28 C.F.R. § 50.9

Policy with regard to open judicial proceedings

Read at: eCFRecfr.gov CornellLII GovInfogovinfo.gov CasesGoogle Scholar

Because of the vital public interest in open judicial proceedings, the Government has a general overriding affirmative duty to oppose their closure. There is, moreover, a strong presumption against closing proceedings or portions thereof, and the Department of Justice foresees very few cases in which closure would be warranted. The Government should take a position on any motion to close a judicial proceeding, and should ordinarily oppose closure; it should move for or consent to closed proceedings only when closure is plainly essential to the interests of justice. In furtherance of the Department's concern for the right of the public to attend judicial proceedings and the Department's obligation to the fair administration of justice, the following guidelines shall be adhered to by all attorneys for the United States.

(a) These guidelines apply to all federal trials, pre- and post-trial evidentiary proceedings, arraignments, bond hearings, plea proceedings, sentencing proceedings, or portions thereof, except as indicated in paragraph (e) of this section.

(b) A Government attorney has a compelling duty to protect the societal interest in open proceedings.

(1) No reasonable alternative exists for protecting the interests at stake;

(2) Closure is clearly likely to prevent the harm sought to be avoided;

(3) The degree of closure is minimized to the greatest extent possible;

(4) The public is given adequate notice of the proposed closure; and, in addition, the motion for closure is made on the record, except where the disclosure of the details of the motion papers would clearly defeat the reason for closure specified under paragraph (c)(6) of this section;

(5) Transcripts of the closed proceedings will be unsealed as soon as the interests requiring closure no longer obtain; and

(6) Failure to close the proceedings will produce;

(i) A substantial likelihood of denial of the right of any person to a fair trial; or

(ii) A substantial likelihood of imminent danger to the safety of parties, witnesses, or other persons; or

(iii) A substantial likelihood that ongoing investigations will be seriously jeopardized.

(d) A government attorney shall not move for or consent to the closure of any proceeding, civil or criminal, except with the express authorization of:

(1) The Deputy Attorney General, or,

(2) The Associate Attorney General, if the Division seeking authorization is under the supervision of the Associate Attorney General.

(e) These guidelines do not apply to:

(1) The closure of part of a judicial proceeding where necessary to protect national security information or classified documents; or

(2) In camera inspection, consideration or sealing of documents, including documents provided to the Government under a promise of confidentiality, where permitted by statute, rule of evidence or privilege; or

(3) Grand jury proceedings or proceedings ancillary thereto; or

(4) Conferences traditionally held at the bench or in chambers during the course of an open proceeding; or

(5) The closure of judicial proceedings pursuant to 18 U.S.C. 3509 (d) and (e) for the protection of child victims or child witnesses.

(f) Because of the vital public interest in open judicial proceedings, the records of any proceeding closed pursuant to this section, and still sealed 60 days after termination of the proceeding, shall be reviewed to determine if the reasons for closure are still applicable. If they are not, an appropriate motion will be made to have the records unsealed. If the reasons for closure are still applicable after 60 days, this review is to be repeated every 60 days until such time as the records are unsealed. Compliance with this section will be monitored by the Criminal Division.

(g) The principles set forth in this section are intended to provide guidance to attorneys for the Government and are not intended to create or recognize any legally enforceable right in any person.

[Order No. 914-80, 45 FR 69214, Oct. 20, 1980, as amended by Order No. 1031-83, 48 FR 49509, Oct. 26, 1983; Order No. 1115-85, 50 FR 51677, Dec. 19, 1985; Order No. 1507-91, 56 FR 32327, July 16, 1991]

Notes of Decisions

Cited in 24 cases, 1977–2018 · leading case: United States v. Howard L. Criden, Harry P. Jannotti, Louis C. Johanson, George X. Schwartz. Appeal of Philadelphia Newspapers, Inc, 675 F.2d 550 (3rd Cir. 1982).

