00:00 - Welcome to a special production coordinated in partnership

00:03 - with the Pennsylvania Bar Association's Bar Press Committee.

00:06 - The Bar Press committee is comprised of members of the bench, bar

00:10 - and press aimed at fostering increased cooperation and dialog.

00:14 - Today, we'll discuss the right to access court proceedings,

00:17 - as well as circumstances where records are protected.

00:20 - Our guests today are Paula Knutson Burke.

00:23 - She's with the Pennsylvania News Media Association and also serves as local legal

00:26 - initiative attorney with reporters Committee for Freedom of the Press.

00:30 - Also with us, Judge Terence Nealon.

00:32 - He serves on the Lackawanna County Court of Common Pleas.

00:35 - Angela Columbus, investigative reporter with Spotlight, P.A.

00:39 - and Michael Berry.

00:40 - He's a partner at Ballard Spa.

00:42 - Thank you all for joining us. Mike, we'll start with you.

00:44 - What is the basis that provides

00:45 - for court proceedings and records to be made available to the press at?

00:50 - Well, it's both to the press and to the public.

00:52 - There's really two bases.

00:53 - One is the tradition of common law.

00:56 - Going back to the colonial days,

00:58 - the courthouse says, and the court proceedings were open to the public.

01:01 - Anybody could come and listen to them, could come and watch proceedings.

01:05 - And that's the first basis that tradition was carried on

01:09 - through the

01:10 - colonies to the founding of the United States.

01:13 - The second is constitutional, and under the federal Constitution,

01:17 - there is a history of this kind of access both to proceedings and to records

01:22 - that comes through the First Amendment,

01:24 - the freedom of free speech, and the freedom protecting the press

01:28 - as well as the Sixth Amendment right for for for criminal defendants.

01:32 - And then here in Pennsylvania, there's constitutional provisions

01:34 - that expressly say that the courts shall be open.

01:38 - And so it's both that historic common law tradition

01:41 - and then the constitutional tradition as well.

01:44 - Eventually come to you next.

01:45 - What role does open government,

01:47 - including access to the courts, play in our democracy?

01:51 - Well, I mean, it

01:53 - shines the light on what happens

01:56 - in our courtrooms every day,

01:59 - although we do not allow

02:02 - broadcasting of court proceedings in Pennsylvania,

02:06 - really, unless a member of the public is going to travel to the courthouse

02:10 - themselves.

02:11 - They're dependent upon the coverage that is provided by members of the press.

02:17 - So it's operative that they be allowed a broad access to all court

02:22 - proceedings, whether criminal or civil, so that they can, in turn,

02:27 - report back the the

02:30 - litigation, the criminal proceeding and quite frankly,

02:34 - the actions of the the lawyers and the judges as well.

02:38 - There appear to be instances where the legal establishment

02:41 - is somewhat in conflict with the press in that the legal establishment is seeking

02:45 - the Sixth Amendment rights of their clients.

02:48 - Yet for the First Amendment rights of the press, sometimes good compares to that.

02:52 - Is there a presumption leaning either way?

02:54 - Well, really, the presumption is, as Mike talked about in the judge,

02:58 - in favor of access, because our democracy can't work

03:02 - unless we understand what's happening within the courthouse,

03:05 - both in the proceedings and also in the papers.

03:08 - So that presumption is in favor of access

03:11 - for the public and the press to be able to walk in.

03:14 - See, is our court system working or is it not?

03:17 - And if so, what are the problems?

03:19 - So it really is so critical for the public

03:23 - and the press to be able to judge those proceedings.

03:26 - You know, we have equal access under the law, equal justice under the law,

03:30 - and we won't know if that's happening, if the courthouse doors are closed.

03:34 - And just to piggyback on that, to Judge Nolan's point,

03:38 - I don't know that there's always tension

03:40 - between the legal establishment and the press for criminal defendants.

03:44 - They have a right to have their proceeding conducted in public

03:47 - so that they're not tried in a star chamber

03:49 - so that anybody can walk in and ensure that they're getting protected.

03:53 - You know, you contrast that with what happens in, say, Russia right now

03:57 - with so many high profile criminal cases where the public is locked out of

04:01 - what's going on here in the United States, that could never happen

04:03 - and that that protects the criminal defendants as well.

04:07 - Angela, what's the value of having a free press report on the court proceedings?

04:10 - Well, court reporting is

04:13 - a fundamental part of what journalists do.

04:17 - And obviously the courts are sort of the bedrock of a civil society.

04:22 - So being able to report on what occurs inside a courtroom

04:26 - and whether in a criminal case, a high profile criminal case,

04:31 - and as is often the case as of recently,

04:35 - you know, in civil court, and we have cases involving elections,

04:39 - we have cases involving election laws and voting machines and ballots and things

04:44 - that are so important to the public and the public's understanding of

04:50 - what is happening in their world, really.

04:54 - So being able to be in a courtroom, being able

04:58 - to have access to records about cases and the thinking behind

05:04 - decisions by judges

05:06 - is so critical to understanding and upholding these institutions.

05:12 - Angela, For those that aren't familiar.

05:13 - Can you tell us a little bit about Spotlight Pay and the work that you do?

05:16 - Sure.

05:17 - So Spotlight Pay is an independent

05:19 - nonprofit newsroom based in Harrisburg.

05:23 - We are dedicated to investigative journalism

05:27 - and accountability reporting, as well as public service journalism.

05:31 - We try to provide the public with as much information as possible

05:36 - so that they can make informed decisions and even drive change.

05:41 - We provide our content free of charge to more than 100 newsrooms

05:46 - across the state that our members are spotlight pay members.

05:51 - And really, you know, we sort of pride ourselves in filling a void,

05:56 - particularly when it comes to state house journalism and reporting.

06:02 - Anybody who's walked

06:03 - through a statehouse newsroom knows that there are fewer journalists

06:08 - today covering the state legislature and the governor's office.

06:13 - And those are the first positions that are often cut

06:17 - as news organizations try to save money.

06:21 - So Spotlight Pay came in to fill in that void.

06:24 - And we have more than a dozen reporters covering

06:29 - various parts of state government.

06:31 - Can you take us through what it's like to basically do your job last fall,

06:34 - for example, you covered the investigation into a suspended boy city manager.

