The Florida Bar
www.floridabar.org
Judicial Access: The Reporter's Right of Access To The Judicial System

by Sanford L. Bohrer, Karen Williams Kammer, and Amanda Hill

Updated December 2012

I. Summary
    A. Question: When may a party or the court deny the press or public access to judicial proceedings or records?
    B. Answer: Only if the person seeking to deny access produces evidence that satisfies each part of the following three-part test:
II. Access To Florida State Court Proceedings And Records
III. Access To Federal Court Proceedings And Records
IV. What You Can Do:
    A. If A Judicial Proceeding Is Closed Or About To Be Closed
    B. If You Are Denied Access To Court Records
    C. If A "No Print" Order Is Entered
    D. If A Judge Orders Trial Participants Not To Discuss The Case With The Press
General Tips
About the Authors
Footnotes



I. SUMMARY.

A. Question: When may a party or the court deny the press or public access to judicial proceedings or records?

B. Answer: Only if the person seeking to deny access produces evidence that satisfies each part of the following three-part test:

1. There is a compelling need for closure, such as imminent danger to the administration of justice in a criminal case;

2. There are no reasonable alternatives to a denial of access; and

3. The denial of access is no broader than necessary to satisfy the need for closure.

In short, judicial proceedings and records are presumed to be open, and the person trying to deny access bears a heavy burden of overcoming the presumption. Although Florida's Constitution and statutes grant broad access to most governmental meetings and the records of the executive, legislative, and judicial branches, it has been left to the courts to determine the narrow circumstances under which court proceedings and records may be kept from public view. Article 1, Section 24 of the Florida Constitution, making access to government meetings and records of all three branches a constitutional right, was added in 1992. See also Sec. 286.011, Fla. Stat. (2012) (the Open Meetings Act); Chapter 119, Fla. Stat. (2012) (the Public Records Act). In 2005, Florida's policy on open records was amended to clarify that all state, county, and municipal records are open for personal inspection "and copying." Compare § 119.01(1), Fla. Stat. (2004), with § 119.01(1), Fla. Stat. (2005). (For more information on Florida's open meetings and public records acts, see those chapters elsewhere in this Handbook).


II. ACCESS TO FLORIDA STATE COURT PROCEEDINGS AND RECORDS.

The Florida Supreme Court first articulated the right of the press to attend all judicial proceedings in State ex rel. Miami Herald Publishing Co. v. Mclntosh, 340 So. 2d 904 (Fla. 1977). a case involving the trial of three mortgage brokers and three brokerage firms accused of securities fraud. The defendants succeeded in convincing the trial judge to enter an order (a) preventing the press from publishing what it learned in open court but in the absence of the jury and (b) "gagging" all trial participants. The Florida Supreme Court reversed the order as an invalid "prior restraint" on the press. In so doing, it recognized the right of the press to gather news and to have access to all judicial proceedings:

It has been recognized in Florida and elsewhere that the news media, even though not a party to litigation below, has standing to question the validity of an order because its ability to gather news is directly impaired or curtailed. This is so, because the public and press have a right to know what goes on in a courtroom whether the proceeding be criminal or civil. A member of the press or newspaper corporation may be properly considered as a representative of the public insofar as enforcement of public right of access to the court is concerned; and the public and press have a fundamental right of access to all judicial proceedings. In determining restrictions to be placed upon access to judicial proceedings, the court must balance the rights and interest of the parties to litigation with those of the public and press. Id. at 908.

The court found that even the temporary withholding of information from the press could not be justified:

The inconvenience suffered by jurors who are sequestered to prevent exposure to excluded evidence which may be published in the press is a small price to pay for the public's right to timely knowledge of trial proceedings guaranteed by freedom of the press. It is argued that a temporary withholding of news from the public may aid in assuring a fair trial and that if the State and defendant agree to muzzling the press no one else has a right to object. We firmly reject any suppression of news in a criminal trial except in those rare instances such as national security and where a news report would obviously deny a fair trial as stated above in Federal cases.

Freedom of the press is not, and has never been a private property right granted to those who own the news media. It is a cherished and almost sacred right of each citizen to be informed about current events on a timely basis so each can exercise his discretion in determining the destiny and security of himself, other people, and the Nation. News delayed is news denied. To be useful to the public, news events must be reported when they occur. Whatever happens in any courtroom directly or indirectly affects all the public. To prevent star chamber injustice the public should generally have unrestricted access to all proceedings. Id. at 910.

