'More Than Tangential': When Does the Public Have a Right to Access Judicial Records?

Abstract

Public accountability requires open proceedings and access to documents filed with the courts. The strong policy favoring access to judicial records creates a presumption against sealing documents without a compelling reason.

The Ninth Circuit Court of Appeals recently held that this presumption of access arises when a proceeding relates “more than tangentially” to the merits. This is a low standard under which many types of motions qualify for the compelling reasons test.

With too much litigation occurring in secret, courts can use the “more than tangential” standard proactively to keep electronic case dockets available to citizens.

Keywords: open records, judicial records, public records, court records, court documents, open access, public access, right of access, right of public access, presumption of access, presumption of public access, compelling reasons, unsealing request, unsealing of records, motion to unseal, protective orders

JEL Classification: K1, K4