A GUIDE TO ACCESS
TO COURTS AND COURT RECORDS IN CALIFORNIA
ACCESS TO COURT PROCEEDINGS
The First Amendment right of free speech carries with
it the right to listen. Therefore, court proceedings
are presumed open, unless specifically closed by law
or a party proves that an overriding interest in justice
requires closure. (Richmond Newspapers, Inc. v. Virginia,
44 U.S. 555 (1980); Globe Newspapers v. Superior Court,
457 U.S. 596 (1982); NBC Subsidiary Inc. v. Superior
Court, 20 Cal. 4th 1178 (1999)).
Criminal: All stages, from arraignment and
bail hearings to change-of-plea hearings, pre-trial
motions, jury selection, trial, and sentencing are
presumed open. A proceeding may be closed if the court
finds, on the public record, that the defendant’s
constitutional right to a fair trial is threatened.
The defendant must prove that closure is required
because “substantial probability” exists
that a fair trial will be impaired, that any closure
or gag order will be effective, and that there is
no alternative. (Nebraska Press Ass’n v. Stuart,
427 U.S. 539 (1976); Press-Enterprise v. Superior
Court, 464 US 501 (1984); Press-Enterprise v. Superior
Court, 478 US 1 (1986)).
Civil: : All court proceedings, including
court hearings on discovery and pre-trial motions
are presumed open. To close a proceeding, the court
must find that (1) limiting public access serves an
overriding interest; (2) there is a substantial probability
that interest will be prejudiced without closure;
(3) the closure order is narrowly con-structed to
serve that interest; and (4) there is no less restrictive
way to protect that interest. The order to close a
proceeding must state the factual and legal bases
on the record. (NBC Subsidiary, Inc. v. Superior Court,
20 Cal. 4th 1178 (1999) CRC 243.1) The court must
give public notice that it intends to hold a hearing
before closing a courtroom.
In both criminal and civil matters, judges have wide
discretion to impose gag orders on court personnel and
trial participants such as parties and their lawyers.
side bar or in-chambers
conferences, although transcripts of proceedings
are usually available.
including mediation and arbitration hearings.
unless the minor (a) is charged with specified violent
crimes or (b) asks the court to open the hearing.
The court is also closed if the crime is a sex offense
and the victim requests a closed hearing, or during
victim's testimony if the victim is under age 16.
(Welfare & Inst. Code §676)
many family law proceedings,
e.g., adoption, visitation, custody, annulment,
mental competency hearings
for involun-tary commitment, unless a party asks
that the hearing be open. (Civ. Code §5118)
out of court discovery
such as depositions, interrogatories and document
productions. (Seattle Times v. Rhinehart, 467 U.S.
ACCESS TO COURT RECORDS
Access to court records is as important as the right
to attend the proceeding itself. Court records may be
sealed only by statute or by a court order setting forth
findings that (1) there exists an overriding in-terest
supporting sealing; (2) there is a substantial probability
the interest will be prejudiced absent sealing; (3)
the proposed sealing order is narrowly tailored; and
(4) there is no less restrictive means of achieving
the overriding interest. (CRC 243.1, 243.2, NBC Subsidiary,
Inc. v. Superior Court, 20 Cal.4th 1178 (1999); Copley
Press v. Superior Court, 63 Cal.App.4th 367 (1998)).
The order must specify the documents and pages, or portions
of pages, that are to be sealed. Sealed records may
be reviewed only upon an order of the court.
• Material not introduced in, or filed with the court is not
public. Court records are not covered by the California Public Records
Act. Thus, the Act’s provisions on access, time, and cost do not
Anyone is entitled to see any evidence
introduced in open court and any unsealed court record
(including transcripts) in the court file. No fee is
required to view records, but there may be a fee for
• Criminal: Executed search and arrest warrants
after the 10th day after issuance (Penal Code §1534);
grand jury testimony that resulted in an indictment
after 10 days following delivery of the transcript to
the defendant; (Penal Code §938.1) probation officer
reports for the 60 days following sentencing or grant
of probation (Pe-nal Code §1203.05); old probation
reports when the subject is charged with a new crime;
written victim statements (Penal Code §1191.15)
after sentence is entered.
• Civil: Settlement agreements that are filed
in court. A party seeking to keep an agreement secret
must show that the need for secrecy outweighs the presumption
of public access (Matter of Hearst, 67 Cal.App.3d 777
(1997)). If a party to the settlement is a public agency,
the settlement is public under the Public Records Act
(Govt. Code §6254(b)); Freedom Newspa-pers v. County
of Orange, 158 Cal.App.3d 893 (1984)).
A defendant's right to a fair trial is not the only
reason to seal a record.
Criminal: Records of grand
juries that do not enter an indictment (Penal
Code §924.6); juvenile court
records (Welf. & Inst. Code §827),
ex-cept some records when minors escape deten-tion
facilities (Welf. & Inst. Code §828), and
after a §602 petition has been sustained for
a Welf. & Inst. Code §676(a) offense;
pre-sentencing mental evaluation records (Penal
Code §1203.03) [the contents may be in Probation
Officer Reports]; indigent applications
(Penal Code §987.9); any record for which the
court finds disclosure would jeopardize a defendant’s
right to a fair trial.
Civil examples: Adoption
records (Fam. Code §9200); trade
secret information (Civ. Code §3426.5); civil
attachment records for 30 days upon request
of the plaintiff (Civ. Proc. Code §482.050); discovery
records such as deposition transcripts, interrogatory
answers and other documents obtained in discovery,
until filed in court records or introduced in evidence.
But a party may be willing to share them.