But the court made clear the right of access was not absolute. Thus, while "the public and press have a fundamental right of access to all judicial proceedings, . . . [i]n determining restrictions to be placed upon access to judicial proceedings, the Court must balance the rights and interests of the parties to litigation with those of the public and press." Id. at 908.

A Florida court recently relied on this principle of balancing the rights of the parties with those of the public and press when it affirmed a trial court's order to withhold publishing the location of jury selection until the trial began in the highly publicized criminal trial of Casey Anthony. Relying on McIntosh, the court noted the trial court's responsibility to "'protect a [criminal defendant] from inherently prejudicial influences which threaten the fairness of his trial and the abrogation of his constitutional rights.'" WPTV-TV et al. v. State, 61 So. 3d 1191, 1193 (Fla. 5th DCA 2011) (quoting State ex. rel. Miami Herald Publ'g v. McIntosh, 340 So. 2d 904, 909 (Fla. 1977)).

After McIntosh, the Florida Supreme Court adopted a simple three-part test for trial courts. In Miami Herald Publishing Co. v. Lewis, 426 So. 2d 1 (Fla. 1982). the Florida Supreme Court held that those seeking closure of a pretrial hearing in a criminal case must make the following evidentiary showing: Earlier decisions by the district courts of appeal had held prior notice of hearing on a closure request was required. Sentinel Star Co. v. Booth, 372 So. 2d 100 (Fla. 2d DCA 1979);Times Publishing Co. v. Hall, 357 So. 2d 736 (Fla. 2d DCA 1978).

1. Closure is necessary to prevent a serious and imminent threat to the administration of justice;

2. No alternatives are available, other than change of venue, which would protect a defendant's right to a fair trial; and

3. Closure would be effective in protecting the rights of the accused, without being broader than necessary to accomplish this purpose. 426 So. 2d at 3. The Florida Supreme Court has extended the Lewis test to govern decisions whether to deny access to pretrial discovery materials which are also "public records" under Chapter 119, Florida's Public Records Act. See Florida Freedom Newspapers v. McCrary, 520 So. 2d 32 (Fla. 1988). The McCrary situation typically arises in the criminal context: a state attorney holds materials (such as surveillance tapes, witness statements and so on) the defense has asked it to turn over in discovery. Once the defendant makes its discovery request of the state, any member of the press or public may inspect those materials under the Public Records Act unless some other statutory exemption applies.

The press must be given prior notice of such a hearing.

Six years later in a civil case, Barron v. Florida Freedom Newspapers, the Florida Supreme Court made it clear the "strong presumption of public access" applies to "all trials, civil and criminal." The court held that in a civil case, "subject to certain narrowly defined exceptions," the public's right of access to judicial proceedings and records cannot be denied. Barron v. Florida Freedom Newspapers, 531 So. 2d 113 (Fla. 1988). The court emphasized the "heavy burden" on the party seeking closure, and held that, as in criminal cases, the trial court must find there is "no reasonable alternative" to closure and must use the "least restrictive closure necessary." Id. at 118.

One exception to the general rule is depositions. Neither the press nor the public has a right of access to pretrial discovery depositions or to the unfiled transcripts of such depositions in civil or criminal cases. Palm Beach Newspapers, Inc. v. Burk, 504 So. 2d 378 (Fla. 1987). A Florida court recently discussed the rationale for denying access to information obtained through pretrial discovery. See Forrest et. al. v. Citi Residential Lending, Inc. et. al., 73 So. 3d 269, 277 (Fla. 2d DCA 2011) (citing Seattle Times Co. v. Rhinehart et al., 467 U.S. 20 (1984)). Pretrial discovery is generally conducted in private and "much of the information obtained . . . may be unrelated or merely tangentially related to the underlying case so that restraints placed upon discovered, but not yet admitted, information do not restrict a traditionally public source of information.'" Id. (citing Seattle Times Co., 467 U.S. at 33). Beyond excluding pretrial discovery from public disclosure, public access rarely has been denied. It is important to note that in ruling on the access question a court may not inquire as to the purpose for which access is sought. At least one trial court has addressed the issue expressly. Roberts v. Roberts, 23 Med. L. Rptr. 1285 (Fla. 15th Cir. 1994).