Sort: Relevance Newest Treatment

United States v. Howard L. Criden, Harry P. Jannotti, Louis C. Johanson, George X. Schwartz. Appeal of Philadelphia Newspapers, Inc, 675 F.2d 550 (3rd Cir. 1982). “525 , 535 (1980) (court shall make specific findings for the record “that reasonable alternatives to closure will not adequately protect defendant’s right to a fair trial”); Judicial Conference Advisory Committee on the Federal Rules of Criminal Procedure, Proposed Amendments to…”

United States v. McVeigh, 119 F.3d 806 (10th Cir. 1997). “” 28 C.F.R. § 50.9 (c)(6). 4 .In their reply brief, the Media Representatives agree that mandamus review would be appropriate in the event that we conclude there is no jurisdiction under the collateral order doctrine.”

In Re Globe Newspaper Co., 729 F.2d 47 (1st Cir. 1984). “519 , 535 (1980); 28 C.F.R. § 50.9 (1982). 11 . We think it likely that the suppression hearing will be primarily concerned with the sufficiency of the authorization and execution of the Title III surveillance, and that most, if not all, of this information will pose no threat…”

Cobell v. Norton, 157 F. Supp. 2d 82 (D.D.C. 2001). “Indeed, 28 C.F.R. § 50.9 codifies the Department of Justice’s policy in support of public access.”

United States v. AT & T Inc., 310 F. Supp. 3d 161 (D.C. Cir. 2018). “28 C.F.R. § 50.9 (2017) (reciting "the vital public interest in open judicial proceedings" and stating the policy that DOJ counsel "shall not move for or consent to closure of a proceeding" unless "[n]o reasonable alternative exists for protecting the interests at stake" and…”

Pikes Peak Fam. Hous., LLC v. United States, 40 Fed. Cl. 673 (Fed. Cl. 1998). “See 28 C.F.R. § 50.9 (Department of Justice policy acknowledging the "vital public interest in open judicial proceedings" and the “strong presumption against closing proceedings or portions thereof”); John Gibeaut, Secret Justice, 84 A.”

In Re United States Ex Rel. The Pulitzer Publ'g Co. & Edward H. Kohn, 635 F.2d 676 (8th Cir. 1980). “See also 28 C.F.R. § 50.9 , 28 Crim.L.Rptr. 2146 (Nov.”

United States v. Cont'l Airlines, Inc. (In Re Cont'l Airlines), 150 B.R. 334 (D. Del. 1993). “28 C.F.R. § 50.9 ." (D.I. 5 at 3 n. 2) 4 .”

United States v. Alcantara, 396 F.3d 189 (2d Cir. 2005). “” 28 C.F.R. § 50.9 (2004). The guidelines, which apply to, inter alia, plea proceedings and sentencing proceedings, id.”

United States v. Carpentier, 526 F. Supp. 292 (E.D.N.Y 1981). “On that date, Alexandro was sentenced to a four-year term of incarceration, but Carpentier’s sentence was again adjourned to enable the Government to obtain authorization from the Attorney General of the United States to move to close Carpentier’s sentencing hearing pursuant to…”

United States v. Honken, 438 F. Supp. 2d 983 (N.D. Iowa 2004). “In a response filed December 19, 2003, the government states its opposition to closing any hearing on its motion for an anonymous jury, relying on the Department of Justice’s statement of policy regarding closure of proceedings set forth in 28 C.F.R. § 50.9 (c). First, the…”

Plan. Rsch. Corp. v. Fed. Power Comm'n, 555 F.2d 970 (D.C. Cir. 1977). “AP’s request was submitted by the Commission to the United States Department of Justice under the terms of 28 CFR 50.9. 1 The Commission’s letter of transmittal of November 22, 1974, was accompanied by a proposed letter to AP denying the latter’s request in part on the basis of…”

Show all 24 citing cases →

Annotations are extracted automatically from the opinions in the Syfert caselaw corpus and ranked by authority, recency, and treatment. Dots show Syfertize treatment of the citing case itself.