concurring in part dissenting in part:
T1 The Supreme Court of Oklahoma has certified to us the question, "whether defendant/petitioner's quest for withholding from public knowledge the entire course of this litigation should be upheld." This question reaches our Court in the context of payment of court-appointed defense counsel, and this Court directed the parties to respond on the issue of whether records regarding the remuneration of court-appointed counsel, and the disclosure of counsel's expenditures, should be sealed. Although the opinion concludes that nothing requires "wholesale closure" of these proceedings, that is neither the question we asked the parties to brief, nor the question the opinion actually analyzes.1 I agree with the majority's conclusion that nothing presented to this Court today requires wholesale closure of the proceedings. However, I disagree with the majority conclusion that none of the records in this case should be sealed.
T2 The question of sealing records (or closing proceedings) involves two distinct areas of law. The first and most important is constitutional. The First Amendment to the federal constitution grants the public a right of access to public records, including trial proceedings. In criminal trials this First Amendment right to access is qualified and must be balanced with the Fifth and Sixth Amendment rights of the accused to a fair trial2 A court must find "that closure is essential to preserve higher values -and is narrowly tailored to serve that interest."3 The court must find (1) a substantial probability that the defendant's right to a fair trial will be prejudiced by publicity that closure would prevent and (2) reasonable alternatives to closure cannot adequately protect the defendant's fair trial rights.4 Nichol's co-defendant, McVeigh, successfully asked the federal district court to seal the records concerning attorney fees related to his trial. In determining the McVeigh records should be sealed, the federal district court looked at five factors: '
Does the matter involve activity within the tradition of free public access to information concerning eriminal prosecutions? Will public access play a significant positive role in the activity and in the functioning of the process? Is there a substantial probability that some recognized interest of higher value than public access to information will be prejudiced or affected adversely by the disclosure? Does the need for protection of that interest override the qualified First Amendment right of access? Is the closure by the court essential to protect that interest, considering all reasonable alternatives? 5
3 The majority apparently recognizes the principle that First Amendment rights and the right to a fair trial must be balanced, as it cites these cases. However, the majority does not analyze Nichols's claims under constitutional law principles., Rather, the majority ultimately relies on the second area of law involved, the right of access granted by Oklahoma statute. I consequently turn to that statute to begin my analysis. I note in doing so that no application of a state statutory *235right will control where a federal constitutional right is threatened. The majority's focus on the state statute is thus misplaced and, should a conviction result from this prosecution, leaves unresolved a major issue for the United States Supreme Court and/or the lower federal courts on collateral review.
T4 Oklahoma's Open Records Act 6 (Act) clearly applies on its face to the courts. That Act exempts from inspection "records protected by a state evidentiary privilege such as the attorney-client privilege, [and] the work product immunity from discovery." 7 The Act provides that records may be sealed by court order,8 and that otherwise nonexempt records may have "reasonably seg-regable" parts deleted before they are made public.9 The majority suggests that the latter provision is sufficient to excise any personal comments contained in the documents. I agree. However, I believe Nichols has shown he qualifies for a specific exemption under the Act.
15 The majority characterizes this as a contract dispute and states none of the information is work product or privileged. In so finding, the majority does not address Nichols's claim that a detailed accounting of payments would adversely affect counsel's ability to investigate and conduct the case. Court appointed counsel is being paid through the court fund, administered by the Presiding Judge of the District Court of Oklahoma County. An unusual amount of money has already been budgeted for attorney fees and counsel has asked for more. In order to determine whether counsel is properly spending this public money, the district court has the right and duty to demand a detailed accounting from court-appointed counsel. The court will need to question the attorneys regarding specific disbursements and dispute items when the court feels this is necessary.10 Any attorney accustomed to billing hours must account in detail for the time and money spent by explaining exactly how the time or money was used. In this way the client knows what decisions the attorney made in conducting his case, and what means he used to carry them out. The district court should expect no less. Of course, this detailed accounting by its nature will require court-appointed counsel to divulge strategic and investigatory information. In McVeigh, even the news organizations moving to unseal fee records conceded "that disclosing the services performed and the reason for them would inappropriately reveal the defendants' investigations and strategies." 11 I believe this information is clearly covered by the attorney-client privilege, and exempt under the Open Records Act. I would seal the specific details of how court-appointed counsel uses public money in conducting the case. These records should remain under seal until the case is concluded.
