Public confidence in our justice system demands transparent proceedings and open records. Transparency in criminal prosecutions “guards against the miscarriage of justice by subjecting the police, prosecutors, and judicial processes to extensive public scrutiny and criticism,”1 1. Sheppard v. Maxwell, 384 U.S. 333, 350 (1966).and transparency in civil litigation similarly empowers the press and public to check abuse and promotes “the appearance of fairness so essential to public confidence in the system.”2 2. Press-Enterprise Co. v. Superior Court, 478 U.S. 1, 9 (1986) (internal marks and citation omitted).

The transparency imperative applies to the records of judicial proceedings just as fully as it does to the proceedings themselves. Access to records in criminal cases is essential because nearly all prosecutions today are resolved through plea deals, with no formal evidentiary proceedings.3 3. According to the U.S. Sentencing Commission, in FY2023 more than 97% of the sentences imposed in federal court were entered on a plea of guilty to the crime charged. U.S. Sentencing Commission, 2023 Annual Report at 16, https://www.ussc.gov/about/annual-report-2023The same is true in civil litigation, where federal data shows that trials are held in less than 1 percent of civil lawsuits, with most resolved through dismissal, summary judgment, or settlement.4 4. Jeffrey Smith and Grant McQueen, “Going, Going, But Not Quite Gone: Trials Continue to Decline in Federal and State Courts. Does it Matter?”, Judicature, Vol. 101, No. 4 (Winter 2017), https://judicature.duke.edu/articles/going-going-but-not-quite-gone-trials-continue-to-decline-in-federal-and-state-courts-does-it-matter/The public’s ability to follow and understand what transpires within the justice system is merely theoretical if the motion papers and other material filed with the court are not available for review. The common law has long acknowledged just this, recognizing an affirmative, qualified, public right to inspect and copy judicial records.5 5. See, e.g., Nixon v. Warner Commc’ns, Inc., 435 U.S. 589, 597 (1978); United States v. Amodeo, 71 F.3d 1044, 1048 (2d Cir. 1995); In re Cont’l Ill. Sec. Litig., 732 F.2d 1302, 1308 (7th Cir. 1984). Many courts—state and federal—have found that the First Amendment independently ensures public access to most judicial records.6 6. E.g., U.S. v. Ochoa-Vasquez, 428 F.3d 1015, 1030 (11th Cir. 2005); In re Search Warrant, 855 F.2d 569, 573 (8th Cir. 1988); In re NBC, Inc., 828 F.2d 340, 346-47 (6th Cir. 1987); In re N.Y. Times Co., 828 F.2d 110, 114 (2d Cir. 1987); Associated Press v. In re Washington Post Co., 807 F.2d 383, 390 (4th Cir. 1986); In re Globe Newspaper Co., 729 F.2d 47, 52 (1st Cir. 1984); Associated Press v. U.S. Dist. Ct., 705 F.2d 1143, 1145 (9th Cir. 1983); Grube v. Trader, 420 P.3d 343, 353 (Haw. 2018); Daily Press, Inc. v. Commonwealth, 739 S.E.2d 636, 640 (Va. 2013); Republican Co. v. Appeals Ct., 812 N.E.2d 887, 892 n. 8 (Mass. 2004); Skolnick v. Altheimer & Gray, 730 N.E.2d 4, 16 (Ill. 2000); Wichita Eagle Beacon Co. v. Owens, 27 P.3d 881, 883 (Kan. 2001); State v. Schaefer, 599 A.2d 337, 342 (Vt. 1991).

Yet, many state criminal court records, tax court records, and even records of certain federal civil proceedings are not available for inspection online. It is high time to end this impediment to meaningful judicial transparency and mandate online, electronic access to judicial records as the default rule. This can largely be done without new technology investments, without undermining privacy interests, and without imposing new administrative burdens on court clerks.

State Court Transparency Problems

At the dawn of the internet, when court records were filed on paper and transferred to digital form by the clerk’s office, many states adopted rules prohibiting public online access to criminal court records to protect private data and to avoid the dissemination of incorrectly transcribed information.7 7. See, e.g., Electronic Access to Criminal and Family Court Records: Hearing on S. 246 Before the U.S. Judiciary Comm., 2007-2008 Leg. (Vt. Jan.11, 2008) (audio recording , pt.2, at 10:03-14:16); Electronic Access to Criminal and Family Court Records: Hearing on S. 246 Before the S. Judiciary Comm., 2007-2008 Leg. (Vt. Jan.11, 2008)(audio recording, pt.3, at 30:09-31:31) (indicating that Vermont prohibited online criminal record access out of concern that dockets placed online could contain errors generated by court clerks transcribing information from paperfiles by hand, and to protect litigants’ ostensible privacy interests).But today, lawyers are nearly universally required to file motion papers electronically and have an ethical obligation to redact certain private data from judicial records. The reasons for the initial restrictions on remote electronic access no longer apply, yet many persist. Nearly two-thirds of states still have rules limiting public online access to criminal court records to some degree even though the need for online record access applies with particular force to criminal proceedings, where the public and press’s interest in real-time oversight is at its peak, and where criminal defendants, once charged, possess significantly diminished privacy interests in the unsealed records of their cases.

