The Right to Public Access in the Courtroom Extends to Documents

Grube v. Trader (HSC June 5, 2018)
Background. Honolulu Police Department Officer Alan Ahn and his girlfriend, Tiffany Masunaga, were indicted with multiple drug offenses. Ahn pleaded no contest, a rarity in Honolulu, and was sentenced to probation for four years with 60 days jail. The public records, however, reflect that Ahn’s case was still pending and does not show the change of plea and sentence. The circuit court held a subsequent hearing that started at 4:00 p.m. The record is unclear what happened at the hearing, but afterwards, the circuit court issued an order sealing the entire Ahn and Masunaga case. The order was later superseded by another order sealing only “those documents, court minutes, transcripts, and other information relating to the” 4 p.m. hearing. The circuit court vaguely referred to an ongoing investigation and the need for secrecy.

About a year later, NickGrube, a reporter for Civil Beat, filed a motion to unseal “whatever documents were sealed” based on the constitutional right to access. At the hearing on the motion, Grube said that he was appearing pro se. The circuit court concluded that he needed to get an attorney. The hearing was continued. In the interim, Ahn and Masunaga filed statements of no opposition to Grube’s motion. Masunaga stated that she was not completely advised by her prior counsel about the motion to seal and opined that it was done to protect individuals related to the prosecutor that was assigned to the case, whom her prior counsel was also representing in federal court. The prosecution opposed the motion.

At the second hearing, Grube showed up with a lawyer representing him in his personal capacity and not through Civil Beat. The prosecution argued that there was still an “ongoing investigation,” but did not provide any details. The circuit court denied the motion to unseal on the grounds that it accepted “the prosecutor’s representations.” Grube petitioned to the Hawaii Supreme Court.

Your Constitutional Right to Access Court Proceedings . . . The First Amendment to the United States Constitution and Art. I, Sec. 4 of the Hawaii Constitution guarantee the public a right to access court proceedings in criminal cases. Oahu Publications, Inc. v. Ahn, 133 Hawaii 482, 494, 331 P.3d 460, 472, 474 (2014). This right is not limited to sitting in the courtroom and watching a trial. In re: The Hearld Co., 734 F.2d 93, 98 (2d Cir. 1984). This right to access includes every court proceeding and the records thereof. Ahn, 133 Hawaii at 498-499, 331 P.3d at 476-477.

These rights enshrine a deeply ingrained mistrust of secret trials. Gannett Pac. Corp. v. Richardson, 59 Haw. 224, 228, 580 P.2d 49, 54 (1978). They also serve as a “safeguard of integrity of our courts.” Ahn, 133 Hawaii at 494-495, 331 P.3d at 472-473. Public access to the courts is designed to curb “unfairness, discrimination, undue leniency, favoritism, and incompetence” in our judicial system. Id. at 495, 331 P.3d at 473. It is “important to the liberty of the people.” Terr. v. Scharsch, 25 Haw. 429, 436 (1920).

. . . But it is not Absolute. The right to access court proceedings may be set aside and a proceeding can be conducted in camera with relevant documents secured under seal when procedural and substantive requisites are met. The HSC addressed each in turn.

The Procedural Hurdles: Notice to the Public and its Opportunity to Object. “[P]rocedural prerequisites to entry of an order closing a criminal proceeding to the public are (1) those excluded from the proceeding must be afforded a reasonable opportunity to state their objections; and (2) the reasons supporting closure must be articulated in findings.” Ahn, 133 Hawaii at 497-498, 331 P.3d at 475-476. Under the first requirement, the public must be afforded notice of the closure and an opportunity to be heard. Phoenix Newspapers, Inc. v. U.S. Dist. Court for Dist. of Ariz., 156 F.3d 940, 951 (9th Cir. 1998). The notice must be “calculated to inform the public that its constitutional rights may be implicated in a particular criminal proceeding.” United States v. Criden, 675 F.2d 550, 559 (3d Cir. 1982). And so, motions requesting closure of proceedings, including sealing of records, must be docketed well in advance before acted upon. United States v. Brooklier, 685 F.2d 1162, 1168 (9th Cir. 1982).

