Secret Courts

This section covers access to courts. Courtrooms traditionally have been open to the public, but judges often close proceedings or seal documents when they feel secrecy is justified. This section also covers state and federal laws governing camera coverage of trials.

In re WP Company LLC (U.S. v. McDonnell)

March 27, 2015

The Washington Post sought access to completed jury questionnaires in the criminal trial of former Virginia governor Robert F. McDonnell and his wife in the U.S. District Court for the Eastern District of Virginia. The district court released the completed questionnaires, but with names and juror numbers redacted, making it impossible for the public to know which questionnaires corresponded with empaneled jurors. The Washington Post filed a petition for a writ of mandamus in the Fourth Circuit, seeking an order directing the district court to identify which questionnaires were completed by seated jurors. The Reporters Committee and 22 media organizations filed an amicus brief, arguing that the First Amendment provides a presumptive right of access to juror questionnaires, which are merely a written form of oral voir dire, which is presumptively open to the public. The brief argues that the right of access includes the right to identify which questionnaires match with seated jurors.

Grand jury secrecy comes at a cost

Commentary
Page Number: 
7
Tom Isler

Two new lawsuits are challenging the continued secrecy of the grand jury investigations related to the deaths of Michael Brown in Ferguson, Mo., and Eric Garner in Staten Island, N.Y. The suits demonstrate just how secret the information gathered by a grand jury is, while also making a compelling case for the public interest in greater access.

Fourth Circuit invalidates gag order and sealing order in Blankenship criminal trial

Tom Isler | Secret Courts | News | March 5, 2015
News
March 5, 2015

A federal appeals court today invalidated a gag order and sealing order that had been entered in the criminal case against Donald Blankenship, former CEO of Massey Energy Co., who faces charges stemming from the Upper Big Branch mine explosion in 2010 that killed 29 people.

The ruling is a victory for the media, which had been unable to access many court filings in the case and had been unable to discuss the substance of the charges with lawyers, parties, victims, victims’ family members, and others, who were subject to a broad gag order.

Media groups appeal gag and sealing orders in Blankenship mining case

Tom Isler | Secret Courts | News | February 25, 2015
News
February 25, 2015

Media organizations are fighting to overturn a gag order and sealing order entered in connection with the criminal trial of Donald Blankenship, former CEO of Massey Energy. The matter is pending in the U.S. Court of Appeals for the Fourth Circuit.

In re The Wall Street Journal

February 20, 2015

Donald Blankenship was charged with conspiracy to violate federal mine safety and health standards and securities fraud, among other things, stemming from the Upper Big Branch mine explosion in 2010, which killed 29 people. Immediately following the indictment, a federal judge ordered the parties, attorneys, witnesses, families of victims and others from making any statements to the media, and restricted all access to filings in the case. A coalition of media outlets, including The Wall Street Journal, The Associated Press, National Public Radio, and the Charleston Gazette, intervened to overturn the restrictive orders, but the judge denied the request and found that news coverage was sufficiently likely to prejudice Blankenship’s right to a fair trial. The media intervenors appealed to the Fourth Circuit.

Grand jury secrecy comes at a cost

Tom Isler | Secret Courts | News | January 13, 2015
News
January 13, 2015

Two new lawsuits are challenging the continued secrecy of the grand jury investigations related to the deaths of Michael Brown in Ferguson, Mo., and Eric Garner in Staten Island, N.Y. The suits demonstrate just how secret the information gathered by a grand jury is, while also making a compelling case for the public interest in greater access.

First step in unsealing court records: try asking

Sometimes a simple letter from a reporter will prompt a court to disclose sealed documents
Feature
Page Number: 
8
Tom Isler

Sometimes, it’s amazing what you can get if you ask nicely.

Last month, judges in two different courts unsealed records in response to informal letter requests from journalists — not formal motions prepared by lawyers. The Reporters Committee for Freedom of the Press similarly caused documents to be unsealed last year after sending a letter to the clerk of the U.S. Court of Appeals for the D.C. Circuit, asking that the court to publicly explain its decision to seal a docket in an appellate case.

These are encouraging results for journalists or news organizations that do not have the resources to hire a lawyer every time they want secret court documents to be made public.

Courthouse News Service v. Planet

November 7, 2014

Courthouse News Service (CNS) filed a federal lawsuit against a California state superior court for delaying access to newly filed unlimited civil complaints for days or weeks. CNS argued that the First Amendment provides a right of access to civil complaints that attaches immediately upon filing, and its reporters should be able to inspect newly filed civil complaints the day they are filed. A federal district court granted the defendant-court's motion to dismiss, finding that the type of access requested was not required under the First Amendment. The Reporters Committee and 25 other media organizations argued that a First Amendment right of access attaches to civil complaints when they are filed. The brief argued that the public has a right to know what matters are occupying space on court dockets and consuming public resources, and that complaints reveal a wealth of information about how citizens use the judicial branch.

United States v. Mohammed Hamzah Khan

October 24, 2014

A 19-year-old American, Mohammed Hamzah Khan, was arrested as he tried to fly from the United States to Turkey (ultimately to go to Iraq or Syria), and he was charged with attempting to provide material support to terrorist organizations. The government moved to have Khan's detention hearing closed to the public, because privacy interests of third-party minors would be implicated. The government filed its motion and brief under seal, so the precise justification to close the hearing was unknown. The Reporters Committee wrote a letter to express concern about closing the detention hearing, arguing that there is a well-established First Amendment right of access to preliminary proceedings in criminal cases, which may only be overcome by an overriding interest based on findings that closure was essential to preserve higher values and was narrowly tailored to serve that interest.

Kennedy v. Orszag

January 21, 2014

The Reporters Committee for Freedom of the Press, on behalf of a coalition of media organizations, successfully intervened to unseal records in a child-support modification case in D.C. Superior Court. The parties in the case are former Office of Management and Budget director and current Citigroup executive Peter Orszag and his ex-wife Cameron Kennedy. Orszag had tried to seal his financial records that were evidence in the case, arguing that release could damage his efforts to return to government service; that his confidentiality agreement with Citigroup exempted his salary from disclosure, and that family court trials do not have the same tradition of openness as other civil proceedings. The Reporters Committee argued that sealing runs counter to the presumptive right of access under common law to court documents in civil trials in Washington, DC.