states have statutes providing limited access.

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Can a reporter or the public challenge a judge’s secrecy order?

Yes. It is important for the news media and the judge to understand that the public, including reporters, may challenge secrecy orders, even though they are not parties to the case over which the judge is presiding. (In legal terms, the public and media have “standing” as legitimate courtroom participants.)

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