With respect to judicial records, in 1992 the Florida Supreme Court adopted a new rule, Rule 2.051 of the Florida Rules of Judicial Administration, renumbered as 2.420 in 2006, which expressly grants the public access to materials in the custody of the court clerk and any other member of the judicial branch subject to certain enumerated exceptions, either listed in the Rule itself or elsewhere. Rule 2.420 was amended in 2007 to require that court orders sealing court records satisfy a test similar to that required for closure of court proceedings. Any "order sealing court records must state, inter alia, the particular grounds for making the court records confidential, that the closure is no broader than necessary, and there are no less restrictive measures available." Carter et al. v. Conde Nast Publ'ns et. al., 983 So. 2d 23, 25-6 (Fla. 5th DCA 2008).

Although Rule 2.420 contemplates granting the public access to materials in the custody of the clerk or a member of the judiciary, an argument may be made that a document could become a public record even if returned to the parties and not filed of record. See Palm Beach Newspapers, Inc. v. Limbaugh, 967 So. 2d 219, 219 (Fla. 3d DCA 2007), reh'g denied (Cope, J., dissenting). If a judge "reviews [a document], initials it, and makes findings about it" during a court proceeding, arguably the document is a public record based on the language of Article I, Section 24 of the Florida Constitution: "a public record is one which is 'made or received in connection with the official business of any public . . . officer . . . of the state,' unless the record has been exempted from public disclosure by statute or another constitutional provision." Id. at 219, 220-21 (quoting Art. I, § 24(a), Fla. Const.).

Although former Rule 2.051 said the public must be given "reasonable notice" of any order closing judicial records, the Supreme Court has said prior notice is not mandatory. Rule 2.051(c)(9)(D) and Commentary. Current Rule 2.240 still does not require prior notice of orders sealing court records in non-criminal cases. Rather, Rule 2.240 provides that notice is required once an order sealing court records in non-criminal cases has already been issued. Rule 2.240(d)(4). Prior public notice of a hearing on a motion to make court records confidential in non-criminal cases is also not required but instead is within the court's discretion. Rule 2.240(d)(2). This contrasts sharply with the procedure for the closure of court proceedings. One seeking access to judicial records must strictly comply with the requirements of Rule 2.420. A Florida court recently affirmed denial of a newspaper publisher's request for access to judicial records because the publisher failed to comply with Rule 2.420's requirement that "'[r]equests for access to records shall be in writing and shall be directed to the custodian.'" Morris Publ'g Group, LLC v. State, 13 So. 3d 120, 122 (Fla. 1st DCA 2009) (quoting Fla. R. Jud. Admin. 2.420(f)(1)).


III. ACCESS TO FEDERAL COURT PROCEEDINGS AND RECORDS.

As with access to Florida courts and their records, federal judicial proceedings and records are presumed to be open to the public except in very narrowly prescribed circumstances. The United States Supreme Court has devised a test to determine when such proceedings and records lawfully may be closed. Not surprisingly, it is very similar to the test Florida courts use:

The circumstances under which the press and public can be barred from a criminal trial are limited; the State's justification in denying access must be a weighty one. Where . . . the State attempts to deny the right of access in order to inhibit the disclosure of sensitive information, it must be shown that the denial is necessitated by a compelling governmental interest, and is narrowly tailored to serve that interest. Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 606-07 (1982). See also Newman v. Graddick, 696 F.2d 796 (11th Cir. 1983).

The presumption of openness may be overcome only by an overriding interest based on findings that closure is essential to preserve higher values and is narrowly tailored to serve that interest. Press-Enterprise Co. v. Superior Court, 464 U.S. 501, 510 (1982) ("Press-Enterprise I"); Press-Enterprise Co. v. Superior Court, 478 U.S. 1 (1986) ("Press-Enterprise II").

