Hamilton famously observed in Federalist 78 that courts
"have neither FORCE nor WILL, but merely judgment."
Notwithstanding this general principle, the Georgia
Constitution does confer on us some carefully defined room
for the exercise of will: it vests in this Court the power to
approve rules for each class of court in this State. That is
a policymaking power. We can approve or disapprove a proposed
rule based on whether we think it's a good idea. But once
we've approved a rule, our policymaking role is at an end
and Hamilton's observation applies with full force. And
so, when a case (like this one) calls us to decide what a
rule means, our role is no different than when we interpret
the Georgia Constitution or a state statute; we simply
determine what the text of the rule meant at the time it was
adopted, and apply it accordingly, without considering
whether we like the policy implications that meaning may
than a decade ago, Joseph Watkins was convicted of felony
murder and other crimes following a jury trial, and we
affirmed Watkins's convictions on appeal. Watkins v.
State, 276 Ga. 578 (581 S.E.2d 23) (2003). In late 2015,
Undisclosed LLC, a producer of a legal documentary podcast,
began investigating Watkins's case and, as part of that
investigation, sought access to audio recordings of several
hearings and the trial. Undisclosed filed a motion in
Watkins's case under Uniform Superior Court Rule 21
("Rule 21") to obtain copies of the audio
recordings, arguing that our decision in Green v.
Drinnon, 262 Ga. 264 (417 S.E.2d 11) (1992) held that a
court reporter's audio recordings are "court
records" under Rule 21 and the rule provided the right
to copy court records. The State did not oppose the motion;
the trial court denied it to the extent Undisclosed wanted to
make copies of the audio recordings, holding Rule 21 did not
confer the right to copy. We granted Undisclosed's
application for discretionary appeal. Interpreting Rule 21 in
the light of the common law right that it preserved, we
conclude that the trial court erred: Rule 21 does include a
right to copy court records. We nevertheless affirm the trial
court's order because Green's limited
holding does not apply here, and a review of the common law
shows that "court records" within the historic
right include only those materials filed with the court,
which the recording in question was not.
21 provides the process for non-parties to seek access to
provides that "[a]ll court records are public and are to
be available for public inspection unless public access is
limited by law or by the procedure set forth [in the
rule]." The State argues that a Rule 21 motion is not
the proper vehicle for a non-party to access court records,
and that Undisclosed should have instead sought mandamus.
Undisclosed argues that its Rule 21 motion was the proper
vehicle. Undisclosed is right. See Merchant, Ga. at.
21's right of public inspection includes the right to
argues that a Rule 21 analysis generally requires a threshold
determination of whether the requested material is a court
record, a determination Undisclosed contends has been
resolved in its favor by our opinion in Green.
Undisclosed argues that we need only address whether Rule 21
includes the right to copy, arguing that Rule 21's right
of access to court records includes the right to copy them,
and so the court erred in concluding that Undisclosed did not
have the right to make copies of the court reporter's
audio recordings. We first review the trial court's
ruling that Rule 21 does not include a right to copy court
records, and then consider the import of Green's
statement that a court reporter's audio recordings are
Because Rule 21 is derived from the common law, we
construe its text in the light of the common law.
Rule 21's right of access to court records includes the
right to copy is a matter of first impression. Rule 21
expressly states that court records are available for
"public inspection, " but does not specifically
address the ability to copy records. The State asks us to
construe the term "inspection" according to its
plain and ordinary meaning, as we ordinarily do when
construing statutes and court rules. See, e.g., Couch v.
Red Roof Inns, Inc., 291 Ga. 359, 364 (1) (729 S.E.2d
378) (2012) ("[T]he basic rule used by courts across the
country is to apply [a] word's ordinary, everyday
meaning."); Beneke v. Parker, 285 Ga. 733, 734
(684 S.E.2d 243) (2009) ("The fundamental rules of
statutory construction require us to construe a statute
according to its terms [and] to give words their plain and
ordinary meaning[.]" (citation and punctuation
omitted)); Cuzzort v. State, 271 Ga. 464, 464 (519
S.E.2d 687) (1999) (evaluating plain meaning of a Uniform
Superior Court Rule). The State contends that such
consideration will show that the definition of
"inspection" - "critical examination" or
"official examination or review" - does not include
"copy, " "duplicate, " or
"reproduce." See Webster's New World Dictionary
729 (2d College ed. 1980).
