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New York Civil Liberties Union v. New York City Transit Authority: NYCTA Must Open Its Meetings To Public Observers
The New York City Transit Authority ("NYCTA") appeals from an order of the district court for the Southern District of New York (Sullivan, J.) enjoining the enforcement of an NYCTA policy requiring third parties to obtain the consent of those contesting notices of violation before NYCTA's Transit Adjudication Bureau in order to observe such hearings. We hold that the First Amendment guarantees the public a presumptive right of access to the NYCTA's adjudicatory proceedings, and that the NYCTA has not overcome that presumption.
          
New York Civil Liberties Union v. New York City Transit Authority, 10-0372-cv

Before: Leval, Calabresi, Lynch, C.JJ.

10-0372-cv

07-22-2011

Cite as: New York Civil Liberties Union v. New York City Transit Authority, 10-0372-cv, NYLJ 1202504254147, at *1 (2d Cir., Decided July 20, 2011)

Before: Leval, Calabresi, Lynch, C.JJ.

Decided: July 20, 2011

ADDITIONAL DEFENDANT

H. Dale Hemmerdinger, Elliot G. Sander, Defendants

ATTORNEYS

For Plaintiff-Appellee: Christopher Dunn, New York Civil Liberties Union Foundation, (Arthur Eisenberg, on the brief), New York, N.Y.

For Defendant-Appellant: Richard Schoolman, Office of the General Counsel, New York City Transit Authority, (Valerie K. Ferrier, on the brief), New York, N.Y.

For Amici Curiae The New York Times Company, et al., in support of Plaintiff-Appellee. David A. Schulz, Jacob P. Goldstein, Levine Sullivan Koch & Schulz, LLP, New York, N.Y.

For Amicus Curiae The Association of the Bar of the City of New York: Brian Kreiswirth, Committee on Civil Rights, The Association of the Bar of the City of New York, Marjorie Lindblom, Evan Saucier, Kirkland & Ellis LLP, New York, N.Y.

*1

The New York City Transit Authority ("NYCTA") appeals from an order of the district court for the Southern District of New York (Sullivan, J.) enjoining the enforcement of an NYCTA policy requiring third parties to obtain the consent of those contesting notices of violation before NYCTA's Transit Adjudication Bureau in order to observe such hearings. We hold that the First Amendment guarantees the public a presumptive right of access to the NYCTA's adjudicatory proceedings, and that the NYCTA has not overcome that presumption.

Affirmed.

*2
GUIDO CALABRESI, C.J.:

Defendant-Appellant New York City Transit Authority ("NYCTA") promulgates Rules of Conduct ("Rules") for those who use the city's public transportation and its associated facilities. N.Y. Pub. Auth. Law §1204(5-a); see N.Y. Comp. Codes R. & Regs. §1050 et seq.1 All New York City police officers are authorized to issue citations for violations of the Rules. New York Civil Liberties Union v. New York City Transit Authority, 675 F. Supp. 2d 411, 414 (S.D.N.Y. 2009) ("NYCLU"); see N.Y. Comp. Codes R. & Regs. §1050.12. A police officer has discretion to issue either a summons to New York Criminal Court ("Criminal Court") or a notice of violation for the Transit Adjudication Bureau ("TAB"), a department in the NYCTA where an alleged Rule—breaker may contest the citation in an in-person hearing. NYCLU, 675 F. Supp. 2d at 414;

see N.Y. Pub. Auth. L. §1209-a(3). In each forum, a neutral decisionmaker determines whether the alleged violator has broken a Rule and imposes a penalty for such violations.

When a person who is issued a summons contests the citation in court, that hearing is, by statute, open to the public. N.Y. Judiciary Law §4 (stating that, absent exceptions not relevant here, "[t]he sittings of every court within this state shall be public, and every citizen may freely attend the same…."). NYCTA policy, in contrast, excludes from a TAB proceeding any observer to whose presence the person contesting the notice of violation, or "respondent," objects.