Again, as in Florida courts, the person seeking to deny access must produce evidence meeting each part of the test. The Court articulated a four factor test that must be satisfied before the public may be excluded from any stage of a criminal trial: (1) the party seeking closure "must advance an overriding interest that is likely to be prejudiced," (2) "the closure must be no broader than necessary to protect that interest," (3) "the trial court must consider reasonable alternatives to closing the proceeding," and (4) "it must make findings adequate to support the closure." See Presley v. Georgia, 130 S.Ct. 721, 724 (2010) (quoting Waller v. Georgia, 467 U.S. 39, 48 (1984)). Notably, "trial courts are required to consider alternatives to closure even when they are not offered by the parties" because "[t]he public has a right to be present whether or not any party has asserted the right." Id. at 724-5.

Also, not unlike Florida law, our federal courts have held the right to access to judicial records and proceedings does not extend to "information collected through (pretrial) discovery which is not a matter of public record," that is, not yet filed with the court. McCarthy v. Barnett Bank, 876 F.2d 89 (11th Cir. 1989); In re Alexander Grant & Co. Litig., 820 F.2d 352, 354 (11th Cir. 1987). In other words, the press and public have no right to attend depositions or get copies of unfiled deposition transcripts.

The right of access to judicial records has been found under the First Amendment and the common law. Regardless of the source, the courts have held the right of access is presumptive and, absent the required evidentiary showing, access will be granted. United States v. Rosenthal, 763 F.2d 1291 (11th Cir. 1985); Newman v. Graddick, 696 F.2d 796 (11th Cir. 1983).


IV. WHAT YOU CAN DO:

A. If A Judicial Proceeding Is Closed Or About To Be Closed

An attorney or judge proposes closing a hearing or other judicial proceeding just as it is to begin, or a judge tells the press not to print what it just heard or go to jail for contempt. In an emergency, there's little time for reading books or research. The Florida First Amendment Hotline is available at 1-800-337-3518, but there may not be time even for that. Here are some practical tips on what to do:

As noted above, Florida and federal court decisions have recognized that access to judicial proceedings is a fundamental right of the press and public. As to what constitutes a "judicial proceeding," there is some controversy, but for your purposes, you should consider any trial, hearing, or other proceeding which is conducted as part of any lawsuit to be a judicial proceeding. While under certain circumstances a hearing or other pre-trial or post-trial judicial proceedings may be closed to the press and public, such situations are extremely limited. There are virtually no situations in which a trial lawfully can be closed.

1. About To Be Closed

Regardless of whether you are in state or federal court, if a court proceeding has not been closed yet, but closure has been proposed:

1. If there is time to do so, notify your editor or news director and, through her, your lawyer. Even 15 or 30 minutes may be enough for your lawyer to get involved and prevent closure or at least assert your rights.

2. If there is no time, as, for example, where the judge literally is about to rule on a closure request, do not leave the courtroom. Instead have someone else make the call to your editor (for example, if there is more than one reporter present, one can make the call and the rest stay), and take the following steps:

a. On behalf of yourself, your paper or station, and the public, object to the closure on the record (that is, before the judge's court reporter) and ask for the right to be heard through counsel before the closed proceedings begin. You might say something like the following:
I am ___________, a reporter for ___________________, and a citizen of this community. On behalf of myself, my paper [or station], and the rest of the public I object to the proposed closure of this proceeding to the press and public and request an opportunity to be heard through counsel.
If asked the basis for your objection, you should state:
I am not an attorney, but I understand the public has a constitutional and common law right of access to this and all other court proceedings. At the very least, the law requires that a hearing be held, with the press and public having an opportunity to be heard through counsel, prior to closure. I therefore request such a hearing so our attorney can be heard on our behalf.

b. In Florida state courts -- If you have the time, opportunity, and presence of mind, you might advise the court that the Florida Supreme Court in Miami Herald Publishing Co. v. Lewis, 426 So. 2d 1 (Fla. 1982) and Barron v. Florida Freedom Newspapers, 531 So. 2d 113 (Fla. 1988) held there can be no closure until after a hearing, with an opportunity to be heard by the press through counsel, and that the party seeking closure must show:

1. Closure is necessary to prevent a serious and imminent threat to the administration of justice;

2. No alternatives to closure are available, other than a change of venue, which would protect the administration of justice; and