06:39 - Can you talk about how not only what went into the investigation,

06:42 - but also how you depended on access to court proceedings and records to

06:46 - do your job? Sure.

06:47 - So last year, the the former

06:51 - now former city manager of Dubois was criminally charged

06:55 - by the attorney general's office in a major public corruption case

07:00 - involving theft of hundreds of thousands of dollars.

07:04 - Some of

07:05 - it taxpayer money, some of it nonprofit money.

07:08 - And what was really interesting

07:10 - and also incredibly bizarre was when the charges were announced,

07:15 - there was just a press release

07:16 - and there were no accompanying court documents that we could look at.

07:20 - And so as part of our reporting on the on the case,

07:24 - we asked for both the grand jury presentment

07:29 - and we also asked

07:31 - for any other court documents that they could make available.

07:35 - And we were eventually given some court records,

07:39 - but never given the grand jury presentment.

07:43 - And Paula here represented Spotlight and

07:49 - other news organizations that tried to force the attorney general's office

07:54 - to make that very critical document public.

07:59 - It lays out in a lot of specificity what the case is about.

08:02 - It lays out some of the evidence.

08:05 - And it was really important to try

08:08 - and to have that to understand the case and the strength of the case.

08:13 - Well, if I could pull you into this.

08:14 - As Angela mentioned in this case, the presentment was sealed.

08:16 - When is it appropriate to withhold arrest records?

08:19 - That's a great question.

08:21 - Arrest records can be withheld

08:24 - in certain circumstances, but it has to be pretty extraordinary.

08:29 - Otherwise, as Mike said, we end up in a situation

08:32 - that sometimes is seen in other countries where persons are held,

08:38 - their liberty is restricted and we don't know why.

08:41 - So for the most part, if a person here in

08:44 - the United States is arrested and charged with a crime,

08:47 - we get to know why, including not just the charges, but the bail.

08:52 - The attorneys who are involved.

08:54 - And then this document that Angela was talking about,

08:57 - the underlying allegations from the law enforcement agency

09:02 - that's so important to journalists doing their job so that they can

09:05 - then explain to the public this person was charged.

09:09 - Here's what authorities have said about the charges against him

09:13 - in some limited instances.

09:16 - Let's say there's still a suspect at large and revealing that kind of detail

09:21 - would allow the suspect still at large to get wind of the investigation.

09:26 - There can be a withholding of the charges, but it's very limited.

09:31 - For the most part, these these kinds of records are available

09:34 - to the public and to journalists who then report off of them

09:37 - to tell the public, here's what's happening in your community.

09:41 - It's really important.

09:42 - Public safety and criminal justice reporting helps

09:46 - inform us about trends and concerns within communities.

09:50 - So it should be just the rarest of circumstances when arrest

09:54 - warrant information is withheld for those that are not familiar.

09:57 - Can you tell us a little bit about your work

09:59 - with the Reporters Committee for the Freedom of the Press? Sure.

10:02 - The Reporters committee for Freedom of the Press is a nonprofit,

10:05 - nonpartisan organization based out of Washington, D.C.

10:09 - For more than 50 years, the organization has been providing free

10:13 - legal services to journalists like Angela and her colleagues.

10:17 - And I'm the Pennsylvania attorney.

10:20 - We have attorneys based in other states, but I help journalists like Angela.

10:24 - When there's a closed proceeding, we can go in

10:27 - and ask the court, Judge Kneeland, to say, Your Honor, why is this closed?

10:31 - We think this proceedings should be open.

10:34 - And so I represent news organizations across the Commonwealth

10:38 - and in trying to open up proceedings and documents

10:42 - that sometimes are closed and should not be.

10:46 - Angela, beyond the work of Polly's organization,

10:49 - what other tools do journalists have at their fingertips

10:52 - to access the courts when they need assistance?

10:55 - Well, the most

10:56 - fundamental thing, if you are in a county where you are actually either

11:01 - covering courts as a beat or you are somehow assigned

11:05 - to write about a specific court case, you can actually go to the courthouse.

11:10 - It is such an effective tool to be able to do that.

11:14 - And as somebody who

11:16 - many, many years ago covered courts, you get to know the personnel who

11:20 - works there, the they can explain to you what kind of documents are available.

11:26 - That is kind of a bygone era.

11:29 - And right now,

11:32 - you what we often do in cases of public interest

11:36 - and what the administrative Office of the Courts has done that has been

11:40 - incredibly helpful to us has been they've posted on their website.

11:45 - Any time there's a very big case, they will post

11:48 - it under a section of cases of public interest.

11:51 - They'll attach all the documents in the case.

11:54 - That is incredibly helpful.

11:55 - If you are on one side of the state and you are expected to write about

11:59 - a court proceeding.

12:00 - So that in particular has been very helpful in cases

12:05 - obviously, where there are records that are not publicly available,

12:08 - that the courts are not providing to us.

12:11 - And we feel that we have a case we call people like Paula

12:16 - and ask her to represent us in trying to make those documents public.

12:22 - Well, if I can come back to you for a moment.

12:23 - In some circumstances,

12:24 - the reporters committee is involved in getting access to settlement records.

12:27 - Why is this in particular more important sometimes?

12:31 - Well, when a judge or a court

12:35 - has a

12:35 - hand in looking at a proposed settlement in civil litigation

12:39 - and then endorsing or saying, yes, this settlement is okay,

12:43 - I'm going to put my stamp of approval on as a judge.

12:45 - That's part of the court record.

12:47 - And so we unfortunately see too many times where the parties in a settlement say,

12:54 - this should be sealed

12:55 - now if they're sealing it completely outside of the court process.

12:58 - It's a private agreement.

13:00 - We may not have access to that.

13:01 - But if it's part of the court proceeding,

13:05 - we need to again see, is this appropriate?

13:09 - Has the judge exercised her discretion appropriately,

13:12 - particularly when it involves children in Pennsylvania,

13:15 - settlements involving children who have to be approved by a judge?

13:19 - So access to those documents is really important,

13:22 - again, to make sure that justice is being meted out

13:26 - appropriately.

13:28 - Judge Neilan, if I could just.

13:30 - Yes, please go ahead.