State's argument ignores that in interpreting the plain
meaning of Rule 21, we do not look at the text in isolation.
See May v. State, 295 Ga. 388, 391 (761 S.E.2d 38)
(2014). Rather, to determine its meaning, we also consider
its context. Smith v. Ellis, 291 Ga. 566, 573 (3)
(a) (731 S.E.2d 731) (2012) ("In construing statutes,
however, we do not read words in isolation, but rather in
context."). This context includes the immediate context
of other provisions of Rule 21 and the other rules. It also
includes the broader legal context in which Rule 21 was
drafted, including other law that forms the legal background
of Rule 21. May, 295 Ga. at 391-392 ("[C]ontext
is a primary determinant of meaning. For context, we may look
to other provisions of the same statute, the structure and
history of the whole statute, and the other law -
constitutional, statutory, and common law alike - that forms
the legal background of the statutory provision in
question." (citations and punctuation omitted)).
the common law is not only part of the relevant legal
background regarding the right of access, it is the mold in
which Rule 21 was cast. "It is well-settled that the
right of access under Rule 21 is coextensive with the common
law right of access to court proceedings."
Merchant, __Ga. at__(1) (b) (citing cases). Through
Rule 21, the common law remains in effect, and although the
common law may be amended, such changes must be clear. See
Fortner v. Town of Register, 278 Ga. 625, 626 (1)
(604 S.E.2d 175) (2004) ("The common-law rules are still
of force and effect in this State, except where they have
been changed by express statutory enactment or by necessary
implication." (citation and punctuation omitted)); see
also Scalia & Garner, Reading Law: The Interpretation of
Legal Texts 318 (2012) ("The better view is that
statutes will not be interpreted as changing the common law
unless they effect the change with clarity.").
is no indication that Rule 21 changed the common law in any
way at issue here. Indeed, the preamble to the Uniform
Superior Court Rules provides that:
It is not the intention, nor shall it be the effect, of these
rules to conflict with the Constitution or substantive law,
either per se or in individual actions and these rules shall
be so construed and in case of conflict shall yield to
256 Ga. at 865. The common law right of access was the
substantive law when Rule 21 was adopted. Consequently, we
construe Rule 21 consistent with the common law. See
May, 295 Ga. at 397 ("Where there is limitation
by a statute which is capable of more than one construction,
the statute must be given that construction which is
consistent with the common law." (citation and
punctuation omitted)). With that in mind, we turn to a review
of the common law.
The common law right of access includes the right to
inspect and copy.
right of access to court records that we consider here is
based on the common law and predates the Constitution. See
Belo Broad. Corp. v. Clark, 654 F.2d 423, 429 (5th
Cir. 1981). Under the common law, the right of access to
public records was generally restricted to those
persons with a sufficient interest in them, such as those
needing the records to prosecute or defend a legal action.
See Colescott v. King, 57 NE 535, 537 (Ind. 1900);
Ferry v. Williams, 41 NJL 332, 334 (1879); 20 Am.
& Eng. Enc. of Law 521-523 (1892); see also Deal v.
Coleman, 294 Ga. 170, 183 (2) (b) (751 S.E.2d 337)
("[M]ost founding-era English cases provided that only
those persons who had a personal interest in non-judicial
records were permitted to access them.") (citing
McBurney v. Young, 569 U.S. 221, 233 (133 S.Ct.
1709, 185 L.Ed.2d 758) (2013)). The right of access to
court records, however, did not require a special
interest. Instead, the common law provided that the
right of access to court records was a right belonging to
It has been admitted, from a very early period, that the
inspection and exemplification of the records of the
King's courts is the common right of the subject. This
right was extended by an ancient statute to cases where the
subject was concerned against the King. The exercise of the
right does not appear to have been restrained until the reign
of Charles II, when, in consequence of the frequency of
actions for malicious prosecution, which could not be
supported without a copy of the record, the judges made an
order for the regulation of the sessions of the Old Bailey,
prohibiting the granting of any copy of an indictment for
felony without special order, upon motion in open court, at
the general jail delivery. This order, it is to be observed,
relates only to indictments for felony. In cases of
misdemeanor, the right to a copy has never been questioned.
