Because of a presumed constitutional right of access to court proceedings, journalists usually have found access at courthouses a bit easier to come by than at city hall or the statehouse. That may all be changing.
Recent trends toward secrecy show it’s time to do an access checkup on the nation’s courthouses. Perhaps audits, patterned after those to gauge compliance with state records laws, may be in order. At the very least, it is time to remind prosecutors, court administrators and judges about their responsibilities to keep courts open.
Call it courthouse creep. Driven by concerns about privacy, revisions of records policies to accommodate online access, parties using courts to find “private justice” and even terrorism, the judiciary seems to be finding a growing number of reasons to close information – usually without challenge or public notice.
THE CASE IS CLOSED
For example, St. Louis Post-Dispatch reporter Karen Branch-Brioso quoted an aide to Chief Judge Thomas F. Hogan of the U.S. District Court for the District of Columbia saying that an estimated 30 to 40 percent of criminal cases are sealed. Many of those cases are sealed at the request of prosecutors in drug cases. After the article appeared in late October, the Reporters Committee for Freedom of the Press sent a letter to Attorney General John Ashcroft reminding him about a Justice Department policy that says the “government has a general overriding affirmative duty” to oppose the closure of judicial proceedings. Closure will be justified in “very few cases,” the policy says.
Gregg P. Leslie, the Reporters Committee’s legal defense director, said that despite the relative obscurity of the policy, he was surprised to hear about such a large number of secret cases in Hogan’s court. It raises the question about whether government attorneys across the country follow the process to notice the public before asking judges to close case files and proceedings. News organizations and SPJ’s Project Sunshine should document secrecy at federal district courts and call for changes, if necessary.
KEEPING IT OFFLINE
At the state level, secrecy may be no better and could get worse. In particular, restrictions considered because of privacy and online distribution concerns also threaten access. Many states have begun discussions about modifying court records policies so they can place records online. Some want to change access rules because they believe placing court records online threatens privacy. Such privacy concerns have prompted proposals for a two-tiered system of access – less access online and greater access in person.
“Public access to court records should be platform-neutral. Information that is publicly available at the courthouse should be publicly available online,” Salt Lake City media law attorney Jeff Hunt told a Utah committee studying online access to court records. “Even assuming that there are privacy interests in information that is already part of a public record, it is an unwise and technologically doomed policy that relies on the inconvenience and difficulty of going to the courthouse to ‘protect’ those privacy interests.”
These state discussions come in the wake of a federal court initiative to allow greater online access to court records. Some sites experimented with making all criminal and civil court filings available online. As part of the project, parties filing cases are required to remove some identifying information including part of Social Security numbers, bank account numbers and home addresses.
“The federal system wisely places the burden on attorneys and litigants to protect their interests by considering whether to include confidential information in their filings and through use of motions to seal and protective orders,” Hunt said. “Pilot federal districts have experienced virtually no reported privacy or safety problems.”
SPJ’s Project Sunshine chairs should make sure they are involved in the discussion about state online access policies and monitor access under new online policies in federal courts.
Along with online access, FOI advocates should be on the lookout for the increasing number of private parties, including corporations, trying to shield their litigation in public courts. Such a move toward “private justice” may hurt the public in the end. For example, the (Newark, N.J.) Star-Ledger reported an increasing use of confidentiality to keep the public in the dark about serial child molesters, incompetent physicians and defective products ranging from tires to heart valves.
The newspaper reported on a New Jersey case involving the families of two Air Force officers killed when a van flipped over. The families claimed a defect in the van’s Goodyear tires, but the information disclosed about the tire failures remains sealed after an appeals court overturned a trial judge’s decision to release the information.
SPJ ought to become involved in such cases and advocate tougher restrictions on secrecy. Specifically, SPJ should push for laws and court policies that keep settlements open. Already, Texas has a court rule that allows access to information that can harm “the general public health or safety.”
Florida’s Sunshine in Litigation Act keeps state courts from entering a confidentiality order that has the “effect of concealing a public hazard or any information concerning a public hazard.” In May, the South Carolina Supreme Court adopted a rule that requires judges to balance the public interest in health and safety against the harm from disclosure before sealing any settlement. Judges also must consider alternatives to sealing. Last November, the U.S. District Court in South Carolina became the first and only federal court to adopt a local rule banning sealed settlement agreements.
NOT BURIED FOREVER
There are a lot of reasons that openness makes sense. When cases settle on secret terms, “it results in a great deal of information about matters that are in the public interest being buried, (but) they usually aren’t buried forever,” Sandra Baron, executive director of the Media Law Resource Center in New York, told the Star-Ledger. “They’re buried long enough for a lot of other people to get hurt. It means the same or similar problems become recurring problems that burden the system many times.”
A concerted drive for policies that keep open court proceedings and records across the nation is a worthy goal for SPJ. In the absence of such policies, journalists should demand clear rules that require notice and an opportunity for public and media response before judges close dockets, cases and hearings. And, above all, the public ought to be told about judicial secrecy through news stories and encouraged in editorials to participate in a process for change.
Joel Campbell is co-chair of SPJ’s Freedom of Information Committee. A former newspaper reporter and editor, he is an assistant journalism professor at Brigham Young University.