Synopsis of Georgia Cases involving
Access to Court Records & Proceedings

Special thanks to Georgia First Amendment Foundation Board Member Peter Canfield of Dow, Lohnes and Albertson, who prepapred the following synopsis and generously allowed the foundation to post it on its Internet site.

1982
Criminal cases. R.W. Page Corporation v. Lumpkin, 249 Ga. 576 (1982) (Jordan, C.J.):
As a matter of constitutional law, trials and pretrial hearings in criminal cases may not be closed to the public and representatives of the news media unless closing the hearing is the only means by which a "clear and present danger" to the defendant's right to a fair trial can be avoided. The Court stressed "the extreme importance of the strong presumption" of openness.

1984
Juvenile proceedings. Florida Publishing Company v. Morgan, 253 Ga. 467 (1984) (Marshall, J.):
Holding that as a matter of constitutional law the press and public have a right of access to proceedings in juvenile cases unless there is an overriding or compelling reason for closure.
Uniform Juvenile Court Rules 26.1 and 26.2, which provide respectively for access to juvenile court proceedings and camera access to juvenile court proceedings, were adopted effective March 21, 1991. Rule 26.1 requires any person seeking access to a juvenile court proceeding to file a written motion for access prior to the time of the hearing for which access is sought. Rule 26.2 requires any person seeking camera access to file a written request for access with the judge involved prior to the proceeding. The judge has discretion to allow or deny the request and may require pool coverage. The Rule further imposes various restrictions on the intrusiveness of the camera equipment.

1986
Camera access to courtrooms. Pacific and Southern Co. d/b/a WXIA-TV v. State, (Gwinnett County Superior Court, Nov. 6, 1986) (Jackson, J.), aff'd mem., No. 44889 (Ga., Oct. 1, 1987):
Trial court has discretion under Uniform Superior Court Rule 22 to order photographers only to show criminal defendant from the shoulders down where the defendant - a former police officer - had objected, telling the court that he was afraid that television coverage of his testimony would adversely affect his ability to concentrate.

1987
Camera access to courtrooms. Multimedia WMAZ, Inc. v. State, 256 Ga. 698, 699 (1987) (Marshall, J.):
Rule 22 grants to the media the right to provide electronic-media coverage of trials in the superior courts "unless the assigned judge, after 'appropriate hearing' with notice, makes specific findings that such coverage is either not 'within the requirements of due process of law' or cannot be 'done without detracting from the dignity and decorum of the court.'"

1988
Access to videotape trial exhibits - criminal proceedings. United States v. Eaves, 685 F.Supp. 1243 (N.D.Ga., April 15, 1988) (Evans, J.):
News media has right of access to those portions of video and audiotapes, which depict defendant allegedly accepting bribes from undercover FBI agents, that are admitted into evidence at trial, although such tapes will not be released until close of evidence, in order to allow defendant to present his case in court prior to tapes' public disclosure and in order to diminish administrative difficulties involved in releasing portions of tapes.

Access to depositions. Avirgan v. Hull, No. 1:88-CV-305-RLV (N.D.Ga., May 5, 1988) (Vining, J.):
The Atlanta Journal-Constitution petitioned to intervene to oppose a Fulton County Police lieutenant's motion for a protective order prohibiting press attendance at his deposition. The lieutenant subsequently agreed to press attendance and his motion was denied as moot.

Civil cases. Atlanta Journal and Atlanta Constitution v. Long, 258 Ga. 410 (1988) (Bell, J.) [Long I]:
Holding in a civil case that there is a "presumption that the public will have access to all court records," which may be overridden only "in cases of clear necessity." The Court declared that: "Public access protects litigants both present and future, because justice faces its gravest threat when courts dispense it secretly. Our system abhors star chamber proceedings with good reason. Like a candle, court records hidden under a bushel make scant contribution to their purpose."
Justices Marshall and Smith dissented without opinion.