Plaintiff-Appellee New York Civil Liberties Union ("NYCLU") brought suit under 42 U.S.C. §1983 to enjoin this policy, claiming, inter alia, that the policy violated the NYCLU's First Amendment right of access to government proceedings.2 The district court (Sullivan, J.) granted a preliminary, and then a permanent, injunction. NYCLU, 675 F. Supp. 2d at 439; New York Civil Liberties Union v. New York City Transit Authority, No. 1:09-cv-3595 (RJS) Doc. 39 (January 22, 2010), Doc. 40 (January 29, 2010). On appeal, the NYCTA claims that the public has no right of access to administrative adjudicatory proceedings generally and that, even if such a right exists, it should not apply to TAB hearings. We disagree.

The public's right of access to an adjudicatory proceeding does not depend on which branch of government houses that proceeding. To determine whether a particular adjudicatory forum should be presumptively open to the public, courts ask whether the forum has historically been open and whether openness enables its proper functioning. In the present case, both lines of inquiry lead squarely to the same answer. We reach no broad conclusions about the openness required of administrative proceedings generally. But we conclude that the First Amendment guarantees the public a qualified right of access to the administrative adjudicatory forum at issue in this case, and that no grounds have been adduced by the NYCTA supporting its rules limiting that right. We therefore affirm.

BACKGROUND

I. The Transit Adjudication Bureau

From 1966, when the Rules were first enacted, until 1986, when the TAB first began operating, the New York Criminal Court ("Criminal Court") had exclusive jurisdiction over citations for Rules violations. NYCLU, 675 F. Supp. 2d at 415. A 1984 statute created the TAB to lessen the burden on the Criminal Court and to increase the rate at which fines were collected from Rules violators. See N.Y. Pub. Auth. Law §1209-a. The statute also increased the fine that could be imposed: while the Criminal Court is limited to a fine of no more than $25 for a violation of an NYCTA Rule, the TAB may fine a violator up to $100, with an additional penalty of up to $50 for failing to respond to a notice of violation. N.Y. Pub. Auth. Law §1204(5-a); see also NYCLU, 675 F. Supp. 2d at 414. (The Criminal Court may also sentence a violator to a maximum of 10 days' imprisonment, NYCLU, 675 F. Supp. 2d at 414, but the record suggests that this penalty is rarely, if ever, imposed.)

The police officer citing the violation has discretion to choose whether to issue a citation to Criminal Court or a notice of violation to the TAB. As the district court observed, "no violation appears to be, by definition, only returnable to one of the venues." NYCLU, 675 F. Supp. 2d at 415; see N.Y. Pub. Auth. Law §1209-a(3) (giving the TAB "non-exclusive jurisdiction over violations of" the Rules).

A person who receives a TAB notice of violation may pay the fine without contesting it, contest it by mail, or contest it at an in-person hearing. In 2008, officers issued 125,155 notices of violation returnable to the TAB. That same year, 88,236 notices of violation were paid without contest, and 19,028 were contested at in-person TAB hearings. Attorneys appointed by the NYCTA President and paid on a per-diem basis preside over TAB hearings as TAB hearing officers. N.Y. Pub. Auth. Law §1209-a(2).

The TAB can issue subpoenas, "accept pleas…hear and determine…charges of transit infractions…impose civil penalties...and enter judgments and enforce them, without court proceedings, in the same manner as the enforcement of money judgments in civil actions." N.Y. Pub. Auth. Law §1209-a(4)(a)-(e), (g). A final order issued by the TAB serves as a "bar to…criminal prosecution" for the same conduct. Id. 1209-a(9)(b). TAB guidelines provide that respondents may be represented by counsel. NYCLU, 675 F. Supp. 2d at 417; see Guidelines Governing Proceedings Before the Transit Adjudication Bureau §1.7 ("TAB Guidelines").3 Respondents may show up at the TAB office any time during the period stated on their notices of violation and receive a hearing on a first-come, first-served basis.4 But if a hearing is scheduled by the TAB (as is sometimes done to facilitate the production of witnesses or evidence), the respondent must be told its date and location. NYCLU, 675 F. Supp. 2d at 417. Hearing officers identify the parties and issues in the case; advise respondents of their rights to a hearing, representation, cross-examination, document production, and appeal; and oversee the presentation of motions, cases in chief, and rebuttals. Id. at 417-18. TAB guidelines govern the timing, formats, and procedures for filing documents, id. at 418, and specify that a Rules infraction must be established by clear and convincing evidence, with any affirmative defenses to be established by a preponderance of the evidence, id. Witnesses are sworn and exhibits may be introduced. Id. Respondents may appeal a hearing officer's decision to an internal appeals board and, from there, to state court. Id. at 419. The TAB is required by statute to "compile…complete and accurate records relating to all charges and dispositions." N.Y. Pub. Auth. Law §1209-a(4)(f). In other words, in these and many other particulars, the TAB acts very much like a court of first instance.