13:32 - No, go ahead.

13:32 - I was about to interject, but I'll allow you.

13:34 - Go ahead.

13:36 - This takes us in a slightly different direction.

13:38 - But the Sixth Amendment

13:39 - to the Constitution calls for a speedy and public trial.

13:42 - Why are some proceedings closed to the public?

13:44 - What are the circumstances be?

13:46 - Well, if I could just before answering that,

13:48 - if I can circle back to what Paula had mentioned, because

13:54 - there's only really a limited

13:57 - number of cases that judges get involved

14:00 - with having to review and approve the settlement of the parties.

14:05 - If the case involves a minor, if the case involves an incapacitated party.

14:09 - If the case involves a death such that the wrongful death claim and the Survival

14:14 - Act claim has to be apportioned for inheritance tax purposes,

14:18 - or if it's a class action, they are the only cases that

14:22 - we get involved with having to review and approve

14:25 - or disapprove the settlement.

14:29 - If there are private litigants and there is it's not a death case.

14:32 - There's no minor, there's no incapacitated party.

14:35 - It's not a class action, as Paula had mentioned.

14:37 - And if anyone on the panel, for example, had

14:41 - a case against one another and they decided to settle it

14:43 - and have a confidentiality agreement, they're free to do so.

14:47 - But what we are addressing here

14:50 - today is when they come in seeking court approval of the settlement,

14:55 - and then as part and parcel of that, they request to have the settlement

15:00 - in the settlement documents, in the settlement amount sealed.

15:04 - What essentially they're are asking for is court

15:08 - sanctioned secrecy of public

15:11 - judicial records, of a taxpayer subsidized court system,

15:15 - which is not something that judges are to do lightly.

15:19 - Often times the parties will come in and say, well, we've agreed to this.

15:22 - Well, that's fine.

15:24 - But the appellate courts have cautioned this is not a pro forma matter

15:28 - where you just approve it in sealed or settlement materials

15:33 - because the parties have agreed to it.

15:35 - You have to conduct your own independent analysis, whether it's

15:38 - under the constitutional approach or the common law approach, and decide

15:42 - that the interest in secrecy outweighs the presumption of openness

15:48 - because someone will suffer a serious and clearly defined injury.

15:53 - If this settlement is is not sealed and we're required to give notice

15:59 - to the public that we are going to consider this request

16:02 - and to have the hearing and more importantly, to

16:04 - then make specific factual supporting findings.

16:09 - If we determine that sealing is appropriate.

16:13 - And it's important that that not only

16:17 - that, the lawyers know that when they're coming in

16:20 - to request the sealing, but also that that judges go about

16:25 - approaching these request in the proper manner

16:28 - according to the procedures that have been established by the appellate courts.

16:32 - But you mentioned that the Sixth Amendment right of defendant

16:37 - it's it's it's a right to a speedy trial, a public trial,

16:42 - a fair trial and a trial before an impartial jury.

16:46 - It's really the unusual situation

16:49 - where they would be able to seal

16:52 - or I should say, close to the public, any part of those proceedings.

16:57 - There may be instances, for example, where it's an ongoing investigation

17:01 - and some information is going to be presented to a judge to approve a warrant

17:06 - where it may be temporarily sealed or closed to the public.

17:10 - But that's the exception to the rule.

17:13 - In my experience,

17:16 - under the

17:17 - under the theory of applying protecting a fair trial.

17:20 - Are there tactics that a court can use to help protect the information

17:24 - or the release of information about a trial as it's ongoing?

17:29 - Sure.

17:29 - I mean, we always have the ability and we talk about a

17:32 - a less

17:35 - restrictive means of of protecting the different interests,

17:39 - whether they're privacy interests, whether it's an ongoing investigation.

17:42 - We can always order the release of certain information, but redact

17:48 - other material, which may be information

17:52 - that needs to be protected from the public for the time being.

17:55 - While the plea well say for example, an investigation is still ongoing.

18:01 - Mike, if I could include you in this.

18:02 - Along those lines, when is it appropriate for a judge to issue a gag order?

18:06 - Is there a test that kind of determines whether or not that would be appropriate?

18:10 - Well, the judge can issue a gag order to litigants whenever they feel

18:15 - that it's necessary to protect the fairness of the proceedings.

18:20 - Litigants can can try and challenge that.

18:22 - But the judge generally are given some discretion in that.

18:27 - What they can't do is then gag the people who are in the courtroom

18:31 - or the press on what they can report about what is happening.

18:35 - So lawyers are generally those ethical rules that sort of cover

18:39 - what you can say about an ongoing case that you're involved with.

18:43 - Judges can hem that in a little bit further,

18:46 - but what they can't do under the Constitution is restrict what

18:50 - what people outside of court are saying about what's going on in the proceedings.

18:54 - I'd like to shift and talk a little bit about privacy, Paula.

18:56 - You argued the case on behalf of the Bucks County Courier Times

18:59 - regarding the death of an inmate.

19:02 - None of the participants in the case wanted the information public.

19:07 - How much of influence or weight does it carry?

19:09 - If the wishes of the participants is to keep the record sealed?

19:13 - Well, I think this goes to something the judge was saying earlier.

19:16 - I mean, it's not uncommon for parties

19:19 - to come to the court and say, Your Honor, hey, we work this out.

19:22 - We don't want this exposed to the public.

19:24 - Just just accept this and sign off on this sealing order.

19:28 - And while the parties may have important reasons to them

19:33 - about why they don't want this information to be public, it's not

19:37 - constitutionally appropriate for a judge simply to adopt the parties wishes.

19:43 - The judge has to make particularly findings as as Judge Neal

19:46 - and talked about.

19:47 - So even in very tragic circumstances,

19:50 - when there's been a death, a suicide, a, you know,

19:55 - unfortunately, we see very tragic things in the courthouse.

19:58 - And if tragic, embarrassing or humiliating eating information

20:03 - was the test for sealing things from the public.

20:07 - Hardly anything in the courthouse would be available for scrutiny.

20:10 - So even though it's it's very understandable that that folks

20:15 - who have had a tragic loss or something terrible happened

20:18 - that leads them to the courthouse, those circumstances don't mean that

20:23 - the public is locked out of understanding what has happened in the courthouse.

