dissenting.
The only issue raised in the petition before the court is whether the advisory opinion requested by former Justice Almeida from the Rhode Island Advisory Committee on the Code of Judicial Conduct (committee) and all supporting documents relating to it should be released. The majority seizes on this narrow, specific request as an opportunity to order that all advisory opinions issued to date be published with names deleted and that all future requests, opinions, and supporting documents be published in toto. Because I believe the majority is addressing issues not properly before the court and because today’s holding will have a significant chilling effect on any judge consulting the advisory committee for advice, I dissent.
All past inquiries and advisory opinions, including the purported request and opinion relating to Justice Almeida, should remain confidential. The inquiring justices’ expectations of confidentiality must not be violated by this court without the inquiring justices’ permission. As to the status of all future advisory requests and opinions, that discussion should be referred to the committee with directions that it formulate appropriate rules for submission to this court for approval. Those new rules could then be debated, adopted, and published following consultation with all interested parties.
We recently took such action, in conference, regarding ambiguities that have arisen about certain provisions of the Rules of Professional Conduct for Attorneys. Such a reasoned and well-considered approach would be no less appropriate in this situation.
The committee was first established in 1974 by a rule of this court. It was intended to assist judges in the interpretation of and compliance with the Canons of Judicial Ethics, particularly in areas where the canons themselves or their application to the sitúa*1070tion facing the judge gave rise to ambiguity. The committee’s interpretation of the canons, and the policy of confidentiality it adopted, is entitled to substantial deference and great weight since the adoption of a policy of confidentiality was not clearly erroneous nor was it contrary to law. Citizens Savings Bank v. Bell, 605 F.Supp. 1033, 1041 (D.R.I.1985). Furthermore, this court was fully aware of that policy of confidentiality. It has enjoyed the approval of this court until today. Complete confidentiality in the committee’s proceedings has been so generally known and recognized that a fair presumption arises that the parties, in entering into their engagements, did so with a silent reference to the custom, and tacitly agreed that their rights and responsibilities would be determined by it. See Fletcher & Brothers v. Seekell, 1 R.I. 267 (1849). Reasonable customs observed over time can and should acquire the force of and become part of the law. See Trott v. Wood, 24 F.Cas. 218 (C.C.D.R.I. 1813) (No. 14,190).
I would also remind the court of other action taken by us quite recently in issuing an order on March 8, 1993, adopting Rule 4 of Article VI of the Supreme Court Rules of Judicial Conduct. Those rules create and define the purpose and power of the Judicial Performance and Evaluation Committee. Recognizing that “[t]he courts, the public, and the bar have a vital interest in a responsive and respected judiciary,” the drafters of the rule nevertheless limited disclosure of the judicial evaluations to the judge evaluated and the presiding judge of the court on which the judge serves. Supreme Court Rules Art. VI, Preamble to Rule 4; Rule 4.3. Surely the public’s interest in the actual performance of a judge is substantially greater than its interest in a judge’s request for guidance, often necessitated by circumstances existing in the judge’s personal life. More than likely many requests would involve fairly bland or innocuous situations. But it is also highly likely that on occasion a judge would be concerned about a very personal situation that might raise questions as to his or her impartiality or the appearance of impropriety. It could involve misconduct of a family member or substance abuse or mental illness of someone close to the judge. Why should a good-faith inquiry for guidance in such a situation be made public?
The majority concedes that former Justice Almeida, as well as every other justice who sought an opinion from the committee, did so with a reasonable expectation of confidentiality. Nevertheless, they choose to ignore the privacy rights of inquiring judges and sacrifice the future benefits of consultation with this committee. This opinion is an illogical and a counterproductive response to the media-driven hysteria for public accountability. I am in full support of public accountability for all members of the judiciary in their professional duties. I deplore a decision that might lead to disclosure of information about a judge’s personal affairs to which the public has no meaningful interest or about innocent third parties or family members whose privacy unquestionably should be respected.
I would comment at this point on material referred to in Justice Lederberg’s concurring opinion. As far as can be determined, the partial release of one or two sentence abstracts of some of the advisory opinions was done by a staff person apparently without authorization from the committee or this court. That practice ended several years ago. This limited release of redacted information can hardly justify the drastic action sanctioned by the court today.
