The First Amendment argument for access to secret dockets

How do you argue for access to a secret docket? There is little case law dealing specifically with this issue, but the case law developed on access to courts generally should serve well here.

Under the standard that has evolved, the two issues that courts will look to are whether there is a tradition of openness and whether openness serves a meaningful purpose. This is often called the "experience and logic" test, and was most clearly articulated by the U.S. Supreme Court in Richmond Newspapers, Inc. v. Virginia and Press-Enterprise Co. v. Superior Court.

The history of access to dockets is clear. Court dockets are used to alert the public to cases pending in the judicial system and have a long history of openness. Dockets have been historically available through the clerk of court or notices posted in the courthouse. More recently, many court dockets have been made available on-line or through court computer terminals.

The beneficial purpose is also evident. By examining the docket, the public can learn about the status of a particular case and can be alerted to when particular hearings, arguments and events will occur. The docket also provides the press and public with notice that a particular case may be sealed so that cases cannot proceed behind a veil of secrecy. Such openness is fundamental to the administration of justice. As the U.S. Supreme Court found in Richmond Newspapers, "People in an open society do not demand infallibility from their institutions, but it is difficult for them to accept what they are prohibited from observing."