Public Access to Administrative Proceedings Katie Townsend – RCFP Litigation Director 2015 Pipeline Safety Trust Conference November 19, 2015

The First Amendment Right of Access The Supreme Court has held there is a qualified First Amendment right of access to criminal trials. “Free speech carries with it some freedom to listen. What this means in the context of trials is that the First Amendment guarantees of speech and press, standing alone, prohibit government from summarily closing courtroom doors which had long been open to the public at the time that Amendment was adopted.” Richmond Newspapers v. Va. Lower federal courts have extended this right to civil proceedings. Chief Justice Warren E. Burger

Experience and Logic To determine whether the First Amendment right of access applies, courts ask: (1) Whether the place and process have historically been open to the press and public; and (2) Whether public access will play a significant positive role in the functioning of the particular process in question.  Justice William J. Brennan Jr.

The Common Law Right of Access The Supreme Court has also recognized a common law right “to inspect and copy public records and documents, including judicial records and documents.” Nixon v. Warner Communications.

The Right of Access to Administrative Proceedings Courts have recognized a First Amendment right of access to certain types of administrative adjudications. The type of administrative adjudication plays a role in determining whether public access is required by the Constitution.  

The Wilberg Mine Disaster

The Wilberg Mine Disaster In finding the news media and public had a constitutional right of access to the hearings, the court wrote: “The natural tendency of governmental officials is to hold their meetings in secret. They can thereby avoid criticism and proceed informally and less carefully . . . . But it is exactly that type of public awareness and opportunity to criticize that is the very foundation of our democracy.” --Society of Professional Journalists v. Secretary of Labor.

Values Served by Openness (1) Promotion of informed discussion of governmental affairs; (2) Promotion of the public perception of fairness, which can be achieved only by permitting full public view of the proceedings; (3) Providing a significant community therapeutic value as an outlet for community concern, hostility, and emotion; (4) Serving as a check on corrupt practices by exposing the judicial process to public scrutiny; (5) Enhancement of the performance of all involved; (6) Discouragement of perjury.

Values Served by Openness “Democracies die behind closed doors. The First Amendment, through a free press, protects the people's right to know that their government acts fairly, lawfully, and accurately . . . . When government begins closing doors, it selectively controls information rightfully belonging to the people. Selective information is misinformation.” Detroit Free Press v. Ashcroft.

Agency Rules Requiring Openness Recognizing the value of openness, the following agencies require their administrative adjudications to be presumptively open: Federal Reserve Board; Federal Communications Commission; Federal Trade Commission; Securities and Exchange Commission; Food & Drug Administration; National Labor Relations Board; and Department of Labor. On Regulations.gov, the federal government posts rules, comments, adjudications, and supporting documents from federal agencies, including the EPA, Department of Energy, and even the Pipeline and Hazardous Materials Safety Administration.