How to Get Sealed Court Documents: Motion to Unseal Guide

What does it mean when a record is sealed?

Sealing is a court act, not a private deal. Under California Rule 2.551, a record must not be filed under seal without a court order ^[1]. Under the same rule, the court must not permit sealing based solely on the agreement or stipulation of the parties ^[1].

The judge also decides who gets to see the record ^[2]. The Supreme Court has said that decision is best left to the trial court's sound discretion, based on the facts and circumstances of the particular case ^[2]. Your request will turn on the details of the case in front of you.

This guide is general information, not legal advice. Rules differ by court and by state, so check your own court's rules before you file anything.

What right do you have to see court records?

You start with a general right, but it has limits. In Nixon v. Warner Communications (1978), the Supreme Court said the courts of this country recognize a general right to inspect and copy public records and documents ^[2]. The same Court said the right to inspect and copy judicial records is not absolute ^[2].

The constitutional picture for civil cases is unsettled at the top. The Reporters Committee says the Supreme Court has not directly addressed whether there is a constitutional right of access to civil proceedings ^[3]. It also reports that every federal court of appeals to consider the question has concluded the First Amendment gives a qualified right of access to civil trials and their related proceedings and records ^[3].

The Reporters Committee says that where a constitutional presumption of access applies, a court may close proceedings only after making specific, on-the-record findings ^[3].

Why do courts seal records, and what limits apply?

Judges seal records for stated reasons. The Second Circuit has said interests such as protecting ongoing investigations, witness safety, national security, and trade secrets may be enough to defeat the presumption of access ^[4].

Those reasons do not win automatically. The Second Circuit also said the presumptions of access are only presumptions, and they do not automatically mean documents must be unsealed ^[4].

The burden matters. Citing Ninth Circuit precedent, the Reporters Committee says the party seeking access restrictions must show the restriction is strictly and inescapably necessary ^[3]. The Second Circuit said a decision to keep documents sealed must rest on specific, on-the-record findings ^[4]. Those findings must explain why sealing is essential to preserve higher values and is narrowly tailored ^[4].

State rules can set their own test. In Colorado civil cases, the Reporters Committee says a court may limit access to court files on a party's motion only if it finds that harm to a person's privacy outweighs the public interest ^[5].

How do you ask? Start with the simple route

The Supreme Court has declined to specify the proper method for requesting access ^[3]. So start with what many courts allow. The Reporters Committee says many courts accept a less formal challenge, such as an oral request or a letter to the judge overseeing the case ^[5].

Keep the request specific and exact. The Reporters Committee, describing Virginia practice, says a request should unambiguously identify the access sought, with as much specificity as the circumstances allow ^[5]. Name the case, the document or hearing, and what you want to do: read it, copy it, or attend ^[5].

If you want background on documenting your work as a reporter, read our guide to press credentials for independent reporters.

Video from Pennsylvanians for Modern Courts (YouTube). Open at youtube.com. Content from youtube.com loads only if you click.

Step by step: how do you file a motion to unseal?

If the informal route fails, you or a lawyer may need a written motion. Under California Rule 2.551, a party or a member of the public may move, apply, or petition to unseal a record ^[1]. Here is the general path.

1. Pin down the record. Identify the exact document or hearing, with as much specificity as you can ^[5].
2. Learn your court's method. The Supreme Court has not set a national method, so read the local rules ^[3].
3. Decide whether you must intervene. Some courts require it and others do not. The next section shows examples ^[5].
4. Draft the motion. If you intervene under Rule 24(c), the motion must state the grounds and come with a pleading that sets out the claim or defense ^[6].
5. Keep the motion narrow. The Reporters Committee, describing Virginia practice, says a written motion for leave to intervene for the limited purpose of asserting the public's qualified right of access, with a supporting memorandum citing legal authorities, ordinarily will suffice ^[5].
6. File on time. The Reporters Committee, discussing the Eleventh Circuit, says an intervention must be timely filed ^[5].
7. Serve the parties. Under California Rule 2.551, notice of any motion, application, or petition to unseal must be filed and served on all parties in the case ^[1].

Then the judge decides. Nothing in this list assures a result.