The access restrictions vary from state to state. Typically, the technology is in place to allow online access to the court file in a criminal prosecution, but remote access is restricted to the parties and their attorneys. The public is denied remote access to motion papers and related filings in criminal prosecutions, so these can be viewed only at the courthouse, in person, during operating hours, where the records are accessed electronically through an online terminal, just as they could readily be accessed from home or an office. These bans on remote access make it extremely burdensome for journalists and members of the public to follow the course of a criminal prosecution and to monitor the functioning of the criminal courts. Simply learning the reasoning behind the parties’ motions or assessing the reasonableness of their positions requires a significant investment of time and effort. And to obtain a copy of a record for future reference, a reporter must generally pay the clerk to print a hard copy or take pictures of each page on the court terminal with a phone.

Federal Court Transparency Problems

The same prohibition against public online access to motions and other filings readily available to the parties exists in federal tax courts. Tax Court Rule 27(b) draws a strict line between party access and public access, providing public online access only to the docket and any court opinion or order. Full electronic access to case files is only available in person at the courthouse.

Federal Rule of Civil Procedure 5.2(c) similarly prohibits online press or public access to, inter alia, any “action or proceeding relating to an order of removal, to relief from removal, or to immigration benefits or detention.” Under this rule, “[u]nless the court orders otherwise,” public online record access is restricted to the docket sheet and any court order ultimately entered; individuals must travel to the courthouse to access motion papers, supporting evidentiary submissions, and all other records through an online terminal. Because of Rule 5.2(c), more than 50,000 habeas corpus petitions filed in recent immigration cases are public only in theory.8 8. Madeleine O’Neill, “The Rabbit Hole: How the search for one court record became a nationwide movement.” Court Watch (June 7, 2026), https://www.courtwatch.news/p/the-rabbit-hole-how-the-search-for-one-court-record-became-a-nationwide-movement.

Each of these state and federal rules reverses the working presumption at common law that judicial records are not hidden from public view. They deny meaningful access to records the public has a substantial interest in seeing, make it more likely that misconduct and abuse will go undetected, and reduce public confidence that justice is being done.

A Straightforward Solution

Because most courts now require parties to submit records online in digital format, and maintain those records electronically, the public right of access must be recognized as a right to access those records where they exist, online. The internet has become the “principal source[] for knowing current events,”9 9. Packingham v. North Carolina, 582 U.S. 98, 107 (2017). and requiring a courthouse visit to inspect a record imposes a serious impediment to the transparency that is “pivotal to public perception of the judiciary’s legitimacy and independence.”10 10. U.S. v. Aref, 533 F.3d 72, 83 (2d Cir. 2008) (internal quotations and citation omitted).

This impediment can readily be removed by amending the offending court rules or, if needed, through legislation declaring a qualified right of online public access to court records. Such a law would:

• Contain legislative findings about the importance of transparency to maintain confidence in our system of justice and affirm the value of contemporaneous online public access to court records;
• Define broadly the “judicial records” presumptively available for online public inspection to include everything filed with a court that is relevant to the performance of the judicial function and useful in the judicial process, regardless of whether a judge ultimately chooses to use the record in determining a litigant’s substantive legal rights; and11

11. See Lugosch v. Pyramid Co. of Onondaga, 435 F.3d 110, 121-123 (2d Cir.) (explaining need for broad definition of the “judicial records” presumptively available for public inspection).

• Require that such judicial records must be available to the public online, absent a judicial determination, made on a record-by-record basis, that a compelling governmental interest requires an exemption from the requirement for online access.

The law would remove any requirement for physical presence in a courthouse to examine a judicial record but would not limit a court’s ability to seal records from public view under existing standards. Privacy, safety, and other considerations currently deemed sufficient to justify sealing a record or otherwise restricting public access would not be altered, but the practice of keeping large categories of court records behind a barrier would be ended.

Acknowledgements

This comment draws on research by Yale Law students Hannah Berkman, Abi Heath, Ara Johnson, Nick Jones, Bryce Morales, Ryan Fore, and Anna Selbrede.