At the same time, the TAB's powers and procedures are not the same as a court's. To enforce a subpoena that is not obeyed, the TAB "may make application to the [New York] supreme court." Id. §1209-a(7)(e). Although a TAB final order "may be enforced without court proceedings in the same manner as…money judgments entered in civil actions," id. §1209-a(9)(b), the TAB may need to "apply to a court of competent jurisdiction for enforcement of" such a decision, id. §1209-a(4)(g). Most of the rules of evidence do not apply to TAB hearings, id. §1209-a(7)(e), and no pre-hearing motions or discovery are permitted, TAB Guidelines §§2.3, 2.8. The notice of violation itself, without additional corroboration, is deemed prima facie evidence of a violation. Id. §2.1. And, significantly, the records the TAB compiles on charges and dispositions are, by statute, exempt from disclosure under New York's Freedom of Information Law. N.Y. Pub. Auth. Law §1209-a(4)(f); see N.Y. Pub. Officers Law §87.5

II. The TAB's Access Policy

The NYCTA describes its long-term access policy as one of presumptive openness to the public. Under that policy, a person who wishes to observe a TAB hearing must twice obtain the consent of the respondent whose case is being heard. If the respondent objects either time, the observer must be excluded from the hearing. A prospective observer must give TAB security personnel her name and inform them of her wish to observe a hearing. When the respondent is called, TAB officials are supposed to call the observer as well. The hearing officer, who meets respondents at the door leading to the hearing rooms, then asks the respondent if he objects to the observer's presence at the hearing. If the respondent objects, the observer may not enter. If the respondent does not object, the three proceed to a hearing room. There, the observer must state her name for the record, and the hearing officer again asks whether the respondent objects to the observer's presence. If he does not, the hearing can proceed. If the respondent does object to the observer's presence, the observer must leave before the hearing begins. TAB personnel do not ask why a respondent objects to an observer's presence and do not attempt to evaluate the reason, significance, or propriety of the observer's presence. A respondent's objection by itself conclusively bars an observer from a hearing.

Although this policy was only put in writing in March 2009, after the NYCLU complained to the NYCTA about access to TAB hearings, Martin Schnabel, the NYCTA's vice president and general counsel, testified that the policy had been in place for many years as an unwritten practice. Mr. Schnabel also stated that the NYCTA Board and the Metropolitan Transit Authority played no role in adopting the access policy, which has not been formally promulgated as a rule. Instead, he testified, "the matter was discussed among…TAB personnel and Transit Authority legal personnel." But, he continued, the "ultimate judgment as to what the policy should be at this juncture is mine."

Mr. Schnabel stated his belief that "allowing people to attend regardless of the wishes of the respondent may well have the effect of chilling the appearance of some percentage of respondents," who would feel their privacy so invaded by an open hearing as to lead them to decline to have a hearing at all. Mr. Schnabel explained that the rationale underlying the policy was preventing such a "chilling" effect on respondents who might otherwise avail themselves of the opportunity to contest their notices of violation, but who would do so in person only if they had the power to exclude third parties from their hearings.

Mr. Schnabel further testified that he had collected no evidence and conducted no studies on which he based his conclusion that open access would discourage respondents from seeking TAB hearings. The NYCTA did submit a declaration from Debra Siedman DeWan, a long-time TAB hearing officer, who listed reasons respondents might "wish to maintain their privacy when testifying." These included the existence of embarrassing medical conditions or other physical or mental illnesses; an inability to pay the fines; and the fear that a parent or a parole or probation officer would learn of the hearing.