20:27 - So those privacy interests have to be quite extreme

20:32 - and articulated by the judge on the record

20:35 - after a hearing where people are given

20:38 - the opportunity to say, wait a minute, I'm Angelo from Spotlight.

20:42 - I think that this record should be open.

20:45 - That's the test.

20:47 - But there are times where we see that

20:50 - not working in practice and hopefully educational forums like this

20:54 - give everybody a better understanding that simply having embarrassment

20:59 - or private circumstances are not enough to seal a court record or a settlement.

21:05 - Well, if I can get you to talk a little bit

21:06 - about another case that you argued, it was Hoffman versus Norfolk

21:09 - Southern. Can you give us a brief

21:11 - summary of the case and why the settlement was sealed?

21:13 - Yes, that case is actually pending.

21:16 - We just argued that

21:18 - a week ago in the Dauphin County Court of Common Pleas.

21:21 - And there a reporter from Pennlive use the Pennsylvania Right to know law,

21:27 - which is our public records law, to seek a settlement agreement

21:30 - that the Pennsylvania Fish and Boat Commission had executed with a man

21:36 - whose wife was killed on property that was

21:40 - kind of both railroad property in state agency property,

21:44 - when a state agency or a state township, county

21:48 - borough, anything like that pays out taxpayer money.

21:52 - We're able to see that through the right to know law.

21:55 - And so the reporter was told that she couldn't

21:58 - get the record because there was a sealing order in court

22:02 - and there it's that same kind of argument that's been articulated that the

22:06 - man whose wife

22:09 - died doesn't want to have extra scrutiny

22:12 - about how much money he received and things like that.

22:15 - So that's a pretty common example that we see playing out

22:19 - where a reporter will use the right to know law and say,

22:24 - I want to see this public record, but the court has sealed it.

22:28 - So we've got to jump through some hoops to get the judge to unseal it,

22:32 - because your taxpayer money and how it's being spent

22:36 - is absolutely available for public review.

22:39 - And a court order can't stand in that way.

22:42 - It's it's not appropriate.

22:44 - You talk a little bit more about that, particularly, does the use of taxpayer

22:47 - money increase the value in having those records unsealed?

22:50 - Yes, I mean, there's there's really no argument under Pennsylvania case law

22:55 - about withholding

22:57 - an agreement that

22:58 - has been paid out or made with taxpayer money.

23:01 - And we have seen that in some high profile examples

23:05 - with people who have lodged complaints about sexual harassment.

23:08 - And the government has paid out the state government has paid out money.

23:13 - We get to see those taxpayer agreements.

23:14 - In this case, law goes back decades under the old right to know law.

23:19 - It's void for public policy

23:21 - when the government pays out our money and then says, no, you can't see how we're

23:25 - spending the money.

23:26 - So that's that's a really important piece.

23:28 - When government money is being spent,

23:32 - we get to see how that money is being spent.

23:34 - And that's kind of a separate piece from the court,

23:38 - although sometimes a court order overlaps with the right to know law.

23:42 - If I can get both you, Paula and Mike, to respond a little bit to

23:45 - what are their standard arguments that you use frequently when you're trying

23:48 - to get records unsealed.

23:50 - Yeah, you kind of go back to first principles

23:53 - for most situations when the constitutional right applies.

23:57 - Whoever wants something sealed needs to show a compelling interest.

24:00 - So that's something it's got to be more than just a

24:03 - rational interest or something that you might want.

24:06 - It has to be something of almost

24:07 - the highest order is a reason to close a proceeding.

24:10 - And a lot of times you don't know what's behind the curtain.

24:13 - You don't know what what it is.

24:14 - That's the reason for something being sealed.

24:16 - So you really have to go back and say, like, what is the compelling interest?

24:20 - And do you, as Judge Nealon had said before,

24:22 - do you have to close the whole proceeding?

24:24 - Do you have to seal the whole record?

24:26 - Can you redact out just the witnesses, name

24:29 - the cooperating person, the informant?

24:31 - Could you just redact that

24:32 - and you kind of make

24:33 - those kinds of arguments and talk about the importance to the public?

24:37 - You know, is there the idea of fairness to the litigants,

24:41 - the idea of shining a spotlight onto the proceedings,

24:45 - the education that it provides

24:46 - to the public about that case, about how the court system operates?

24:50 - All of those things you kind of underscore in your arguments

24:53 - to the court a case I litigated in Blair County,

24:58 - Pennsylvania, on behalf of the Altoona

25:01 - Altoona mirror newspaper involved

25:03 - two separate cases brought by the parents of children

25:08 - who had allegedly been harmed by a school wrestling coach.

25:12 - Both those cases were sealed.

25:14 - In the end, the judge in Blair County did unseal them,

25:17 - but said that the information about the children

25:20 - who had been harmed would be withheld from the public.

25:23 - It was very graphic details about things that had to happened with the children.

25:28 - And so that was an appropriate balancing, as Judge Nyland was saying earlier.

25:33 - The public got to see what was happening against a defendant school district

25:38 - and how they were defending themselves against these allegations.

25:41 - But the very important privacy rights of children were were protected.

25:47 - So, you know, we we I think, as journalists and advocates

25:51 - for journalists are aware that sometimes that balancing does have to happen.

25:56 - But as my colleague from the Pennsylvania News

25:59 - Media Association often says, it should happen with a scalpel.

26:04 - The just the most narrow carve outs rather than a hatchet.

26:08 - And so that's, I think, what Judge Mullen was saying earlier very carefully.

26:13 - Look at how we can carve out what is the narrowest

26:19 - item that we need to protect from from public scrutiny

26:22 - and allow the public to see the remainder of the document.

26:26 - And without commenting on any of the pending litigation,

26:31 - because I'm not permitted to do so.

26:33 - Just to echo some of the things that Paula and Mike had said, first, I,

26:37 - I would also note that we now identify minors just by their initials

26:42 - rather than their full name.

26:44 - So I think that has also mitigated some of the privacy concerns

26:50 - in terms of identifying people

26:53 - who may as,

26:55 - for example, Paula indicated, may have been the victims

26:59 - of some type of egregious conduct such as sexual abuse.

