2nd Circ. Ruling Lays Out Administrative Right-Of-Access Blueprint

New York's default rule that seals and mandates confidentiality of attorney disciplinary matters is now in constitutional doubt.

On July 29, the U.S. Court of Appeals for the Second Circuit held in Civil Rights Corps v. LaSalle that New York's Judiciary Law Section 90(10) is unconstitutional as applied to a set of grievance complaints against former state prosecutors, reaffirming that the First Amendment right of access extends beyond the courtroom and into administrative proceedings.

All eyes are on whether the decision will invigorate efforts to use the First Amendment to widen public scrutiny of proceedings conducted outside the courtroom. One thing is clear: The Second Circuit has provided a road map for challenging other administrative regimes that operate behind closed doors.

Application of the First Amendment

It was not until 1980 that the First Amendment right of access came to life. In its landmark ruling in Richmond Newspapers Inc. v. Virginia, the U.S. Supreme Court — recognizing that interference with access to government information curtails the freedoms protected by the First Amendment — held that the public has a constitutional right to attend criminal trials.

The court emphasized the critical role openness plays in the proper functioning of government proceedings. In 1984, the court extended the access right to voir dire proceedings and, in 1986, to preliminary hearings in criminal proceedings in Press Enterprise Co. v. Superior Court.

Whether a First Amendment right of access applies to a particular government proceeding or record turns on what is now known as the experience and logic test. Under that test, courts must ask (1) whether the place and process have historically been open to the press and general public (the experience prong); and (2) whether public access plays a significant positive role in the functioning of the particular process in question (the logic prong).

If both prongs are satisfied, a qualified, presumptive First Amendment right of public access attaches. That presumption can be overcome only "based on findings that closure is essential to preserve higher values and is narrowly tailored to serve that interest," according to the Press Enterprise decision.

In other words, the government must show that its asserted interest in secrecy and confidentiality outweighs the First Amendment and that closure is reasonably necessary to protect those interests. This is a high bar that safeguards the First Amendment's presumption of openness.

Applying the experience and logic test, the courts of appeals have widely held that the First Amendment right of access extends to civil judicial proceedings, as well as civil complaints, docket sheets, summary judgment records and judicial decisions. But the waters are murkier when it comes to administrative and quasi-judicial proceedings. And the case law is sparse.

In 2002, the U.S. Court of Appeals for the Sixth Circuit and the U.S. Court of Appeals for the Third Circuit addressed whether a First Amendment right of access attaches to deportation proceedings and reached opposite conclusions. The Sixth Circuit said yes in Detroit Free Press v. Ashcroft. The Third Circuit said no in North Jersey Media Group v. Ashcroft.

Both courts agreed that the right of access is not limited to judicial proceedings, but their application of the experience and logic test diverged. The Sixth Circuit treated deportation hearings as quasi-judicial trials where public oversight is critical to assure fairness, while the Third Circuit treated them as executive branch proceedings where national security concerns and administrative deference can override public access.

The Second Circuit addressed administrative proceedings once before in 2011 in the context of hearings before the Transit Adjudication Bureau, a New York administrative agency that handles subway and bus violations, concluding that the New York City Transit Authority cannot unilaterally exclude the public from its hearings because "no principle ... limits the First Amendment right of access to any one particular type of government process."

The court, however, was careful to stress that its ruling did not necessarily extend to other administrative proceedings.

And that brings us to LaSalle, in which several law professors and a nonprofit civil rights organization filed grievance complaints against state prosecutors, but the Attorney Grievance Committee informed them that any resulting proceedings would be confidential under Judiciary Law Section 90(10).

On summary judgment in July 2024, the U.S. District Court for the Southern District of New York said such blanket sealing is unconstitutional, ruling that the First Amendment dictates a presumptive right of access to those grievance proceedings, including the underlying documents, and the committee's dispositions. The Second Circuit affirmed.

The Second Circuit found both experience and logic satisfied.

On experience, it found a robust history of open disciplinary proceedings and rejected the state's argument, among others, that shifting discipline into administrative grievance committees broke that tradition. In doing so, the court held that the relevant question is "the kind of work the proceeding actually does," i.e., adjudicative and adversarial, not its label.

On logic, the court found that public scrutiny protects confidence in the profession's self- regulation, with the risk of unfounded accusations tempered by a probable cause requirement. Notably, the court drew a line within the committee's own work, finding that the First Amendment reaches the committee's adjudicative function, meaning its formal disciplinary hearings and final dispositions of complaints, but not its preliminary investigative work.

Of course, the right of access is only a presumption. The governing body remains free to justify confidentiality through case-specific, on-the-record findings; yet, even then, any restriction must be narrowly tailored. But the state never tried to justify its concerns in LaSalle.

The bottom line is that the Second Circuit has spoken. The First Amendment protects access to administrative proceedings that are adjudicative in nature, regardless of whether they sit in the judicial or executive branch.