III. The NYCLU's Allegations

According to its complaint, the NYCLU is an organization that advocates for "open governmental and judicial proceedings." As an example, the NYCLU submitted materials indicating that it had worked successfully to open hearings at the New York City Taxi and Limousine Commission to the public.

The NYCLU further asserts that it is "involved in advocacy about New York City Police Department policies and practices." For instance, the NYCLU has urged the New York City Police Department to ensure that officers know that bystanders are entitled to film and photograph police activity in public transit areas and advocated changes in the police department's public transit sting operations. The NYCLU has also investigated the demographic characteristics of those stopped and frisked by New York City Police Department officers on public transit, and concluded that minorities receive a disproportionate number of citations for Rule violations. These investigative and advocacy activities, the NYCLU alleges, give it "a particular interest in observing TAB hearings in which New York City Police Department officers testify."

The NYCLU also represents clients issued notices of violation. The NYCLU alleges that the inability to observe TAB hearing freely leaves it "seriously hampered in its ability to advise clients" about their own hearings. Finally, the NYCLU has asserted that it "plans to promptly start monitoring TAB hearings" if the access policy is enjoined.

According to the NYCLU's complaint, law students working under the direction of an NYCLU attorney attempted to observe TAB hearings on several occasions. Some would-be observers were simply denied access to hearings without more. Security guards or hearing officers told them that observation was against the law, that the hearings are not open to the public, or just that they could not enter. Others were told they had to obtain a respondent's consent. On one occasion, "the head hearing officer denied the law student's request to observe a hearing unless she could identify a consenting respondent. This requirement prevented her from observing a hearing." On another occasion, after having been told that observers were not permitted, a law student spoke to a security supervisor who, recognizing the student, "offered to request a random individual's permission to let the student sit in on a hearing," which the student was allowed to do "once someone consented."

IV. Proceedings Below

The district court determined that TAB hearings are presumptively open under the First Amendment, and that therefore limits to access are subject to strict scrutiny. Since a respondent's objection conclusively bars a third party from observing a hearing and "respondents may object for any reason at all" to the presence of an observer, the district court held that the policy was not strictly tailored to a compelling governmental purpose, and specifically is not tailored to the NYCTA's stated purpose of preventing the chilling of respondents' willingness to contest their notices of violation in person. NYCLU, 675 F. Supp. 2d at 438-39.

Accordingly, the court granted the NYCLU's motion for a preliminary, and ultimately a permanent, injunction requiring the NYCTA to open TAB hearings to the public absent "specific, on-the-record findings that closure of a proceeding is narrowly tailored to meet a higher governmental value." Id. at 439. The NYCTA appeals this decision, claiming that no presumptive right of access adheres to administrative adjudicatory proceedings. In the alternative, the NYCTA argues that, even if such a right attached to some administrative adjudicatory proceedings, it should not apply to the TAB. The NYCTA also challenges the NYCLU's standing to sue. For the reasons that follow, we affirm the district court.

DISCUSSION

I. Standards of Review

We review a district court's grant of a preliminary injunction for abuse of discretion, which "occurs when the district court bases its ruling on an incorrect legal standard or on a clearly erroneous assessment of the facts." Bronx Household of Faith v. Bd. of Educ., 331 F.3d 342, 348 (2d Cir. 2003). "To obtain a preliminary injunction a party must demonstrate…that it will be irreparably harmed if an injunction is not granted." Id. at 348-49. For mandatory injunctions, which "alter rather than maintain the status quo," such as the one at issue here, "the movant must show a 'clear' or substantial' likelihood of success" on the merits. Id. at 349. The requirements for a permanent injunction are "essentially the same" as for a preliminary injunction, except that the moving party must demonstrate "actual success" on the merits. The district court is authorized to determine, as it did here, that the evidence before it suffices for that purpose. Amoco Prod. Co. v. Village of Gambell, 480 U.S. 531, 546 n.12 (1987). Our standard of review remains the same.

