Court Access

4. What court documents are public?

The state and federal constitutional commitments to open courts mean that, with few exceptions, any person, including reporters, can review and copy court records as well as observe court proceedings.  In the federal system, as noted below, most court records are available to the public online.  Except when a case is being tried, you will find most state court records in the clerk of court’s office.  Venturing into the clerk’s office for the first time can be a daunting experience.  Each clerk of court has his or her own system of keeping files and indexes in order.  But once you learn the system, you generally can find what you need.  The clerk’s staff can be your best ally.

State law prohibits state courts from sealing or restricting access to the contents of any judicial record that is required under other state laws to be open to public inspection.^[45]  If such orders are issued, a person violating them cannot be held in contempt of court.^[46]  There are, however, some exceptions to the general rule that court records are public records.  

The following is a list of various types of court records that generally are available for inspection by the public and the media, followed by a list of judicial records that are not public:

Appellate court materials.  The opinions issued by the N.C. Supreme Court and the N.C. Court of Appeals are public records and are available for inspection and copying in the respective clerks’ offices in Raleigh.  The opinions are also available on the North Carolina Courts website at http://appellate.nccourts.org/opinions/.

The Court of Appeals typically hands down its decisions on the first and third Tuesdays of each month.  The opinions are filed with the clerk the Thursday before and usually are available for review by 9 a.m. Tuesday.

In each case these courts hear, the Supreme Court and the Court of Appeals receive briefs containing the legal arguments and a record containing the evidence and other matters from the lower court.  These documents, which are public records, can help a reporter learn details about a case that do not show up in the opinion, such as the age of a victim or the type of car driven in a getaway.  They also set forth the legal positions of the parties.  State law specifically states that records maintained by clerks of court are open to inspection.^[47]  These filings may be located and downloaded at http://www.ncappellatecourts.org/search.php.

Casefolders and documents.  With the case number (see the section on computerized indexes below), you can pull the case folder that contains the actual court documents such as the complaint and answer.  These are public records unless sealed by court order.  The procedures for challenging sealing orders are described below.

Civil discovery.  In civil cases, the discovery process by which litigants develop evidence and facts relevant to the issues is largely conducted in private unless disputes regarding the discovery process require the court to get involved.  The law regarding the rights of the public and press to have access to civil discovery, whether by attending oral depositions or by obtaining copies of written discovery responses or of documents produced by parties, has yet to be fully fleshed out.  Generally, however, discovery materials that have been filed with the court are more accessible to the news media than unfiled materials.

For example, the Fourth Circuit has held that the First Amendment guarantees a right of access to certain filed discovery materials.^[48]  The court said the press and public have a First Amendment right of access to documents submitted to the court as attachments to a summary judgment motion in a libel case.  The court held that once documents are made part of such a motion they “lose their status of being ‘raw fruits of discovery.’”^[49]  However, if documents filed with the court do not play any role in the adjudicative process, access to such documents may be limited.^[50]

The right of access to unfiled civil discovery materials is far more limited.  The news media are often denied the right to challenge protective orders issued by the court to seal such materials,^[51] especially if they intervene late in the process, after the parties have litigated in reliance on the protective order.  And even when the courts agree to hear the news media’s arguments, many courts refuse media requests for access because “1) discovery is a private process traditionally closed to the public; 2) the court has no power to compel a party to produce unfiled discovery materials because they are concerned with private matters; and 3) First Amendment interests in discovery are limited and can be overcome when there is ‘good cause,’ such as ensuring a fair trial or protecting one’s privacy.”^[52]

Computerized indexes.  For the most part, computers have replaced all of the paper indexes that used to list cases by the names of the parties.  For older cases, you may have to resort to the books that list the names of parties in alphabetical order.  The computers also list judgments by the defendants’ names.  Again, the computer will have only those judgments that have been filed since the computers were installed.  You must go to the old books of indexes for earlier information.  The computers and indexes only provide a reference point—the case number.  You can use that number to locate the case file.  For civil and criminal actions in federal court (including bankruptcy), court filings are generally available on PACER (Public Access to Court Electronic Records), which is located at http://www.pacer.gov/psco/cgi-bin/links.pl.  

Criminal histories.  An individual’s record of criminal charges in a given county can be derived from clerk’s office records.  A criminal record check through the clerk’s office only shows those instances where a person has been charged within the county in which you are searching. The files will detail whether the case has come to trial, whether a defendant was found guilty or acquitted or whether the case was dismissed.  A central computer system, called the Police Information Network (PIN), compiles statewide criminal statistics, but access to the network is limited to law enforcement officers and others whose duties relate to the administration of justice.^[53] 

Government settlements.  Whenever a state or local government agency settles a lawsuit, the documents revealing the terms of the agreement and all documents that were made or used in the settlement are public records.^[54]   This is true even in cases involving minors.^[55]  The documents considered part of the settlement record include correspondence, settlement agreements, consent orders, checks and bank drafts.^[56] 

Grand jury indictments and presentments.  An indictment charging an individual with a crime is a public record.  Likewise, a presentment—the document in which the grand jury directs the prosecutor to pursue possible charges—is a matter of public record.^[57]   Evidence considered by a grand jury is not considered public record.^[58] 

Search warrants.  After law enforcement officers have executed a search warrant, they are required to make a report to the court on the results of the search.  The clerk’s office keeps those reports on file.  You can review the probable cause statement in which the officer sets forth reasons he or she believes a person is involved in criminal activity.  The warrant also tells what has been searched, why the place needed to be searched and what has been seized.^[59] 

Evidence admitted at trial.  Generally, evidence admitted at trial is released into the “public domain.”  Thus, private documents lose their non-public status when introduced in evidence.^[60]   However, according to the N.C. Court of Appeals in Times-News Publishing Co. v. North Carolina,^[61]  such evidence can revert to its nonpublic status—for instance, if evidence is transmitted to the district attorney’s office for purpose of reinvestigation and retrial.^[62] 

Videotaped trial exhibits.  Federal courts in North Carolina generally have allowed news organizations to review and copy video and audio tapes that are introduced into evidence.  However, the issue has not been litigated in either the state or federal courts in North Carolina, so there are no court opinions on the status of a reporter’s constitutional and common law right of access to such materials.

Courts in other jurisdictions vary widely on whether reporters are allowed to inspect and copy audio and video evidence presented in a trial.  When courts grant access, they generally do so on the grounds that the presumptive First Amendment right of access does not depend on the form of the judicial record and that the right to copy is part of the right to inspect records.^[63]  Many courts, however, assume that news media access to taped evidence is more likely to infringe on a defendant’s constitutional right to an impartial jury than access to printed documents.^[64] 

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