The Tennessee Supreme Court has agreed to hear a case in which a lower court judge refused to unseal court records in a test of the First Amendment right of access by the public to court proceedings and court documents.
In State of Tennessee v. Randall Johnson and The Nashville Banner, the Nashville Banner intervened in a criminal case to argue for the unsealing of a motion by a defense attorney for disqualification of Judge Cheryl Blackburn and two supporting affidavits. The motion for disqualification appears to be related to a question of judicial competency and after the motion for disqualification was filed, Blackburn recused herself from the case.
There had been no motions to seal the motion or affidavits by either party in the criminal case and Blackburn did not issue an order sealing them. But when the Nashville Banner sought to examine the records, the court said they were under seal.
Criminal Court Judge Angelita Dalton, who had taken over the criminal case from Blackburn, declined the Nashville Banner’s call to unseal records, stating in a June 26, 2024, order that:
“…the public disclosure of these particular documents, especially at this premature juncture, would likely result in the publication of claims that (a) are currently insufficiently supported, (b) would annoy, embarrass, oppress, or create undue burdens for involved persons, (c) deny involved persons their rights to substantive, procedural, and administrative due process, and (d) delay court proceedings.
“The Court further finds that any substantiated concerns related to judicial competency may also be addressed through other appropriate avenues, which counsel for the existing parties are sufficiently equipped to pursue if they have not already.”
Dalton then entered an order to seal the records, which had not been entered before.
The Court of Appeals refused to hear an appeal from the Nashville Banner.
But the Tennessee Supreme Court, accepted the appeal and, among other procedural questions, said it is “particularly interested in briefing and oral argument on…[w]hat legal standard and standard of review should apply to a motion to unseal records when no initial sealing order was filed.”
Legal issues around sealing court records
Tennessee Coalition for Open Government is among a group of amici who pressed for review.
“This case presents important issues concerning the correct standard to apply in deciding whether a seal on judicial records is proper and the appealability of orders denying a request to unseal judicial records” wrote Paul McAdoo, counsel for the Reporters Committee for Freedom of the Press and the other amici in a motion supporting the Banner. McAdoo represents journalists in Tennessee as part of the Reporters Committee Local Legal Initiative.
“The Court’s resolution of these issues will have significant ramifications for news reporting and transparency in Tennessee’s judicial system,” McAdoo wrote. The other amici are the Tennessee Association of Broadcasters and the Tennessee Press Association.
The Banner, the press organizations and TCOG argue that the lower courts did not apply the proper standard in sealing judicial records, which have a strong presumption of openness tied to history and trust in the judicial system and rule of law and allow the public scrutiny over the court system.
“The impact on the law and public of a decision in this case would be significant as it goes to the heart of the public’s ability to monitor the activities of the judicial branch of our government,” McAdoo wrote.
Daniel Horwitz, the attorney for the Nashville Banner, argued the law in Tennessee is clear that a presumption of openness may only be overcome by an overriding interest based on findings that the closure is essential to protecting a higher value, and even then, must be narrowly tailored to serve only that interest.
Horwitz also noted that the burden to prove the need for closing a record is upon the proponent of the seal — and in this instance, neither the defense or the prosecutors in the case argued for the documents to be sealed.
He also said that factors weighing against closure are when the party benefitting from a protective order is a public entity or official or when the information sought relates to a matter of public concern.
“…a judge’s potential incompetency is a matter of public concern, not a private matter that a trial court has any authority to restrict to litigants alone. Keeping judicial records secret because they call a colleague’s competency into question also is not a recognized justification for sealing,” Horwitz wrote.
Nashville Banner’s reporting on sealed court records in Davidson County
The Nashville Banner this summer began publishing stories about what appears to be a pattern of Davidson County criminal court judges sealing records without entering orders and sometimes without motions by the parties to seal the records. When a court seals a record, the order would normally appear with the case file and would justify the factors for the closure that overcome the First Amendment and common law rights of court openness.
But the Nashville Banner could find no such orders and only realized sealed records existed when it made additional inquiries with the court clerk.
In its story “Tennessee Supreme Court to Hear Banner Case Seeking Judicial Records,” Banner Editor Steve Cavendish said he was grateful that the Tennessee Supreme Court decided to hear the case:
“Our courts have credibility when they are open and transparent,” he said. “When judges ignore the rules and then seal files that could be critical of their performance, it creates the appearance of a cover-up. Transparency is always the answer for creating public trust in our institutions.”
Like other government entities, the courts are public. That means that court proceedings must be open to the public and the documents they produce must also be accessible. As with any laws surrounding public and open government, there are exceptions. But those exceptions are strict.
When a judge does have a valid reason to seal documents in a case, they must enter a written order explaining why they are sealing that document and cite case law to back it up.
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Deborah Fisher has been executive director of Tennessee Coalition for Open Government since 2013. Previously she spent 25 years in the news industry as a journalist. Visit tcog.info for more about the coalition and its work.