Camera access to courtrooms. Georgia Television Company v. Napper, 258 Ga. 68 (1988) (Gregory, J.):
Cameras may be prohibited only if they would violate due process of law or would detract from the dignity and decorum of the court. Denying camera access because the trial court believes it may "stifle, inhibit, frustrate or prevent" Socratic dialogue between court and counsel is improper.

Camera access to courtrooms. Georgia Television Co. d/b/a/ WSB-TV v. State, 257 Ga. 764 (1988) (Gregory, J.):
Trial court did not abuse its discretion by denying broadcast coverage of pre-trial proceedings in murder prosecution of Alday defendant whose prior conviction had been vacated due to extensive pre-trial publicity, in view of court's express finding that defendant's due process rights would be violated by such coverage.

1989
Access to videotape trial exhibits - criminal proceedings. United States v. Evans, No. CR88-269A (N.D.Ga., Feb. 7, 1989) (Ward, J.):
News media has right of access to those portions of video and audiotapes, which depict defendant allegedly accepting bribes from undercover FBI agents, that are admitted into evidence at trial, although such tapes will not be released until the case is submitted to the jury, in order to allow defendant to present his case in court prior to tapes' public disclosure and in order to diminish administrative difficulties involved in releasing portions of tapes.

Civil cases. Atlanta Journal and Atlanta Constitution v. Long, 259 Ga. 23 (1989) (Bell, J.) [Long II]:
The trial court (Eldridge, J.) was not authorized to reconsider the issue of public access after the Court issued its decision in Long I holding that the record in the case had been improperly sealed. The Court specifically directed the trial court to make the records in the case available to the public upon receipt of the remittitur.

First Offender records. The Atlanta Journal & The Atlanta Constitution v. Smith, Clerk of Atkinson County, No. 89-C-28 (Atkinson County, April 21, 1989) (Blitch, J.):
Suit by The Atlanta Journal-Constitution for access to First Offender records.
Concluding that the public and the media have a constitutional right of access to judicial records in criminal cases under the First Amendment and the Georgia Constitution, the Court ordered the Clerk to produce the records to the newspaper.

Criminal trial briefs. United States v. Patrick Swindall, No. CR 88-477-A (N.D.Ga., May 22, 1989) (Freeman, J.):
Motions by The Atlanta Journal-Constitution and The Gwinnett Daily News to object to the filing of certain records and trial briefs under seal. The Court ordered the briefs to remain closed until a jury was sworn; other records were immediately unsealed.

Access to civil pleadings. Wilson v. Lowe, 16 Media L. Rep. 1847 (Fulton County Superior Court, May 24, 1989) (Hull, J.):
Petition by The Atlanta Journal-Constitution for access to records filed under seal in civil action.
Concluding that all court records in Georgia are public and presumptively open to public access unless the harm resulting to the party seeking closure clearly outweighs the public interest, Court found that, since much of the information in the sealed records already had been disclosed and disseminated publicly, the alleged harm to the defendant seeking closure does not outweigh the public's interest.

1990
Divorce records. Southeastern Newspapers Corporation v. J. Lester Newsome, Clerk of Court, Richmond County, 260 Ga. xxx (1990):
In January 1989, the Augusta Chronicle began publishing "For The Record," a feature that included marriage licenses granted, divorces, indictments, sentences and DUIs. In June 1989, the Richmond County Superior Court Clerk, allegedly in response to the feature and as a result of his own personal objection to the press or anyone else having access to divorce decrees, instructed his staff to prevent access to divorce records until the decrees were fully processed and entered on the docket book. The effect and alleged intent of the change was to render impracticable the newspaper's obtaining current divorce information from the court. The Clerk reportedly explained, "We just want to make it as difficult as possible for you to get those records."
After the newspaper brought suit pursuant to the Open Records Act and Uniform Superior Court Rule 21, the Superior Court ordered the Clerk to allow inspection. The Clerk appealed the order to the Supreme Court. The newspaper cross-appealed from the denial of its request for attorney's fees.
On October 2, 1990, in a one-line decision, the Supreme Court affirmed.