3. Closure would be effective without being broader than necessary to accomplish this purpose.

c. In federal court--If you have the time, opportunity, and presence of mind, you might advise the court that the United States Court of Appeals for the Eleventh Circuit, following an unbroken line of recent cases in the United States Supreme Court, held in Newman v. Graddick, 696 F.2d 796 (11th Cir. 1983), there can be no closure until after a hearing, with an opportunity to be heard by the press through counsel, and that the party seeking closure must show:

1. Closure is necessary to serve a compelling governmental interest (which you could argue is similar to the first part of the Florida state court test); and

2. The closure to be ordered is narrowly tailored to that interest (which you could argue combines the second and third parts of the Florida state court test).

d. If the judge agrees to a hearing, immediately notify your editor or news director. If your paper or station has no regular local attorney, or the attorney is unfamiliar with First Amendment principles, you should consider calling the First Amendment Hotline.

e. If the judge does not agree to a hearing, ask that he or she "stay" (postpone) the proceedings which are about to be closed until your attorney can apply to a higher court for relief. If you can, also request that the judge enter a written order or at least direct the court reporter to provide you with a transcript of your objection and the judge's order.

f. If you are ordered to leave the courtroom (or the judge's chambers, if that is where the proceedings are taking place), even if the judge refused all requests for a hearing and postponement, do not refuse to leave.
2. Already Closed

If closed proceedings already have begun:

1. Notify your editor, news director, and/or lawyer immediately. Send the judge a written objection and request for access to the proceedings. (Any readable handwritten note will do, preferably including the statement suggested above). You should ask a bailiff, the judge's secretary, or other court employee to deliver the written objection and request to the judge immediately. You should also request that the proceedings be stopped until either a hearing is held or an application for review of the court's closure order can be made to a higher court. If possible, keep a copy of your note for your lawyer. As with the "about to be closed" situation, you may need to use the First Amendment Hotline.

2. Just as you should not refuse to leave a courtroom when ordered to do so, do not attempt to force your way into a closed courtroom, although there is no harm in asking.

B. If You Are Denied Access To Court Records

As with court proceedings, there is a presumptive and fundamental right of access to court records. Here are some tips on what to do if access is denied:

1. If you are prevented from inspecting and copying documents of any court, whether state or federal, and there is an immediate need for access (which should be unusual), notify your editor and consider using the First Amendment Hotline. In any event you should consult with your editor.

2. If there is no immediate need, you should do the following:

a. Make a written (preferably typewritten) request for access to the documents. If the records were ordered sealed by a judge, make the request to the judge who issued the order. If it is the clerk who is holding back, direct the request to the clerk.

b. Identify in the request the documents that you seek to inspect as narrowly and with as much detail as possible.

c. Do not state your reason for requesting the documents in your request.

d. If the written request is denied, ask that the denial be put in writing, together with a statement of the reasons for the denial.

e. If the written request is denied, consult with your editor.

If your paper has no regular counsel, or your regular counsel is not familiar with such matters, you and your editor should consider calling the First Amendment Hotline.

C. If A "No Print" Order Is Entered

Virtually all orders directing the press not to print or publish information it has lawfully obtained are unconstitutional "prior restraints." However, you should know that violation of even an obviously invalid order legally subjects you to contempt and jail. If such an order is about to be entered, ask the judge if you might be heard through counsel before the order is entered. You might say something like the following:

I am _______________, a reporter for ________________, and a citizen of this community. On behalf of myself, my paper [or station], and the rest of the public, I object to entry of a "no publish order" and request an opportunity to be heard through counsel.

You should advise the court the law is well settled in this case, citing to him or her the Florida Supreme Court's decision in McIntosh, referred to above. If asked the basis for your objection, you should state:

I am not an attorney, but I understand the U.S. Constitution prohibits entry of the proposed "prior restraint." I am sure our attorney can provide the court with court decisions to that effect. I therefore request a hearing prior to entry of the order so our attorney can be heard on our behalf.

If an order is entered prohibiting you from publishing information you received, you should do the following:

1. Immediately notify your editor or news director, and through her, legal counsel. If you have no local counsel or none conversant with press issues, call the Florida First Amendment Hotline.

2. Request a copy of the order. If the order is not in writing, request that it be put in writing. If the order is entered orally on the record, request that a copy of the transcript be prepared immediately and, if possible, signed by the judge and formally filed with the clerk of the court.

