Special Issues in Providing Access to Court Records

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Court records can be a little different from most of the records in other county offices in that they are created by parties of the case who need access to the records on an on-going basis during litigation.  The evidence and discovery materials in the cases are not created by the clerk, but merely held for use by the parties. For this reason, though case files are technically public records, special provisions may apply. The United States Supreme Court has stated that “every court has supervisory power over its own records and files.”[1]  In Tennessee, the Court of Criminal Appeals has similarly ruled that “a trial court has the inherent authority to determine the custody and control of evidence held in the clerk’s office.”[2]These case files, while in the court clerk’s office, will usually be open to the public.[3]  This public right of access is rooted in the First Amendment and in the common law, but is a qualified right.[4]  Since this right is qualified and not absolute, it is subject to the court’s discretion on a particular matter.[5]

Therefore, unless there is a statute making a record confidential or a clear court directive sealing records or prohibiting public access to the records, the public may access case files. If the court seals a record, it becomes confidential and free from public scrutiny.[6]  This power is not unlimited. The records may only be sealed when “interests of privacy outweigh the public’s right to know.”[7]  If parties to litigation approach a clerk with concerns about public access to materials included in case files, the clerk should direct the parties to petition the judge to order such records sealed from public access. Additionally, as parties to litigation may need extended access to and use of case records, courts may also adopt rules to authorize that pleadings and exhibits may be withdrawn by parties to the case or their legal representatives.[8]

            [1] Nixon v. Warner Communications, 435 U.S. 589, 98 S.Ct. 1306 (1978).

            [2]  Ray v. State, 984 S.W.2d 236, 238 (Tenn. Crim. App. 1997).

            [3]  Smith v. Securities and Exchange Commission, 129 F.3d 356, 359 (6th Cir. 1997).  See also Op. Tenn. Att’y Gen. No. 02-075 (June 12, 2002).

            [4]  Ballard v. Herzke, 924 S.W.2d 652, 661-662 (Tenn. 1996).

            [5]  Ray v. State, at 238.

            [6]  Knoxville News-Sentinel v. Huskey, 982 S.W.2d 359, 362 (Tenn. Crim. App. 1998)

            [7]  In re Knoxville News-Sentinel, 723 F.2d 470, at 474 (6th Cir. 1983).

            [8]  Op. Tenn. Att’y Gen. No. 02-075 (June 12, 2002).