Whether a plaintiff has standing to sue is a question of law that we review de novo. Shain v. Ellison, 356 F.3d 211, 214 (2d Cir. 2004).

II. Standing

To have standing, a plaintiff must demonstrate an "actual and imminent, not conjectural or hypothetical" threat of a "concrete and particularized" injury in fact that is "fairly traceable to the challenged action of the defendant" and that "a favorable judicial decision will likely prevent or redress." Summers v. Earth Island Inst., 129 S. Ct. 1142, 1149 (2009) (citing Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 180-81 (2000)).

An organization can have standing to sue in one of two ways. It may sue on behalf of its members, in which case it must show, inter alia, that some particular member of the organization would have had standing to bring the suit individually. See, e.g., Warth v. Seldin, 422 U.S. 490, 511 (1975) (calling this approach "representational" standing); Irish Lesbian & Gay Org. v. Giuliani, 143 F.3d 638, 649 (2d Cir. 1998) (calling it "associational" standing). In addition, an organization can "have standing in its own right to seek judicial relief from injury to itself and to vindicate whatever rights and immunities the association itself may enjoy." Warth, 422 U.S. at 511; Havens Realty Corp. v. Coleman, 455 U.S. 363, 379 n.19 (1982) ("Organizations are entitled to sue on their own behalf…."). Under this theory of "organizational" standing, the organization is just another person—albeit a legal person—seeking to vindicate a right. To qualify, the organization itself "must 'meet[] the same standing test that applies to individuals.'" Irish Lesbian & Gay Org., 143 F.3d at 649 (quoting Spann v. Colonial Village, Inc., 899 F.2d 24, 27 (D.C. Cir. 1990)) (alteration in the original); see also Nnebe v. Daus, No. 09-4305—cv,—F.3d —, 2011 WL 2149924, at *6-*7 (2d Cir. March 25, 2011, revised May 31, 2011) (confirming that "nothing prevents an organization from bringing a §1983 suit on its own behalf so long as it can independently satisfy the requirements of Article III standing," and that "only a perceptible impairment of an organization's activities is necessary for there to be an injury in fact" satisfying the requirements of standing (internal quotation marks omitted)).

The NYCTA claims that the NYCLU lacks standing because it failed to identify any individual member of the NYCLU who currently has standing to challenge the TAB access policy. But as the district court explained in its lucid opinion, the NYCLU does not bring its challenge under an associational/representational theory of standing. Rather, it sues to vindicate its own rights as an organization with goals and projects of its own. NYCLU, 675 F. Supp. 2d at 425-26. As it does not sue on behalf of injured members, it need not identify any that have standing. The individuals described in the NYCLU's submissions as having attempted to observe TAB hearings are not listed because they are injured members of the organization. They are, instead, its agents or representatives, and it is the organization itself that claims injury.

The NYCTA also claims that the district court was wrong to conclude that the NYCLU's attempts to observe TAB hearings "have been frustrated in the past." Id. at 427. According to the NYCTA, NYCLU attempts to observe TAB hearings were blocked by misinformed individual employees acting "in violation of long-standing TAB policy." The NYCTA suggests that this problem was resolved once the access policy was written down and distributed.

As discussed above, however, the NYCLU's complaint details at least two instances in which TAB personnel correctly conveyed TAB's current access policy and, pursuant to it, required would-be observers to obtain the consent of a respondent in order to be allowed to observe a hearing. In both cases, when the NYCLU wished to observe a hearing, the person representing the organization was barred from doing so without obtaining a respondent's consent.

The NYCTA further argues that the NYCLU lacks standing because only TAB personnel ever prevented its representatives from attending a hearing. NYCLU representatives were never excluded from a hearing "by any respondent." The NYCLU, however, challenges not the conduct of respondents but the TAB access policy as implemented by TAB personnel. Accordingly, this argument has no bearing on the NYCLU's standing.

