Super-sealed cases

Reporters covering court cases are often stymied by the fact that some cases are conducted entirely in secret, never appearing on a public docket.

Reporters check court dockets to find out what cases have been filed in courts across the country. The docket reveals the case number assigned by the court, the parties' names, and a brief entry of each document filed or action taken in the case. Normally, all of this information is public record and can be obtained either from the court clerk's office, the court's public inquiry computer terminals, the court's Web site, or through PACER, an electronic public access service where federal court docket information can be accessed for a fee. The information on the docket is evidence that a particular case exists and allows someone to track the case through the judicial system.

But not all cases show up on the public docket. In recent years, investigations by news media organizations in various jurisdictions have uncovered hundreds of secret cases. Keeping cases off the docket — and off the public record — is different from sealing cases. Typically, the only way to determine the existence of off-the-docket cases is to scroll through public dockets searching for missing case numbers.

Some court decisions disfavor the use of secret dockets. The federal Court of Appeals in Atlanta (11th Cir.) has ruled that the "maintenance of a public and a sealed docket is inconsistent with affording the various interests of the public and the press meaningful access to criminal proceedings." And federal courts are adopting policies to make such  “super-sealed” cases more visible, by informing the public of their existence on district court case lists.

In 2009, the policy body for the federal courts decided that online lists of civil and criminal cases in district courts, which previously excluded sealed cases entirely, should now “include a case number and generic name, such as Sealed vs. Sealed, for each sealed case.” The policy also lets individual district courts decide whether to list additional information on sealed cases, including the presiding judge and how long the case has been around.

In 2011, the Judicial Conference concluded that too many civil lawsuits are shielded from public view and issued a policy that such files should only be sealed when it is required by statute or “justified by a showing of extraordinary circumstances."

The body encouraged judges to consider alternatives to sealing entire case files such as sealing only discrete documents, redacting parts of documents and lifting seals when the reason for keeping information from the public has ended.

To that end, the body endorsed modifying the courts' electronic case files system to include a mechanism that would remind judges to review cases under seal annually.