The HSC held that the circuit court did not follow the procedural requisites. There was no notice to the public that an entire file was going to be sealed and there was no chance for the public to object. Moreover, the hearing took place on a Friday at 4:00 p.m. The circuit court’s handling of this was “plainly insufficient” in complying with the procedure in Ahn.

The Substantive Hurdle: Closure Advances a “Compelling Interest.” Once the procedural prerequisites are met, the court must examine whether sealing or closing off the public’s constitutional right to access is justified. Closure of proceedings must be “essential to preserve higher values” and are “narrowly tailored” to serve that interest. Ahn, 133 Hawaii at 498, 331 P.3d at 476. The court must examine three factors: (1) closure advances a compelling interest; (2) “there is a substantial probability that, in the absence of closure, this compelling interest would be harmed; and (3) there are no alternatives to closure that would adequately protect the compelling interest.” Id. at 497-498, 331 P.3d at 475-476. If the court finds that closure is necessary after examining these factors, it must issue specific findings. Id. at 507, 331 P.3d at 485.

Identifying the “Compelling Interest.” The HSC offered further guidance on these three factors. It noted that for the first factor, the “compelling interest” must bear “such gravity as to overcome the strong presumption” in favor of openness. Moana v. Wong, 141 Hawaii 100, 111, 405 P.3d 536, 547 (2017). While privacy rights “may in some instances” arise to a compelling interest, the HSC noted that “preserving the comfort or official reputations of the parties is not a sufficient justification.” It went further to state that “the interest must be of such consequence as to outweigh both the right of access of individual members of the public and the general benefits to public administration afforded by open trials.”

In this case, both Grube and the prosecution noted that the interest identified by the circuit court—preserving the integrity of an ongoing investigation—could in some cases be sufficient to keep something sealed. However, there was no specificity in the findings of the court. Without the details, the circuit court did not overcome the presumption of openness in our judicial system.

“Substantial Probability” of Harm to the Compelling Interest. The HSC examined the second factor. There must be a “substantial probability” of “irreparable harm” to the compelling interest. A “reasonable likelihood” won’t cut it. Press-Enter Co. v. Superior Court of Cal. for Riverside City, 478 U.S. 1, 15 (1986). The HSC took issue with the circuit court’s finding that amounted to nothing more than a “bare recitation of the legal standard.” This was inadequate for the HSC.

Narrowly Tailoring: no Alternative. The final factor requires findings showing that there are no less restrictive alternatives to closure or sealing. Complete and total sealing is inappropriate when there is a feasible alternative that would protect the compelling interest. The HSC again took issue with the circuit court’s statement that there were no alternatives available other than sealing the record. The classic example of a less drastic measure is redaction. The circuit court did not explain why redacting was not feasible.

The Public is not just the Media. Grube also challenged the circuit court’s requirement that he get a lawyer. The right to access judicial proceedings is not limited to news media and is vested to any member of the public. Ahn, 133 Hawaii at 496, 331 P.3d at 474. The right to represent one’s self extends to civil and criminal proceedings. State v. Hutch, 75 Haw. 307, 318, 861 P.2d 11, 18 (1993); In re: Ellis, 53 Haw. 23, 29, 487 P.2d 286, 290 (1971). The HSC held that Grube had the right to seek access not as a member of the news, but as a person. And he did not have to get a lawyer.

Is no Record Safe? The strong presumption for open courts in criminal proceedings begs some serious questions. Ask anyone who practices criminal law in Hawaii and they will tell you that there are plenty of records that are kept under seal: the exhibit underlying a Felony Information, applications for search warrants, the names of complainants in sexual assault prosecutions, and, of course, the secret recommendations for sentencing and probation revocations from probation officers. How can these items trump the public’s constitutional right to access them? And—especially for the last item—is this the way the defense (and the prosecution) can finally get access to those secret letters?

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