3. Make your request for a copy of the order on the record. If no court reporter is available or if the judge refuses to do so "on the record," deliver a letter to the judge and the clerk of the court setting forth your requests. Keep a copy.

4. Object to the order and ask for the opportunity to be heard immediately through counsel.

5. Advise the judge on the record that it is your understanding that no such order is ever valid.

6. Do not enter into an agreement with the judge not to publish matters relating to the proceedings, even if your access to the proceeding is conditioned on such an agreement. If the judge seeks such an agreement, state that you have no authority to make such agreements and have been instructed not to do so by your editors.

D. If A Judge Orders Trial Participants Not To Discuss The Case With The Press

Although orders telling the press not to publish are presumptively invalid, such is not the case with orders to trial participants not to talk to the press. In cases where a judge orders trial participants not to discuss the case with the press, that is, enters a "gag order," you should do the following:

1. Attempt to obtain a copy of the order, if it is in writing. If the order was entered orally but on the record, request a copy of the transcript.

2. Notify your editor or news director and, through him or her, legal counsel.

3. You may and should continue to ask questions of trial participants.

4. If you and your editor wish to challenge such an order, consult your paper's attorney or the First Amendment Hotline.

5. You can publish anything you receive from the trial participants, even if by telling you they violate the judge's order.



GENERAL TIPS

1. You have a constitutional and common law right to attend civil and criminal trials, except in the most extraordinary circumstances.

2. You have a common law right to attend pretrial hearings and other hearings or proceedings which are conducted as part of a lawsuit, except in certain narrowly prescribed circumstances.

3. Never agree not to publish a report of the proceeding in return for the judge's agreement to let you attend.

4. You (preferably through your news organization's lawyer) must be given notice and an opportunity to be heard before you may be excluded from a hearing or trial, or denied access to court records.

5. If you learn from a source what transpired at a closed proceeding or what is in a sealed record, you are free to publish.

6. You are not required to explain why you want to attend a particular hearing or trial, or why you wish to see a particular record, and, in fact, should not do so.


ABOUT THE AUTHORS.

Sanford L. Bohrer is a member of the law firm Holland & Knight LLP in Miami. He has been a member of The Florida Bar since 1973, having received his B.A. from Colgate University in 1970, and his J.D. from Columbia University in 1973. His clients include The Miami Herald, New Times, The Associated Press, WPBF-Channel 25 in West Palm Beach and Daily Business Review in Miami. He established the Florida First Amendment Hotline.

Karen Williams Kammer is Of Counsel to Mitrani Rynor Adamsky & Macaulay, P.A. in Miami, and a past chair of The Florida Bar's Media & Communications Law Committee. She has been a member of The Florida Bar since 1988 and of the Illinois Bar since 1989. She received her J.D. in 1988 from the University of Chicago Law School, and a B.S.J. in 1979 and M.S.J. in 1980 from the Medill School of Journalism, Northwestern University. Before becoming a lawyer, Ms. Kammer was an editor at WLS-TV, the ABC-owned and operated station in Chicago, a writer and producer at the Westinghouse-owned WIND Radio in Chicago, and a reporter for various other radio and television stations and newspapers in Pittsburgh, PA, Washington, D.C., Green Bay, WI, Cedar Rapids, IA, and Huntington, WV. Her clients include the National Broadcasting Company, Inc., Post-Newsweek Stations, and the British Broadcasting Corporation.

Amanda Hill is an Associate at the firm Holland & Knight LLP in Fort Lauderdale. She recently became a member of The Florida Bar in 2012 after graduating summa cum laude from Nova Southeastern University, Shepard Broad Law Center. She received her B.A. from Pepperdine University in 2000. During law school, she was a Senior Staff Member of Nova Law Review and competed as an Advocate in the Jessup International Moot Court competition.