In a recent seminar involving representatives of the media and the judges of all our courts, the media was described by some of its members as a dollar-driven industry. Almost daily the media try and convict people of all manner of wrongdoing, long before these people have had their day in court, where some are ultimately exonerated. The majority’s pious reference to the Canons of Ethics for Journalists gives little assurance in these times where tabloid journalism is becoming the rule rather than the exception. In the seminal decision on public access to judicial records, the United States Supreme Court recognized the courts’ power to prevent their files from serving as “reservoirs of libelous statements for press consumption.” Nixon v. Warner Communications, Inc., 435 U.S. 589, 598, 98 S.Ct. 1306, 1312, 55 L.Ed.2d 570, 580 (1978). That very language may *1071have been the reason the drafters of the Access to Public Records Act (APRA) included in its first subsection entitled “Purpose,” the statement: “[i]t is also the intent of this chapter to protect from disclosure information about particular individuals maintained in the files of public bodies when disclosure would constitute an unwarranted invasion of personal privacy.” G.L.1956 (1990 Reenactment) § 38-2-1.
Apart from my disagreement with the majority’s decision to permit media access to committee opinions, I am most distressed about the additional decision to release supporting documents underlying the advisory opinions. Despite the obvious distinction between the actual advisory opinions and such supporting documents as the judge’s request for advice or committee internal memoranda, the majority offers absolutely no further reasoning or balancing to justify the latter’s release. In two cases involving the common-law right of access to judicial i’eeords, the United States Supreme Court has placed such trial-court documents as tape recordings, depositions and interrogatories beyond public reach. See Seattle Times Co. v. Rhinehart, 467 U.S. 20, 33, 104 S.Ct. 2199, 2207, 81 L.Ed.2d 17, 27 (1984) (pretrial depositions and interrogatories not public components of a civil trial); Nixon, 435 U.S. at 608, 98 S.Ct. at 1317, 55 L.Ed.2d at 586 (common-law right of access does not authorize release of tape recordings introduced at criminal trial). If the public may be denied access to these components of an actual trial, there cannot be a public right of access to supporting documents for advisory opinions issued by a five-member committee after informal deliberations. Even this court’s rules that permit publication of Ethics Advisory Panel opinions issued to attorneys maintain confidentiality of the panel’s proceedings and the attorney’s identification. Sup.Ct.Rules, Ethics Advisory Panel R. 6. The public has no interest in the balance justifying the release of the documents and data supporting the committee opinions.
One final point that I would address is a threshold issue. Are these opinions of the committee judicial records within the common-law right of access? The court must first determine whether the records sought are judicial records prior to applying the common-law right of access. The court offers no rationale to support why advisory opinions should be treated as judicial records rather than as administrative materials.
Judicial records are those produced out of a judicial proceeding. Black’s Law Dictionary, 849 (6th ed. 1990). A judicial proceeding is defined as one in which judicial action is involved or used to “obtain such remedy as the law allows.” Id.; see also Roberts v. City of Cranston Zoning Board of Review, 448 A.2d 779, 781 (R.I.1982). A request for guidance from an advisory committee is not a judicial proceeding.
The Providence Journal Company (the Journal) argued that the committee performs administrative, not judicial, functions. That being the ease, the Journal’s access to administrative materials could not be based on the common-law right of access to judicial records. Even under APRA, the Journal might not be able to gain access to committee opinions. See G.L.1956 (1990 Reenactment) §§ 38-2-2(d)(l) and -2(d)(18)-(20) (providing exceptions to required disclosure that may encompass advisory opinions); see also Providence Journal Co. v. Kane, 577 A.2d 661, 665 (R.I.1990) (holding state employee personnel records exempt from disclosures under APRA); Hydron Laboratories, Inc. v. Department of Attorney General, 492 A.2d 135, 139 (R.I.1985) (holding court documents in pending litigation exempt from APRA). The requests for an advisory opinion and the opinion itself are not judicial records; therefore, they are not subject to the common-law right of access. They are, in my opinion, administrative records more akin to personnel records and should not be available under APRA.