Access to videotape trial exhibits - civil proceedings. Griffith v. Ledbetter, Civil Action No. 1:86-CV-142-HTW (N.D.Ga., May 2, 1990) (Ward, J.):
Petitions by news organizations for access to videotape exhibit played to the jury in the trial of a suit brought by a patient of the Georgia Retardation Center. The videotape consists of a presentation of a method of restraint used in the plaintiff's treatment.
The court denied a petition for access made while the trial was in progress.
Post trial, the court granted the petitions with the condition, based on privacy concerns, that any broadcasts of the tape "block out" the identity of other Retardation Center patients and employees.

Access to actions for the return of property seized pursuant to search warrant. United States v. Moody, No. 1:90-CV-0334-RCF (N.D.Ga., Feb. 20, 1990) (Freeman, J.), rev'd, 17 Med. L. Rep. 2096 (11th Cir. 1990) (per curiam):
Petitions by news organizations for access to records and proceedings in federal suit brought by mail bombing suspects seeking, inter alia, return of material seized by federal agents in the course of searching suspects' persons and property.
Although the United States Court of Appeals for the Eleventh Circuit allowed to remain sealed without explanation an in chambers hearing conducted by the trial court, the Court reversed the trial court's order sealing all other records and proceedings.

Access to pretrial release proceedings. United States v. Moody, Criminal No. 90-41-MAC (WDO) (M.D.Ga., Oct. 4, 1990) (Owens, J.):
Petitions for access to a portion of a pretrial release proceeding closed sua sponte by the court to hear argument concerning a proffer of evidence sought to be made by the United States.
Petitions denied on the ground that "[a]llowing the press and public access to communications between the court and counsel at the bench or in chambers would allow the dissemination of information which could be highly prejudicial to the defendant's right to a fair trial." "[T]he press has no First Amendment right of access to communications between counsel and the court which take place at the bench or in chambers, particularly when those communications involve evidence which the court determines to be inadmissible and which, if disclosed, could deprive the defendant of the fair trial by an impartial jury that the Constitution guarantees."
Transcript subsequently opened prior to prosecution of media appeal.

1991
Paternity proceedings. Long v. Keohane, Civil Action File No. D-47561 (Fulton County Superior Court, July 18, 1991) (Hull, J.):
Motion for closed trial based upon O.C.G.A. § 19-7-53 denied as "there are no confidential matters left to protect, much less any 'clear necessity' for closure, or any 'overriding or compelling' interest on the part of the parties for closure."

1992
Audio and video tapes admitted as evidence at trial. U.S. v. Shumake, No. 1:92-CR-02-ODE (N.D. Ga., March 27, 1992) [20 Med. L. Rep. 1031] (Evans, J.):
WSB-TV petitioned for access to audio and video tapes admitted into evidence at criminal trial. Access initially granted only after such time as jury returned verdict. After mistrial was declared, renewed motion for access granted. "The primary consideration weighing against the original release of the tapes was the concern that widespread dissemination of the tapes would adversely impact on Defendant's right to a fair trial ... In light of the widespread publicity that this matter has already received, however, this court believes that the common law presumption favoring access to judicial records outweighs the competing interests in this case, and dictates that the subject tapes be released."

Official court reporter's tape of a judge's remarks in open court. Green v. Drinnon, Inc., 262 Ga. 264 (1992) [20 Med. L. Rep. 1359] (Fletcher, J.):
Trial court (Parrott, J.) ordered judge to produce to newspaper official court reporter's tape of comments from the bench that were recorded while court was in session. Affirmed.
The Court held that the tape is a court record to which the public and press enjoy a right of access.

Access to civil pleadings. Brown v. Advantage Engineering, Inc., No. 91-8675 (11th Cir., May 20, 1992) (Fay, J.) [(Edmondson, J., dissenting)]:
Plaintiff in civil case moved for permissive intervention for purposes of unsealing record in previous unrelated case against defendant brought by another party. Trial court (Hall, J.) denied motion as untimely. Reversed.
The court held that, "Once a matter is brought before a court for resolution, it is no longer solely the parties' case, but also the public's case. Absent a showing of extraordinary circumstances set forth by the district court in the record consistent with Wilson, the court file must remain accessible to the public."