Why LaSalle Matters

The LaSalle decision is a significant constitutional development. It confirms that sweeping secrecy in adjudicative proceedings absent a compelling and narrowly tailored justification cannot stand. Because appellate case law on the public's right of access in the administrative setting is limited, LaSalle plays an outsize role in defining the scope of that right, particularly as more hearings and adjudications move outside the courtroom.

The court's focus on the substance of the work performed, rather than the label attached to it, is a useful template for challenging other closed administrative, licensing or disciplinary regimes. That function-over-label framework forecloses the government from immunizing a historically open process from constitutional scrutiny simply by rehousing it in an administrative body, renaming it a grievance (or similar) proceeding, or otherwise dressing it in nonjudicial clothing.

What matters is whether the proceeding does adjudicative work — resolving contested factual and legal questions between adverse parties and producing a disposition. That inquiry requires courts and litigants to look past labels to the actual character of the process: Is evidence taken? Is there a right to respond? Does a decision-maker render a determination with consequences for the parties?

The more a proceeding resembles adjudication in substance, the harder it will be for the government to defend categorical secrecy merely by pointing to its administrative pedigree.

For agencies that administer confidential regimes, the lesson is direct. Blanket sealing rules are vulnerable whenever the underlying function has a historical tradition of openness and the government offers little or no evidence justifying continued closure. The question going forward is how far that lesson reaches.

Looking Ahead

LaSalle's holding is formally limited to the grievance complaints at issue, but its function- over-label reasoning is not confined to attorney discipline.

Any government or agency process that adjudicates rights while shielded from public view is a candidate for a similar challenge. These include, among others, professional licensing boards (medical, legal, real estate and others) that conduct disciplinary or other hearings; parole and other prison-related proceedings; administrative actions before securities, environmental or labor agencies; and judicial conduct proceedings.

Clients and counsel involved with regimes like the Equal Employment Opportunity Commission and the Financial Industry Regulatory Authority, as well as universities hearing Title IX disciplinary matters — where adjudicative hearings, not merely the preliminary investigation, remain categorically sealed — should pay particular attention.

While it remains to be seen whether those proceedings can pass the experience and logic test, practitioners should treat confidentiality as newly vulnerable and plan for the possibility of public exposure that they may not have anticipated.

Whenever the governing confidentiality practice is the categorical, no-findings-made type that LaSalle calls into question, information previously protected from public view, such as an EEOC or Title IX discrimination charge, is at risk of exposure well before any final disposition.

Practitioners should factor that risk into settlement timing, public relations strategy and disclosure requirements; revisit confidentiality assumptions in settlement agreements; and consider proactively raising confidentiality expectations with the agency or institution.

For corporate and transactional practitioners, the same distinction the Second Circuit drew between investigative and adjudicative work is useful in structuring internal investigations and self-reporting to regulators: Purely investigative work is unaffected by LaSalle, but once a matter moves into a formal adjudicative posture — a hearing, a charge, a disposition — confidentiality can no longer be assumed, favoring negotiated resolutions or consent postures where confidentiality is a priority.

For public company clients, counsel should prepare for the possibility that a pending regulatory or licensing matter becomes public earlier than previously assumed.

For clients, media and advocacy groups seeking access to proceedings they believe are wrongly shielded, the path is set. Counsel should build the experience prong with historical and comparative evidence, such as legislative history, agency practice over time, and treatment of analogous adjudicative proceedings. The logic prong should be built with evidence of how public scrutiny would improve the proceeding's integrity or accountability.

Litigants pursuing access should expect the government and interested third parties to resist disclosure by emphasizing procedural or institutional differences from courtroom litigation and by invoking reputational harm. LaSalle instructs that such differences and generalized concerns are not dispositive on their own. Nor are concerns protecting the integrity of ongoing administrative work. The governing agency must still make an evidentiary showing that closure serves a compelling interest and is narrowly tailored.

Because the government bears the burden of justifying closure once the presumption of access attaches, plaintiffs seeking access should use discovery or the administrative record to highlight the absence of case-specific findings, as was fatal to the state's position in LaSalle.

Agencies, licensing boards and institutions that cannot meet that evidentiary burden should expect their confidentiality rules to face the same fate as New York's, and should act now rather than wait to be sued: Audit existing sealing rules for categorical closures with no case-specific justification; separate investigative or preliminary functions — which the Second Circuit left outside the First Amendment's reach — from adjudicative functions such as formal hearings and final dispositions; and consider narrower alternatives to blanket closure, such as redaction or anonymization, that may satisfy any residual confidentiality interest without inviting a challenge.

And although LaSalle binds only courts within the Second Circuit, its function-over-label reasoning is readily exportable. Litigants elsewhere should cite it as persuasive authority when confronting closed administrative regimes, particularly in circuits, like the Third, that have taken a narrower view of access rights outside the courtroom.

A sharply reasoned application or rejection of its framework elsewhere could sharpen the kind of circuit conflict that draws Supreme Court review.

Reprinted with permission from Law360.