For its part, the NYCLU has alleged an interest in open access to TAB hearings as part of its organizational mission of advocating for "open governmental and judicial proceedings." This mission, it asserts, is specifically relevant to the instant case (a) because of the NYCLU's investigation and advocacy regarding police conduct in the transit system and (b) as a matter of its professional responsibility to clients. The NYCLU has further shown that the access policy has impeded, and will continue to impede, the organization's ability to carry out this aforementioned mission. We agree that the NYCLU has alleged a cognizable interest and both past and imminent injuries to it. Accordingly, the district court correctly found that the NYCLU has standing to bring its challenge. We therefore turn to the putative right of access on which that standing is based.

III. The First Amendment Right of Access to Government Proceedings

Courts and commentators have long recognized the centrality of openness to adjudicatory proceedings: "'Without publicity, all other checks are insufficient: in comparison of publicity, all other checks are of small account.'" In re Oliver, 333 U.S. 257, 271 (1948) (quoting 1 Jeremy Bentham, Rationale of Judicial Evidence 524 (1827)). While the Sixth Amendment guarantees "the right to a…public trial" to "the accused," U.S. Const. amend. VI, the value of openness for the defendant has not always been strictly distinguished from its value to the public and to the adjudicatory proceeding itself. "The knowledge that every criminal trial is subject to contemporaneous review in the forum of public opinion is an effective restraint on possible abuse of judicial power." In re Oliver, 333 U.S. at 270. In Oliver, seemingly Sixth Amendment public access was seen as a guarantor of fairness, accuracy, and correct procedure—as much because these further democratic values and help adjudicators reach correct results as because they protect defendants.

The distinction in protected values was drawn clearly in Gannett Co., Inc. v. DePasquale, 443 U.S. 368 (1979), which held that the Sixth Amendment guaranteed only the right of the accused to have his trial held before the public and did not protect the right of the public to observe the proceeding. A year later, however, a plurality of the Court found this public right to be "implicit in the guarantees of the First Amendment." Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 580 (1980) (plurality opinion). It stated that "without the freedom to attend such trials,…important aspects of freedom of speech and of the press could be eviscerated." Id. (internal quotation marks and footnote omitted). "Free speech," the plurality opinion noted, "carries with it some freedom to listen." Id. at 576.

The First Amendment's guarantees of freedom of speech and the press entail that "'the government be prohibited from limiting the stock of information from which members of the public may draw.'" Id. (quoting First National Bank of Boston v. Bellotti, 435 U.S. 765, 783 (1978)). Public access to trials helps "give meaning to those explicit guarantees" of freedom of speech and the press—guarantees that protect the right "to speak and to publish concerning what takes place at a trial," and that "would lose much meaning if access to observe the trial could…be foreclosed arbitrarily." Id. at 575, 576- 77.

As this implies, the First Amendment right of access to criminal trials is not absolute. It does not foreclose the possibility of ever excluding the public. What offends the First Amendment is the attempt to do so without sufficient justification.

This right, incidentally, is also consistent with the rights of the accused. As Gannett "made clear…although the Sixth Amendment guarantees the accused a right to a public trial, it does not give her a right to a private trial." Id. at 580 (citing Gannett, 443 U.S. at 382). And the presumptive First Amendment right of access precludes a judge or a defendant, or both together, from arbitrarily closing a criminal proceeding.

Justice Brennan's concurrence in Richmond Newspapers offered "two helpful principles" to guide courts in determining whether a qualified right of access attaches to a given government proceeding. Id. at 589 (Brennan, J., concurring). First, courts should inquire into "experience" (history) and "consider[] whether the place and process have historically been open to the…public." Press-Enterprise v. Superior Court, 478 U.S. 1, 8 (1986) ("Press-Enterprise II") (internal quotation marks omitted). Second, courts should consider "logic" (functionality) and ask whether public access "plays a significant positive role in the functioning of the particular process in question." Id. Courts apply this experience and logic test to determine whether a qualified right of public access attaches to a given government forum. See, e.g., Globe Newspaper, 457 U.S. at 605; Hartford Courant Co. v. Pellegrino, 380 F.3d 83, 94-95 (2d Cir. 2004).