1993
Dual docketing system. United States v. Valenti, 987 F.2d 708 (11th Cir. 1993) (Hatchett, J.):
Newspaper filed motion to intervene in criminal proceeding for limited purpose of seeking to unseal disputed court record. The district court denied the motion. On appeal, the newspaper argued in part that the Middle District of Florida's maintenance of a "dual-docketing" system denied it any meaningfulopportunity to be heard on its exclusion from closed pretrial proceedings.
The Eleventh Circuit held that the use of a public and a sealed docket to note criminal proceedings was an unconstitutional infringement of the right of the public and press to seek the release of in camera motions and transcripts of closed bench conferences.
"`[A] two-tier system, open and closed' erodes public confidence in the accuracy of records, and thus denies the public and press its right to meaningful access." (citing CBS, Inc. v. District Court, 765 F.2d 823, 826 (9th Cir. 1985)).

1994
Computers in courtroom. United States v. Jackson, No. 93-CR-310-AAA (N.D. Ga., January 3, 1994) (Alaimo, J.):
Trial court permitted reporter from The Atlanta Journal-Constitution to bring lap-top computer into courtroom for duration of trial "so long as the computer does not make any noise that may disrupt the trial."

1995
Settlement agreement. Mullins v. City of Griffin, No. 3:93-cv-10-GET (N.D. Ga., January 9, 1995) (Tidwell, J.):
In sexual harassment action against Georgia municipality, Griffin Daily News sought leave to intervene to challenge provision of consent order dismissing case that ordered parties not to divulge terms of settlement.
Court granted intervention and deleted confidentiality provision as unjustified.

Preliminary hearings in death penalty cases. Southeastern Newspapers Corp v. State, 265 Ga. 223 (1995) (Carley, J.):
Affirming closure of pretrial proceedings in pending capital murder case.
Hunstein, J., joined by Benham & Sears, JJ., dissenting.

Preliminary hearings in death penalty cases. Rockdale Citizen Publishing Co. v. State, 266 Ga. 92 (1995) (Thompson, J.):
Appeal of order closing pretrial proceedings in pending capital murder case.
The Supreme Court reversed and remanded in light of R.W. Page v. Lumpkin and the trial court's failure to "fully articulate the alternatives to closure and the reasons why the alternatives would not protect the [defendant]'s rights." The Court reversed outright the trial court's closure of a hearing on a recusal motion: "[b]ecause evidentiary matters pertaining to the prosecution's case were not going to be presented at the recusal hearing, this ruling was erroneous."
Hunstein, J., specially concurring, noted that the government was the source of certain factually-accurate information that the majority found to be "highly inflammatory."

1996
Preliminary hearings in death penalty cases. Rockdale Citizen Publishing Co. v. State, 266 Ga. 579 (1996) (Hunstein, J.):
Appeal of order on remand again closing all pretrial proceedings in pending capital murder case.
The Supreme Court reversed, reasoning that "the superior court based its finding on speculation regarding the media coverage that might occur" and that "[a]ssumptions and speculation cannot provide the 'clear and convincing proof' required by Lumpkin to justify closure. " The Court also concluded that, "[g]iven the change of venue in this case, there exists no evidence to support closure of all pre-trial evidentiary hearings in this capital prosecution, wherever held."
Sears, J., concurring, stressed that "we must do our very best to hold fast to the values embodied by the First Amendment even in extreme and painful cases, because we cannot suspend it and remain all that we strive to be."
Carley, J., joined by Thompson, J., "reluctantly" specially concurred in reversal given "the established law of this state that a trial court has exceedingly limited discretion in ordering closure."

Search warrant affidavits. In re Four Search Warrants, 945 F. Supp. 1563 (N.D. Ga. 1996) (Forrester, J.):
Petition for access to sealed affidavits filed in support of search warrants executed against former suspect in Olympic park bombing.
Held that public has common law right to inspect and copy portions of sealed affidavits where disclosure would not compromise ongoing government investigation.