27:03 - I would note that the the settlements that

27:07 - involve taxpayer funds, there's a pretty solid record

27:12 - of appellate decisions there, saying that if it's public money, it is subject to

27:18 - to disclosure and is not something that should be sealed.

27:21 - We often will hear from people representing townships,

27:25 - boroughs, different agencies say, well, it's covered by insurance.

27:30 - Well, there's usually a big deductible that goes along with it.

27:32 - So there's some taxpayer funded money being involved

27:36 - with the ultimate settlement.

27:38 - And most of these settlements also require some affirmative

27:44 - approval and action by the governing board.

27:47 - So that provides another basis, at least under the right to know law

27:51 - for the press and the public to get access to some of those settlements.

27:56 - Judge Stephen, how does the court approach requests for the selling of records?

28:01 - Well, I know how I do it.

28:03 - Unfortunately, all too often.

28:06 - Some of the situations that the other panelists had referenced in

28:10 - that is the lawyers will come in and say,

28:14 - your Honor, we've we have reached a settlement in this case and we've agreed

28:19 - that the matter is to be kept confidential and sealed.

28:21 - And it's kind of the settlement is approved and and the case is closed.

28:26 - What we are supposed to do is if a request is made to seal the settlement,

28:32 - is I issue

28:34 - an order scheduling it for a hearing, and it's a publicly available order

28:38 - so that if any member of the public or the press wishes

28:41 - to attend, they're permitted to attend.

28:44 - And at that time, a record needs to be made by the party requesting the sealing

28:49 - because they have the burden, they have the burden of establishing

28:53 - that the presumption of openness

28:56 - is outweighed by the interest in secrecy or privacy or whatever

29:01 - the other good cause arguments they will be advancing.

29:07 - And so we give them that opportunity to do so.

29:10 - And if at the end of the hearing, they have not established

29:13 - that that good cause, I will issue an order

29:18 - and perhaps an opinion where I will not seal it, I will temporarily

29:22 - seal it for 30 days to afford them the right to appeal my determination.

29:27 - Because obviously, if I if I deny the request to seal the record and file all the

29:35 - materials at the same time

29:36 - that the genie is out of the bottle, they can't then on appeal,

29:40 - if they were successful and I had air, they can't put the cap back in the bag.

29:44 - So I issue an order to where I, I will seal it

29:48 - temporarily for 30 days to see if it's appealed.

29:51 - If it is appealed, it will remain sealed.

29:53 - If it's not appealed, I will unseal.

29:56 - How common of occurrences?

29:57 - The ceiling of records.

30:00 - It's it's it's

30:03 - mostly in medical malpractice litigation or in product

30:07 - liability litigation where perhaps a manufacturer

30:11 - for whatever reason, does not wish to have in a public record

30:16 - the amount it has agreed to pay

30:18 - in the settlement of a case or a hospital or a health care provider.

30:22 - But often times the only

30:26 - reason that may be

30:27 - articulated at the time of the hearing is that this could cause some

30:31 - embarrassment to this particular doctor, this particular hospital.

30:35 - But there is appellate case law in Pennsylvania that says that's not enough

30:40 - to outweigh the presumption of openness

30:44 - and to make this public judicial records still available to the public.

30:49 - Angela, if I could pull you back into this.

30:51 - A few years ago, you covered the Catholic sex abuse investigation.

30:55 - Some of those grand jury records were sealed.

30:56 - Can you talk a little bit about your coverage

30:58 - and why those records were kept private?

31:00 - Sure.

31:00 - And I think it's sort of a unique circumstance because it does involve

31:05 - the grand jury process, which by its very nature is a secretive process.

31:09 - We do not, as the public or the press, have access

31:13 - to their proceedings.

31:15 - What we do have access to is what I mentioned earlier,

31:19 - which is this presentment or a report at the end of their session

31:25 - if they decide to bring criminal charges.

31:27 - In this case, again, it was very unique.

31:30 - It was the attorney general's office had been investigating

31:35 - six of the state's eight Catholic dioceses for four decades

31:40 - worth, allegations involving decades worth of abuse and cover up of

31:46 - of sexual abuse of children by clergy.

31:49 - And so it was at the end of that two year investigation,

31:55 - there was a grand jury report that was prepared and issued.

31:59 - And we all knew from the press side

32:02 - that there this report would be coming out.

32:06 - But there was delay, and we kept questioning like, what?

32:11 - You know, what's this delay?

32:13 - What's it about?

32:14 - And the attorney general's office was again, its hands were kind of tied

32:19 - at the time.

32:20 - I was working for the Philadelphia Inquirer.

32:22 - We were one of about a half dozen news organizations

32:26 - who petitioned to make this grand jury report public.

32:31 - Long story short, it turned out that there had been

32:35 - this major behind the scenes court battle

32:41 - being waged by some of the people who were named in the report

32:47 - who felt that

32:50 - the report should not be made public, that they were being unfairly maligned,

32:54 - that there was not enough evidence to support things

32:57 - that were in this report, which, again, did not, because of the statute

33:01 - of limitations, did not have criminal charges involved.

33:04 - But it was a report detailing alleged abuse.

33:08 - And they also argued reputational harm, among other things.

33:14 - And the case eventually went to the Supreme Court.

33:18 - The Supreme Court issued a decision that the report had to be released,

33:24 - But with the names of these people who had been arguing

33:28 - behind the scenes, their names had to be redacted.

33:32 - The report was eventually released with the redacted

33:35 - names, and a few months later, the Supreme Court made a yet

33:39 - another decision to keep those names redacted. So

33:43 - the press was pretty good at being able

33:45 - to figure out who was who underneath the black marks.

33:50 - But it was it was a real

33:54 - a very interesting case study and

33:57 - grand juries in Pennsylvania, which I'm sure the lawyers on the panel

34:01 - can talk more about its role, its function,

34:06 - its powers and such.

34:07 - So in the end, there was, I think, what

34:12 - everybody on this panel has mentioned, there was disclosure,

34:17 - but there were limited redactions within that to

34:21 - to protect people's rights.

34:24 - And Francine, I would say for the viewers who are interested in the grand jury,

34:28 - there's a really interesting report that was prepared several years ago.

34:32 - It was the grand jury report.

34:34 - It's available on the APC website, but it is dozens of pages long.

