Supreme Court rejects proposed rule to limit sealed cases

The U.S. Supreme Court has declined to adopt a procedural rule proposed by the Reporters Committee for Freedom of the Press intended to limit the number of civil cases it puts under seal, citing a recently adopted Judicial Conference policy that encourages federal judges to limit the number of cases they seal from public view.

In the wake of a marked increase in the number of sealed civil cases that went before the Court in recent years, the Reporters Committee asked the Court in September to consider adopting a rule that would set standards for limiting public access to the records of the cases going before the high court.

William Suter, Clerk of the U.S. Supreme Court, said in a Nov. 4 letter to the Reporters Committee that the Supreme Court would rely on lower courts to follow the guidelines suggested by the Judicial Conference, rather than adopting its own rules for evaluating the sealing of cases that go before the high court.

“The Court considered your submission and decided not to add a provision to the Supreme Court Rules concerning sealing documents. The Judicial Conference recently adopted a policy that should reduce the number of documents sealed in lower courts. This will, in turn, reduce the number of sealed documents submitted to this Court,” Suter's letter said.

Reporters Committee Executive Director Lucy Dalglish characterized the decision as neither a victory nor a defeat.

"While we're disappointed the Court did not adopt our proposed rule, we are pleased that the justices obviously recognized the problem of excessive court sealing and considered our proposal,” Dalglish said. "We will continue to push toward greater openness in this nation's judicial system."

The proposed procedural rule, which is similar to one already used in the U.S. Court of Appeals in Chicago (7th Cir.), would have the Supreme Court begin with a presumption of openness with any document filed with or by the high court, regardless of whether the civil case was sealed in a lower court.

Any motion to seal the case would have to be narrowly tailored, with a preference for redacting public copies rather than sealing entire documents, and would be weighed on its legal merits. The party would also be required to provide a detailed explanation of specific reasons, such as protecting trade secrets or protecting national security secrets, for why secrecy should override public access.

“That presumption of openness would be in the interest of everyone — the Supreme Court, lawyers who practice before the Court, scholars who study the Court and, of course, the American public,” The New York Times wrote in an editorial supporting the proposal.

Just one day before the Reporters Committee submitted its proposed procedural rule, the Judicial Conference, the policy-making body of the federal justice system, unanimously adopted a national policy that encourages U.S. judges to seal cases only when it is required by statute or “justified by a showing of extraordinary circumstances and the absence of narrower feasible and effective alternatives (such as sealing discrete documents or redacting information), so that sealing an entire case file is a last resort.”

Although it is intended to promote uniformity with its strongly-worded criteria for sealing civil cases in federal jurisdictions across the U.S., the policy passed by the Judicial Conference will not change the rules in any of the lower courts.

Currently, each of the 11 different federal court jurisdictions follow varying rules for determining when a civil case should be put under seal.

In a letter to the Court outlining its proposal, the Reporters Committee highlighted the lack of uniform procedures and the issues it raised, noting that some motions to seal a case before the Supreme Court were based solely on the fact that the information was sealed in a lower court without giving guidance as to why it was sealed or whether there was any review of the decision.

The Federal Judicial Center, too, had highlighted the lack of standards used to decide when U.S. courts sealed civil cases, as well as cases that remain closed to public view even after the reason for sealing has elapsed, in a 2009 report.

Most U.S. courts have held that there is a qualified First Amendment right of access to civil courts. Judges in these courts must, before restricting public access to cases, articulate specific, on-the-record findings demonstrating that closure is necessary to serve a compelling government interest and is narrowly tailored to serve those interests.

Other courts, however, continue to take a wider approach which balances the interests of the parties involved with those of the public and the press.