FOOTNOTES

Article 1, Section 24 of the Florida Constitution, making access to government meetings and records of all three branches a constitutional right, was added in 1992. See also Sec. 286.011, Fla. Stat. (2012) (the Open Meetings Act); Chapter 119, Fla. Stat. (2012) (the Public Records Act). In 2005, Florida's policy on open records was amended to clarify that all state, county, and municipal records are open for personal inspection "and copying." Compare § 119.01(1), Fla. Stat. (2004), with § 119.01(1), Fla. Stat. (2005).
340 So. 2d 904 (Fla. 1977).
Id. at 908.
Id. at 910.
Id. at 908.
WPTV-TV et al. v. State, 61 So. 3d 1191, 1193 (Fla. 5th DCA 2011) (quoting State ex. rel. Miami Herald Publ'g v. McIntosh, 340 So. 2d 904, 909 (Fla. 1977)).
426 So. 2d 1 (Fla. 1982).
Earlier decisions by the district courts of appeal had held prior notice of hearing on a closure request was required. Sentinel Star Co. v. Booth, 372 So. 2d 100 (Fla. 2d DCA 1979);Times Publishing Co. v. Hall, 357 So. 2d 736 (Fla. 2d DCA 1978).
426 So. 2d at 3. The Florida Supreme Court has extended the Lewis test to govern decisions whether to deny access to pretrial discovery materials which are also "public records" under Chapter 119, Florida's Public Records Act. See Florida Freedom Newspapers v. McCrary, 520 So. 2d 32 (Fla. 1988). The McCrary situation typically arises in the criminal context: a state attorney holds materials (such as surveillance tapes, witness statements and so on) the defense has asked it to turn over in discovery. Once the defendant makes its discovery request of the state, any member of the press or public may inspect those materials under the Public Records Act unless some other statutory exemption applies.
Barron v. Florida Freedom Newspapers, 531 So. 2d 113 (Fla. 1988).
Id. at 118.
Palm Beach Newspapers, Inc. v. Burk, 504 So. 2d 378 (Fla. 1987).
See Forrest et. al. v. Citi Residential Lending, Inc. et. al., 73 So. 3d 269, 277 (Fla. 2d DCA 2011) (citing Seattle Times Co. v. Rhinehart et al., 467 U.S. 20 (1984)).
Id. (citing Seattle Times Co., 467 U.S. at 33).
At least one trial court has addressed the issue expressly. Roberts v. Roberts, 23 Med. L. Rptr. 1285 (Fla. 15th Cir. 1994).
Carter et al. v. Conde Nast Publ'ns et. al., 983 So. 2d 23, 25-6 (Fla. 5th DCA 2008).
See Palm Beach Newspapers, Inc. v. Limbaugh, 967 So. 2d 219, 219 (Fla. 3d DCA 2007), reh'g denied (Cope, J., dissenting).
Id. at 219, 220-21 (quoting Art. I, § 24(a), Fla. Const.).
Rule 2.051(c)(9)(D) and Commentary. Current Rule 2.240 still does not require prior notice of orders sealing court records in non-criminal cases. Rather, Rule 2.240 provides that notice is required once an order sealing court records in non-criminal cases has already been issued. Rule 2.240(d)(4). Prior public notice of a hearing on a motion to make court records confidential in non-criminal cases is also not required but instead is within the court's discretion. Rule 2.240(d)(2).
Morris Publ'g Group, LLC v. State, 13 So. 3d 120, 122 (Fla. 1st DCA 2009) (quoting Fla. R. Jud. Admin. 2.420(f)(1)).
Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 606-07 (1982). See also Newman v. Graddick, 696 F.2d 796 (11th Cir. 1983).
Press-Enterprise Co. v. Superior Court, 464 U.S. 501, 510 (1982) ("Press-Enterprise I"); Press-Enterprise Co. v. Superior Court, 478 U.S. 1 (1986) ("Press-Enterprise II").
See Presley v. Georgia, 130 S.Ct. 721, 724 (2010) (quoting Waller v. Georgia, 467 U.S. 39, 48 (1984)).
Id. at 724-5.
McCarthy v. Barnett Bank, 876 F.2d 89 (11th Cir. 1989); In re Alexander Grant & Co. Litig., 820 F.2d 352, 354 (11th Cir. 1987).
United States v. Rosenthal, 763 F.2d 1291 (11th Cir. 1985); Newman v. Graddick, 696 F.2d 796 (11th Cir. 1983).



Authored by the Media & Communications Law Committee, the handbook serves as a resource guide for members of the media about topics in the legal profession.

[Revised: 02-04-2013]