34:39 - And it gets into this case that Angela just talked about as well as other cases.

34:44 - And Judge Neil

34:45 - and I don't know if there's anything you can share, but it's Pennsylvania

34:48 - and all other states are very different in how their grand jury processes work.

34:54 - Here we have both local grand juries and state wide.

34:58 - And so what may happen in York County, for instance, may be very different

35:03 - than what's happening in Lackawanna County or Venango or take your pick.

35:08 - So, you know, Pennsylvania's 67 counties all have their own

35:13 - 67 district attorneys and ways of doing things.

35:17 - But there's also the statewide grand jury process.

35:19 - So I think just, you know, the further

35:22 - reading on that topic, for those viewers who are interested in Judge,

35:26 - I don't know if you anything you wanted to tag on there.

35:30 - Yeah, well, there I mean, grand jury proceedings

35:32 - are generally shrouded in secrecy and there's some good

35:36 - public policy reasons for the the initial secrecy.

35:40 - Obviously,

35:41 - the prosecution would I would tell you, we often have cooperating witnesses

35:47 - who we do not want to deter them from cooperating with us for fear that

35:52 - their name will be published in the paper as the investigation is ongoing.

35:57 - Because remember, a grand jury investigation

35:59 - until there's the presentment, is an ongoing investigation.

36:04 - And conversely, oftentimes there will be people who may be mentioned

36:10 - during the course of the grand jury proceeding,

36:12 - not necessarily a criminal activity involving them, but perhaps

36:16 - other embarrassing type activity that that person

36:20 - would not want to have made public.

36:23 - And a grand jury proceeding as the lawyers would know,

36:27 - the only participants in it besides the grand jury is the prosecutor.

36:31 - And whatever evidence and witnesses the prosecutor wishes to.

36:36 - So you could have someone who is not being charged with criminal conduct,

36:42 - but their name may be coming up through the testimony of other individuals.

36:46 - And that person may not even know that their name is being mentioned.

36:49 - And they certainly don't have the opportunity to perhaps come in and say,

36:53 - I'd like to present some other evidence that shows that that's not true.

36:58 - So there are some general reasons why I actually had an experience.

37:03 - boy, about 15, 18 years ago

37:05 - when I was the supervising judge

37:08 - for our local county grand jury here, where there were concerns about

37:12 - I some of the defendants in that case, that there were grand jury leaks.

37:17 - And I had to actually hire a special prosecutor to investigate those leaks.

37:20 - And I know that's happened at the state level as well.

37:25 - Mike, is the court

37:26 - obligated to explain when a court record is sealed?

37:29 - It is.

37:30 - Judge Neal and Paul kind of alluded to this.

37:33 - They say the Constitution requires a certain process before

37:36 - something is sealed, before proceeding is closed.

37:39 - First is Judge Kneeland said the court has to provide public notice That informs

37:44 - people, informs the informs the public, hey, we're thinking

37:47 - about closing a proceeding or somebody has asked us to seal this record

37:51 - so that people can come down to court and ask for it to be open

37:53 - or for the court to explain the reasons.

37:55 - Then there has to be an argument about that.

37:58 - The sides have to explain, you know, this is the basis why we want

38:01 - this record sealed, This is why we want this proceeding closed.

38:04 - And the press or the public get to say, no,

38:06 - it should be open for this reason and this reason and this reason.

38:09 - And then the court can consider that.

38:10 - But the law is very clear that once courts make a decision,

38:15 - they have to clearly articulate the reason for closing, because this is

38:19 - such an important right to the public, because we value the openness so much.

38:23 - The court has to say, I'm closing this down

38:26 - because of X and you have to the court has to explain

38:30 - what the interest is for the closure, say that it's considered alternatives.

38:34 - I think Judge Kneeland had mentioned there.

38:36 - Are there reasonable alternatives?

38:37 - I've considered these, and this is the most narrowly tailored

38:41 - resolution that I can come up with.

38:43 - I've redacted just the names.

38:44 - I've only closed this much of the record or I'm only shutting the courtroom

38:49 - for these 3 minutes so that we can hear this fact.

38:52 - And it has to go through that analysis on the record in writing,

38:55 - because the appellate court will need to have an opportunity to look at it.

38:59 - And a lot of times, if that is not done, the superior court or the Supreme Court

39:03 - will look at it and say, we don't know why you closed it,

39:06 - although you may have had some discretion in doing it, we're going to reverse you

39:10 - simply because you haven't even put on the record why that is.

39:14 - And so it's very important for the public to understand,

39:17 - for the litigants understand, and then for the appellate court

39:19 - to understand why that decision is being made.

39:21 - He's seen covers the en banc sessions of the state appellate courts.

39:24 - But beyond that, court sessions generally are not televised.

39:27 - Why is that?

39:29 - It's a good question.

39:31 - It's because

39:32 - in Pennsylvania, at least, they experienced by state.

39:36 - But in Pennsylvania, at least there is rules of judicial administration

39:41 - and there's rules in the criminal procedures

39:44 - that court proceedings are not televised, they're not broadcast.

39:48 - And different people have different views about that.

39:51 - I personally think that in most instances they should be open and televised

39:56 - and we can talk about that.

39:56 - But by and large, it's because the judiciary in Pennsylvania

40:00 - has made the decision that the proceedings should not be televised.

40:04 - Well, Francine, I think a lot of people who watch Court TV

40:07 - or who have seen highly publicized trials in other states often wonder,

40:12 - wait a minute, why are the proceedings here in Pennsylvania

40:16 - not on Court TV or some other station?

40:19 - But it is as as Mike said, it's been a a policy of our

40:24 - Supreme Court of Pennsylvania for many years since television

40:27 - was available, that this is not something that our judiciary has chosen to do.

40:32 - There are arguments on both sides about the merits of allowing

40:36 - televised proceedings.

40:37 - And, you know, you can think of think of the trial that you last watched

40:43 - of a highly publicized case that was on TV and available.

40:47 - And, you know, we can probably all remember certain

40:50 - judges or, litigants who we remember from watching these things on TV.

40:55 - And some of the ideas are.

40:56 - Do people behave differently in court if they're on camera?