1998
Expunging records. School of Visual Arts, Inc. v. Savannah College of Art and Design, Inc., Civil Action No. CV96-1289-Ml (Chatham County Superior Court, March 9, 1998) (Mikell, J.):
Motion by parties to "expunge" from court file and otherwise prevent public access to confidential settlement agreement from other case that parties assumed court would maintain under seal.
Held that a party who files a confidential document in a lawsuit prior to obtaining a Uniform Superior Court Rule 21 order in that particular lawsuit waives the confidentiality of the document. The determining factor is not what words a party has typed onto a document in an attempt to protect it but rather the existence or non-existence of a Rule 21 order in the case at bar. Motion to expunge denied. Southeastern Newspapers' motion to unseal granted.

Camera access to court proceedings . WALV-TV v. Gibson , 269 Ga. 564 (1998) (Hines, J.):

Appeal from a television station's request for electronic access to court proceedings.

The Supreme Court affirmed in part and reversed in part the trial court's rejection of an application for electronic media coverage of the trials of two defendants charged in a double murder. The Court held that the trial court's findings were sufficient to support its conclusion that denial of coverage of the first trial was necessary to prevent a tainted jury pool in the second defendant's subsequent trial. The Court reversed the trial court's ruling disallowing coverage of the second trial because there was no basis on the record from which to conclude that the second defendant's rights would be jeopardized, or that the participants in the proceedings would be distracted, by the presence of a video camber in the courtroom during the trial.

1999
Camera access to the courtroom . Smith v. Gwinnett County , 270 Ga. 424 (1999) (Carley, J.):

The Georgia Supreme Court rejected a claim that the trial court erred in allowing television coverage of proceedings involving a levy on real property. The Court held that the consent of the property owners was not a prerequisite to access; rather, it was “but one factor” to be considered.

Probate proceeding. In Re: Motion of the Atlanta Journal Constitution , 271 Ga. 436 (1999) (Sears, J.):

After files relating to estate proceeding were sealed, newspaper filed motion seeking access to sealed files. Superior Court denied motion.

Held that, in discharging its duty under Uniform Superior Court Rule 21.1, trial court cannot forego “findings of fact and simply stat that the public's interest in access to court records is clearly outweighed by potential harm to the parties' privacy. By their nature, civil lawsuits quite often cause litigants to experience an invasion of privacy and resulting embarrassment, yet that fact alone does not permit trial courts to routinely seal court records. In an order sealing a court record, a trial court must set forth factual findings that explain how a privacy invasion that may be suffered by a party or parties seeking to seal a record differs from the type of privacy invasion that is suffered by all parties in civil suits. Otherwise, the trial court is not justified in closing the record from public scrutiny.”

2000
Pretrial records in civil cases . Van Etten v. Bridgestone/Firestone, Inc. and Ford Motor Co. , 117 F.Supp. 1375 (S.D. Ga. 2000) (Alaimo, J.), rev'd, Chicago Tribune Co. v. Bridgestone/Firestone, Inc. , 263 F.3d 1304 (11th Cir. 2001) (per curiam) (Black, Roney & Cox, JJ.):

Trial court granted media motion to intervene in settled suit and to permit public access to records filed with the court allegedly containing information on tire tread separation defect. Trial court found that defendant did not meet its burden of showing a compelling need for secrecy of the documents, or that closure of the documents was narrowly tailored to such an interest.

Court of Appeals reversed and remanded, holding that trial court applied incorrect standard. The standard, the court held, is not one of “compelling interest” but rather “good cause.”

Black, J., specially concurred, “to express my concern about third parties – who have no cause of action before the court – using the discovery process as a means to unearth documents to which they otherwise would have no right to inspect and copy.”

2001
Pretrial records in civil cases . McAleer v. General Motors Corp. , Civil Action No. 1:99-CV-3148-RWS (N.D. Ga., March 30, 2001) (Story, J.):

Trial court granted media motion to intervene and to permit public access to records filed with the court regarding alleged automobile defects. Trial court rejected defense claim that records contained secrets or that defense had shown “good cause” to justify sealing.