The document below is a sample media motion to intervene and unseal a judicial record. Reading it shows the structure a lawyer might follow.

Document · Reporters Committee for Freedom of the Press (rcfp.org PDF)

Motion of the Reporters Committee for Freedom of the Press and The New Yorker to Intervene and to Unseal Judicial Record (Gino v. Harvard, D. Mass., filed Nov. 3, 2023)

Open at rcfp.org

Document from Reporters Committee for Freedom of the Press (rcfp.org PDF). Open at rcfp.org. Content from rcfp.org loads only if you click.

How do the rules differ by court and state?

Rule 24 is one route in some federal courts. Under Rule 24(b)(1)(B), a court may permit anyone to intervene who has a claim or defense that shares a common question of law or fact with the main action ^[6]. The Reporters Committee says that in the First Circuit, the mechanism for third-party claims of access in civil cases is intervention under Rule 24 ^[5].

Other courts take a different path. Here are examples from the research:

• Fifth Circuit: the Reporters Committee notes that courts there do not require the media to formally intervene ^[5].
• California: the Reporters Committee says a Court of Appeal, in a case called Overstock, disapproved of formal third-party intervention by the media ^[5]. Rule 2.551 separately lets a party or a member of the public move to unseal a record ^[1].
• Eleventh Circuit: the Reporters Committee says any intervention must be timely filed ^[5].
• Virginia: the Reporters Committee describes a written motion for leave to intervene, with a memorandum, as ordinarily enough ^[5].
• Colorado: the Reporters Committee says a court may limit access to civil court files on a party's motion only if it finds privacy harm outweighs the public interest ^[5].

These examples do not cover every state or circuit. Look up your court before you pick a form ^[5].

The next video walks through one state's court-record rules for journalists. Treat it as an example, not a rule for your state.

What does the judge weigh?

Expect two questions. Does a presumption of access apply to this record? If so, do the reasons for secrecy beat it ^[4]?

The Second Circuit has said reasons that may defeat access include ongoing investigations, witness safety, national security, and trade secrets ^[4]. The Reporters Committee also notes that parties sometimes claim secrecy to protect trade secrets or sensitive business information ^[3]. The Second Circuit said a judge who keeps records sealed must support that choice with specific findings on the record ^[4].

Your motion should speak to those points. Say what you seek and why the public has an interest. Then address whether sealing is narrowly tailored to the interest the other side raises ^[4].

Remember the limit. The Supreme Court has said the right to inspect and copy judicial records is not absolute ^[2]. A well-built motion can still lose.

Which records stay hard to reach?

Grand jury material is a hard case. Under federal Criminal Rule 6(e)(6), records, orders, and subpoenas relating to grand-jury proceedings must be kept under seal to the extent and as long as necessary to prevent unauthorized disclosure of a grand jury matter ^[7].

The rule does leave a door open. A federal court may authorize disclosure of a grand-jury matter at a time, in a manner, and under conditions the court directs ^[7]. That means any request goes to the court, and the court sets the terms. Talk to a lawyer before you file one.

Some records may also be gone. In Diduck, a Second Circuit case, a transcript and a brief the press organizations sought had been destroyed under the Southern District of New York's standard document retention policies ^[4]. Ask early whether the record you want still exists.

When should you call a lawyer?

Call early if the record matters to your story. The judge has sound discretion, and the presumptions of access are not automatic wins ^[2]. ^[4] The right form of request also varies by court ^[5]. A media lawyer can tell you whether your court expects formal intervention ^[5].

Bring a short file. Include the case name, the exact record you want, and any letter or oral request you already made ^[5]. Precise requests work better than broad ones ^[5].

For research, the Reporters Committee's Open Courts Compendium covers access rights and procedure by jurisdiction ^[3]. If you work alone, you can apply to join the National Press Association, but membership does not confer legal rights or guaranteed court access. Membership is not legal representation.

The video below discusses court-access issues.

If a judge denies your request, ask your lawyer about the next step. Each case turns on its own facts ^[2].

If you need legal help, the Reporters Committee for Freedom of the Press runs a Legal Hotline for journalists and media lawyers ^[8].