41:00 - And I think, you know, that's something that has been debated

41:03 - and and, you know, we'll see where Pennsylvania ends up.

41:07 - But I agree with Mike.

41:09 - It would it would be nice to see Pennsylvania to

41:12 - think about

41:13 - that as something that has happened in other jurisdictions

41:17 - with apparently very little concern, without cameras in the courtroom.

41:22 - How do you ensure that our judicial processes are working appropriately?

41:27 - Well, I think the press plays a role in that.

41:31 - Being able to be there and report on it and ask the attorneys in the case

41:38 - as questions and write stories about them is is a huge piece of trying

41:44 - to bring some type of accountability to the process.

41:48 - Having said that, you know, I stress that most reporters are not lawyers.

41:53 - So, you know, there are limits to what we can do.

41:57 - But for generally speaking,

42:00 - that is the what your question is the reason why

42:04 - it is so important to have open

42:07 - courtrooms, open hearings and documents

42:12 - that are available not just to the press, but to the public and

42:16 - just to interject, I think you could never have

42:20 - television in every courtroom around the Commonwealth in every case,

42:24 - but certainly for ones that are of particular public significance

42:29 - or where there's an interest and it would be useful.

42:31 - We saw in Minnesota during the pandemic,

42:35 - Derek Chauvin's trial was televised and one of my partners

42:40 - in Minnesota represented the press in ensuring that that could happen.

42:44 - And at that point the courts were closed to the public because of COVID.

42:48 - And I think that we saw, unlike the circus of O.J.

42:51 - Simpson, you know, a generation ago, the proceedings there operated very smoothly.

42:56 - People were not playing to the camera and the public got a chance to

42:59 - to learn about the process, to learn about the case.

43:03 - There's one theory of open courts, talks about the therapeutic value

43:06 - of seeing a trial.

43:08 - And there the public there was a crime that garnered national attention,

43:12 - and the public could watch and see what would happen, see justice

43:16 - meted out, or in cases where somebody has got a criminal,

43:19 - defendant has gotten railroaded,

43:21 - having the opportunity to see that person vindicated in court.

43:25 - All of that is very important.

43:26 - And, you know, it would be helpful, I think, if Pennsylvania

43:30 - went in that direction.

43:31 - Not all cases need to be tried, but the public

43:34 - televised way but in the default should be that.

43:38 - And judges can then have the discretion to pull it back.

43:41 - Since you mentioned the pandemic, Judge, even could you talk a little bit about how

43:44 - the courts were able to provide access during a time of social distancing?

43:48 - Yes. Well, I mean, for the in-person trials and of course, in

43:52 - Lackawanna County here for example, we resumed trials in September of 2020.

43:57 - I have the jury box right behind me, as you can see the size of it.

44:01 - And we we could not have 12 jurors in that box socially distance,

44:06 - six feet east, west, north, south.

44:09 - So where the public would generally sit out,

44:13 - the gallery is where we had to put the jury

44:16 - in order to distance in that way, and then to make sure that we complied

44:21 - with our public requirements, because now

44:24 - the public could not come into the actual courtroom.

44:27 - We had cameras set up in the courtroom here that filmed

44:31 - the witnesses would actually testify from the jury box.

44:35 - And there were temporary screens set up in front of the gallery here

44:38 - where the jury would sit so that they could view the testimony

44:42 - and the and I had individual monitors on our bench.

44:45 - But then we had the proceedings piped across the walls of the courthouse

44:50 - and to others, satellite courtrooms so that members of the public,

44:54 - if they wish to view the proceedings, could do so.

44:57 - I would add that there were also other proceedings that out of necessity

45:02 - during the course of the pandemic that we conducted by advanced

45:06 - communication technology, our sentencings were being done

45:10 - during the periods of our local judicial emergencies

45:13 - by Zoom or by YouTube or some other dedicated platforms

45:19 - during the course of those local judicial emergencies

45:22 - and in the statewide judicial emergencies as well.

45:25 - The Pennsylvania Rule of Judicial Administration,

45:28 - which prohibits generally the broadcasting

45:32 - or recording of court proceedings, was suspended

45:36 - so that we could live stream all those proceedings

45:40 - and someone could just click on Zoom or YouTube and view

45:44 - the actual court proceeding that was being conducted by advanced

45:48 - communication technology during the course of the pandemic.

45:52 - I would add for the reporters, our local press actually

45:56 - preferred it because rather than having to travel

45:59 - to the courthouse to cover a hearing or cover a sentencing,

46:02 - they were able to do so from their offices or their homes.

46:06 - But that suspension of that rule of judicial administration

46:10 - only lasted as long as we had the judicial emergencies in place.

46:15 - And since they are no longer in place in the Commonwealth,

46:19 - we've now gone back to, at least in trial court proceedings where they are not

46:24 - broadcasted or recorded with the exception of ceremonial events like swearing in

46:29 - and the naturalization proceedings and things of that nature.

46:33 - The appellate arguments are broadcast,

46:36 - audio and video with a 48 hour delay.

46:39 - I believe it is on on PCN, but we do not have any broadcasting

46:44 - of any trial court level proceedings in the Commonwealth any longer.

46:50 - Angela, if I could shift back to you, what challenges does the press face

46:53 - today in covering the courts?

46:56 - Well, I think one major challenge is,

47:00 - you know, there's doesn't seem, at least from the press perspective,

47:04 - that there is uniformity across courts in what the rules are in

47:09 - terms of whether you can bring a cell phone or a laptop

47:12 - or some other recording device into a courtroom.

47:16 - For instance, you know, in one of the appellate courts, you always have to

47:21 - not just silence your cell phone, you have to turn it completely off.

47:26 - There's no laptop

47:29 - laptops available.

47:30 - And that is difficult.

47:33 - We the the nature of our jobs is that we work on deadlines.

47:38 - So being able to,

47:42 - you know, either record through and now there's apps

47:45 - that will do a transcription right there within seconds.

47:50 - You know, it would be helpful to have the ability

47:54 - to do that consistently in court proceedings.

47:59 - So that I think is is definitely one thing.

48:03 - The other is

48:06 - I think you all nailed it is

48:08 - being able to view in real time court proceedings.