Reading Richmond Newspapers broadly, the Supreme Court has subsequently held that the First Amendment safeguards a qualified right of access not only to criminal trials but to related proceedings such as witness testimony, Globe Newspaper, 457 U.S. at 608-10; the transcripts of voir dire proceedings, Press-Enterprise v. Superior Court, 464 U.S. 501, 505-10 (1984) ("Press-Enterprise I"); and preliminary hearings, Press—Enterprise II, 478 U.S. at 13-15.

Our circuit has further held that the presumption of access applies to other aspects of criminal trials as well, including judicial records such as videotapes of defendants, In re Application of Nat'l Broad. Co. (United States v. Myers), 635 F.2d 945, 952 (2d Cir. 1980); pretrial suppression hearings, In re Application of the Herald Co. (United States v. Klepfer), 734 F.2d 93, 99 (2d Cir. 1984); plea agreements and plea hearings, United States v. Haller, 837 F.2d 84, 86-87 (2d Cir. 1988); information on the payment of court—appointed counsel, United States v. Suarez, 880 F.2d 626, 630-31 (2d Cir. 1989); bail hearings, United States v. Abuhamra, 389 F.3d 309, 323-24 (2d Cir. 2004); live voir dire proceedings, ABC, Inc. v. Stewart, 360 F.3d 90, 100 (2d Cir. 2004); and sentencing hearings, United States v. Alcantara, 396 F.3d 189, 191-92 (2d Cir. 2005). We have also held that the public's right implies that particular individuals may not be summarily excluded from court. Huminski v. Corsones, 396 F.3d 53, 83-84 (2d Cir. 2005).

Most relevant for the present case, we have concluded that the First Amendment guarantees a qualified right of access not only to criminal but also to civil trials and to their related proceedings and records. Westmoreland v. Columbia Broad. Sys., Inc., 752 F.2d 16, 22 (2d Cir. 1984); see also Hartford Courant, 380 F.3d at 93 (civil and criminal docket sheets). Significantly, all the other circuits that have considered the issue have come to the same conclusion. See, e.g., Rushford v. New Yorker Magazine, Inc., 846 F.2d 249, 253-54 (4th Cir. 1988); In re Continental Ill. Secs. Litig., 732 F.2d 1302, 1308 (7th Cir. 1984); Publicker Indus., Inc. v. Cohen, 733 F.2d 1059, 1070 (3d Cir. 1984); In re Iowa Freedom of Info. Council, 724 F.2d 658, 661 (8th Cir. 1983); Newman v. Graddick, 696 F.2d 796, 801 (11th Cir. 1983).

This recognition of the right to attend civil trials derives from the fact that the First Amendment, unlike the Sixth, does not distinguish between criminal and civil proceedings; nor does it distinguish among branches of government. Rather, it protects the public against the government's "arbitrary interference with access to important information." Richmond Newspapers, 448 U.S. at 583 (Stevens, J., concurring). As the district court below aptly noted, "once unmoored from the Sixth Amendment, there is no principle that limits the First Amendment right of access to any one particular type of government process." NYCLU, 675 F. Supp. 2d at 431 (internal quotation marks omitted).

However, neither our Court nor the Supreme Court has had occasion to consider under what conditions, if at all, a qualified right of access attaches to non-trial civil proceedings like the administrative adjudication at issue here. It is to that question that we now turn.

A. Applicability of the Experience and Logic Test

The NYCTA would have us forgo the Richmond Newspapers test: it argues that administrative proceedings are never subject to a presumption of public access and that Richmond Newspapers and its progeny apply only to courts. The NYCTA argues that, since administrative proceedings were rare, if not nonexistent, in the early Republic, they are totally different from either criminal or civil trials, which enjoyed centuries of open access, dating back before the Founding. The First Amendment, the NYCTA claims, could not possibly guarantee a right to access something that barely existed at the time of the Founding. Instead, the NYCTA suggests, the issue of public access to administrative proceedings is one for the legislature or the administrative agency itself to decide, free from judicial supervision. This argument fails for several reasons.

The Supreme Court has not specified how courts should determine whether the experience and logic test applies to administrative proceedings. But we have good reason to think that this determina

 
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