I 6 Turning to the constitutional analysis, I again cannot agree with the majority's con-clusory statement that the Press-Enterprise and McVeigh criteria do not require at least some records be sealed. Actually applying these factors, I conclude that, just as detailed billing information is exempt under the Open Records Act, it affects Nichols's rights to a fair trial This fee material-this contract dispute-does involve material traditionally open to the public. However, public access will not play any significant positive role here. I believe there is a substantial probability that Nichols's right to a fair trial, which is a recognized interest of higher value than public access to information, will be prejudiced by the disclosure of details of remuneration. The right to a fair trial overrides the qualified First Amendment right of public access. Considering all reasonable alternatives, sealing records of all but the amounts disbursed and to whom is essential to protect Nichols's right to a fair trial.
*23617 Nichols relies on the McVeigh decision to urge that all records regarding remuneration of appointed counsel should be sealed entirely. In McVeigh, the fee records were sealed from the beginning of the case. Nichols did not make that request. He concedes that, since October 1999, the amounts budgeted and paid to court-appointed counsel have been public records on file with the Oklahoma County District Court Clerk. I agree with the majority that Nichols cannot, two years later, request that the disbursement records be sealed. Had Nichols asked the district court to seal fee records when the case began my conclusion might be different. I believe that the amounts paid, and to whom, are matters of public record. Nichols has not shown, this late in the proceedings, that they should be sealed.
T8 I agree with the majority that the criminal discovery code does not apply here. I also agree that Nichols speculates when he claims that public disclosure of counsel's fee arrangements would add to public hostility. If Nichols has evidence public knowledge of his attorney's fees has created such a hostile atmosphere that he cannot get a fair trial, he may bring that to the district court's attention. In any event there are trial and appellate remedies available for this issue.12 This being the case, I see no need to discuss voir dire or venue issues, which are equally speculative.
Finally, I dissent to the decision to publish this opinion.13
. I believe that, by its order directing the parties to respond to the particular issue of remuneration, this Court reformulated the certified question submitted by the Oklahoma Supreme Court.
. Press-Enterprise Co. v. Superior Court of California, 478 U.S. 1, 9, 106 S.Ct. 2735, 2740-41, 92 L.Ed.2d 1 (1986).
. Id.
. - Id. at 14, 106 S.Ct. at 2743.
. United States v. McVeigh, 918 F.Supp. 1452, 1464 (W.D.Okl.1996).
. 51 O.S.Supp.2000, § 24A.1 et seq.
. 51 O.S.Supp.2000, § 244.5(1)(a).
. 51 O.S.SSupp.2000, § 244.25.
. 51 O.S.Supp.2000, § 24A.5(2).
. These fee proceedings should of course be ex parte. These proceedings are not part of the criminal prosecution, but, rather, an accounting to the district court for expenditure of public funds. The prosecutor has no interest in knowing the particulars of defense counsel's spending.
. McVeigh, 918 F.Supp. at 1465.
. Quite obviously, this issue is collaterally related because at some point Nichols will raise the issue of whether or not he can get a fair trial. Traditional analysis of that issue involves publicity and public hostility considerations. In my judgment, court-sanctioned release of detailed billing records would compound those problems.
. As I have earlier noted, before this case is over this Court is likely to rule upon issues touching every area of the criminal law in Oklahoma. Nichols v. District Court, No. PR-2001-446 (Okl.Cr. July 11, 2001) (not for publication) (Chapel, J, dissenting). This Court's published opinions are the law of Oklahoma. Thus it is likely that a very substantial part of our criminal jurisprudence will be based upon a single hard case.