48:12 - Again, not every case is going to be written

48:15 - about by the press, but there are

48:19 - usually certain cases and everybody is pretty familiar

48:23 - with which ones they are, where there is great interest

48:29 - from the public and the press and writing about them

48:33 - and being able to have a

48:36 - you know, even audio would be helpful,

48:39 - although that is, you know, that has its own set of issues.

48:43 - Sometimes you don't know talking and that could be a bit problematic.

48:47 - But being able to consistently have

48:50 - some kind of live feed to view court,

48:54 - I think not only would help the press obviously do our jobs,

48:58 - but I think it would help the public make their own decisions

49:02 - about what happens in a courtroom rather than reading about about it

49:06 - in their newspaper or hearing about it on the night, you know, television news.

49:11 - And I think for the public that is a huge value.

49:15 - And this probably brings in a whole other discussion.

49:17 - But I think the public now is pushing back a lot

49:21 - against press accounts and what the press does.

49:25 - So I think as a result, it would be incredibly helpful

49:29 - to have those proceedings available for them to to view in real time.

49:34 - Paula, if I could piggyback on something Angela just said,

49:36 - do you think that public confidence or opinion of both the press

49:39 - and the courts has changed at all in recent years? Yes.

49:41 - I mean, if you if you look polling nationally

49:44 - and studies that have been done, the public's confidence

49:48 - in institutions, including the government and the press has eroded.

49:51 - And so access to courts and the public being able

49:55 - to see it and understand it for themselves is so critical.

49:59 - When we closed the court room doors or seal off

50:04 - things that are happening, that only

50:06 - increases the amount of suspicion and the lack of confidence

50:10 - in our institutions like the courthouse and the judicial system.

50:14 - So it is critical for our democracy and restoring that confidence

50:18 - that we have access to the courts and that the journalists have

50:22 - access to the courts so that they can write about it.

50:24 - Because sometimes we hear

50:26 - criticism of the press by saying, well, why aren't you writing about this?

50:30 - Or why aren't you? Why isn't your film crew out?

50:33 - And sometimes it's because they can't get the story

50:36 - because the case has been sealed or something like that.

50:39 - So having that increased visibility, whether it's through audio

50:44 - in the courtroom camera or just ensuring that we have

50:47 - complete access to every document and proceeding under the law

50:51 - is is really to ensuring a healthy and functioning democracy.

50:56 - And I think one thing we haven't talked about, and I'm sure Judge Neil

50:59 - and sees it often is when students and citizens come in

51:03 - and see the court room and kind of get a better understanding of how it works.

51:07 - That's a really healthy step toward building up confidence.

51:12 - But unfortunately, we've seen fewer civics classes and other

51:16 - studies within school systems to make sure that these often complicated

51:21 - topics really kind of provided in an accessible manner.

51:25 - So I'm just excited that we're here talking about this

51:29 - transparency during Sunshine Week and it's a time for us

51:32 - to all take stock of why our democracy is important

51:36 - and what we can do in our communities and our court systems to support

51:40 - the judicial system and support the press.

51:43 - Judge Neilan, why is it important to maintain faith in our institutions?

51:48 - boy, how much time do have?

51:51 - I know it is and you know it.

51:56 - I'll reference back to the comments that were made earlier

52:01 - about polling is showing that people don't have as much faith and confidence

52:06 - in the institutions, in the press and in some of the different

52:13 - organizations that we've relied upon

52:15 - for years to provide important information

52:19 - to the public as to how our government is is functioning.

52:24 - Paula had mentioned about when students come by or other civic groups.

52:28 - It would also point to the discussions I've had with people

52:32 - when they have served jury duty for the first time,

52:35 - and they will to me afterwards when the case is over

52:38 - and say, Boy, this was nothing like I thought it would be this.

52:42 - This really ran well.

52:43 - And the lawyers were prepared and everything ran smoothly.

52:47 - And and we'll come away with a,

52:50 - you know, a higher opinion of the proceedings.

52:53 - Now, that's not every single person who has ever served on jury duty,

52:57 - but I think a lot of that is because they're not as familiar with it.

53:03 - And the more that we can let them know that it functions

53:07 - better than they realize, the better off society will be.

53:11 - But again, we can only convey that to them

53:14 - if if we have a free press that has open access

53:18 - to all of our court proceedings which are subject to certain limitations.

53:23 - Mike, I'll give you the last word.

53:24 - What can be done to further instill confidence

53:26 - both in our press as well as our judicial system?

53:31 - It's a very good question.

53:34 - I think just like Paula said, I think the idea of

53:37 - Sunshine Week, the idea of transparency, the idea of open access to courts,

53:42 - to having access to court records, to government records, to government

53:46 - meetings, to government proceedings for people to be able to

53:48 - to show up to see what's happening at their their town council,

53:52 - to see what's happening in their state government, to review the records

53:55 - themselves, to walk into the courthouse, go into Judge Nolan's courtroom,

53:58 - and you'll have great faith in the way that the process operates.

54:01 - Walk into the courtroom.

54:02 - You know, down in Dauphin, see what's happening there,

54:05 - go into your county's courtroom, see what's going on on a day to day basis.

54:09 - And that will give you the confidence.

54:12 - Find out.

54:12 - Read more sources of media.

54:14 - Go to Spotlight PA,

54:15 - see the good work that they're doing that will inspire confidence.

54:18 - And then if you have access to government

54:20 - records, you can go and check Angela's work.

54:22 - You can go and say, you know, look at the record.

54:24 - A lot of times you'll link to it

54:26 - and you can go and read it and say like, is she reporting on an accurate?

54:29 - Is it accurately?

54:30 - And you'll find out.

54:31 - Yes, she is. She's she's conveying this information. I think

54:35 - that would instill great confidence.

54:37 - That concludes today's discussion.

54:38 - Our guests have been Paula Newton Burk

54:40 - with the Pennsylvania News Media Association.

54:42 - Also local legal initiative, attorney for the Reporters Committee for Freedom

54:45 - of the Press, Judge Terence Nealon, Lackawanna County Court of Common Pleas,

54:50 - Angela Columbus from Spotlight, PA and Michael Barry, partner with Ballard Spahr.

54:54 - Thank you all for joining us today.

54:56 - I'm Francine Short. Sir. Thank you for watching.