But in the United States, no regulation of this kind is known
to have been expressly made; and any limitation of the right
to copy of a judicial record or paper, when applied for by
any person having an interest in it, would probably be deemed
repugnant to the genius of American institutions.
Ex Parte Drawbaugh, 2 App. D.C. 404, 406-407 (D.C.
Cir. 1894) (quoting Greenleaf; emphasis and citation
addition to establishing that every citizen has a right to
inspect judicial records, Ex Parte Drawbaugh also
demonstrates the parallel right to copy those
records. Ex Parte Drawbaugh is not alone
in observing that the common law right of access includes the
right to copy court records. See Nixon v. Warner Comm.,
Inc., 435 U.S. 589, 597 (98 S.Ct. 1306, 55 L.Ed.2d 570)
(1978) ("It is clear that the courts of this country
recognize a general right to inspect and copy public records
and documents, including judicial records and
documents." (footnotes omitted)); Chicago Tribune
Co. v. Bridgestone/Firestone, Inc., 263 F.3d 1304, 1311
(11th Cir. 2001) ("Beyond establishing a general
presumption that criminal and civil actions should be
conducted publicly, the common-law right of access includes
the right to inspect and copy public records and
documents."); United States v. Hickey, 767 F.2d
705, 708 (10th Cir. 1985) ("We begin by acknowledging
the axiom that a common law right exists to inspect and copy
judicial records."); United States v. Criden,
648 F.2d 814, 819 (3d Cir. 1981) ("The right to inspect
and copy, sometimes termed the right to access, antedates the
Constitution."); Brewer v. Watson, 71 Ala. 299,
304 (1882) (a custodian of judicial records is "bound to
furnish copies" of judicial records upon payment of any
fees, whereas an individual requesting access to other public
records must show an interest in the document and that the
request is for a legitimate purpose); cf. Clay v.
Ballard, 13 SE 262, 263 (Va. 1891) ("The
authorities on the subject are very numerous, and they
uniformly hold that such a right [to inspect] includes the
right, when necessary to the attainment of justice, to take
copies."). The State has not identified - nor have we
found - any contrary authority.
right of access to court records serves vital purposes:
As James Madison warned, "A popular Government without
popular information, or the means of acquiring it, is but a
Prologue to a Farce or a Tragedy: or perhaps both. . . . A
people who mean to be their own Governors, must arm
themselves with the power which knowledge gives." . . .
[T]he right of inspection serves to produce an informed and
enlightened public opinion. Like the public trial guarantee
of the Sixth Amendment, the right serves to safeguard against
any attempt to employ our courts as instruments of
persecution, to promote the search for truth, and to assure
confidence in judicial remedies.
United States v. Mitchell, 551 F.2d 1252, 1258 (D.C.
Cir. 1976) (quoting Letter from James Madison to W. T. Barry,
August 4, 1822, in 9 The Writings of James Madison 103 (Hunt
ed. 1910)), reversed on other grounds by Nixon, 435
U.S. 589. A right to read but not copy court records would be
of limited use to this purpose. Indeed, the right of access
is not complete unless it includes the right to copy. See
Whorton v. Gaspard, 393 S.W.2d 773, 774 (Ark. 1965)
("The right to inspect . . . carries with it the right
to make copies, without which the right to inspect would be
practically valueless."); Fuller v.
O'Donnell, 17 So.2d 607, 607 (Fla. 1994)
("[T]he right to inspect would in many cases be
valueless without the right to make copies."); 37 Cent.
L. Journal 399 (1893) ("[T]he right of examination must
necessarily carry with it the right to make whatever copies
or other memoranda are necessary to effectuate the purpose
for which the examination is sought, or else the grant of the
mere right of inspection is nugatory.").
line of authority uniformly accepting that the common law
right of access to judicial records encompasses a right to
copy provides important context for the scope of the right
Rule 21 preserved. Consistent with the common law, we
conclude that Rule 21's right to "inspect"