An interview with Daniel J. Klau

An Interview with Daniel J. Klau

Daniel J. Klau is a partner in the Hartford, Conn., office of Pepe & Hazard LLP. His practice focuses on appellate, media and privacy litigation. His media and privacy practice includes representing newspapers and other publishing entities in defamation and invasion of privacy cases and in matters involving media access to court files and judicial proceedings. Klau represents the Connecticut Law Tribune in the case regarding access to the Level 1 docket.

If reporters suspect that a case exists that is not on the docket, what is the first thing they should do?

Initially, a reporter should speak to the clerk's office and ask for the case file. If the clerk refuses to acknowledge the case or provide the file, ask to at least see the judge's sealing order. If that request also is refused, send a letter to the clerk making these requests in writing and asking for a written response.

If the court denies a formal request to view the secret docket, how would a reporter obtain access to it?

If a reporter has reason to believe that a secret case exists, she should consider filing a lawsuit in either federal or state court seeking the disclosure of the docket number and names of the parties in the secret case. As of July 2003, such a case is pending in federal district court in Connecticut. See The Hartford Courant Company v. Pelligrino, Dkt no. 3:03 CV 0313 (CFD). This case names the Chief Court Administrator and the Chief Justice of the Connecticut Supreme Court as defendants (in their administrative capacities) and seeks an order compelling them to disclose the above information. The defendants have filed motions to dismiss the cases, arguing that they belong in state court. No decision has yet been rendered on the motions.

Are courts required to give the public notice before they seal an entire case or remove it from the docket?

As a general rule, notice is required before a court seals an entire case. In Connecticut, Practice Book rules no longer permit a case to be removed from the docket. Other sealing orders, however, are subject to a public notice requirement. The Web page for the Connecticut Judicial Branch contains a special link that directs readers to motions to seal that are on a court's motion calendar. The link to the Web page is: www.jud2.state.ct.us/Civil_Inquiry/SealedShortCalendar.asp.

Why is public notice so important?

When a judge rules on a motion to seal a court file or document therein, she must weigh the public's compelling interest in having open access to court files against the privacy interests of the party who filed the motion. Too often, all of the parties in the case (plaintiffs and defendants) want a case sealed. Thus, when a sealing motion is filed, the judge may not have the benefit of hearing arguments opposing the motion. By requiring public notice of sealing motions, the media, who usually represents the public's interest in sealing cases, can take steps to intervene in the case and, if appropriate, challenge the sealing motion. Without public notice, no one other than the court and the parties may ever be aware of the sealing motion.

If both parties agree that the case should not appear on the docket, will the case be kept secret?

Notwithstanding the wishes of the parties, the case should remain on the docket.

What test does the court use to determine whether a docket should be kept secret?

Some state statutes require that certain types of cases be kept secret. For example, certain statutes provide for the erasure of court records after a period of time has elapsed. Reporters need to look to the terms of the specific statutes for the sealing requirements.

What arguments can reporters make to combat the sealing of court dockets?

The best thing that reporters can do is use the power of the press to focus public attention on the existence of secret dockets. The media disclosures in Connecticut about the existence of secret cases led to dramatic changes in the court rules, as discussed above. As for legal arguments, the law is unsettled, but reporters should be prepared to argue that secret cases violate the First Amendment and, possibly, the due process under the Fifth or Fourteenth Amendments.

Isn't it difficult for reporters to argue that it
is in the public interest to provide access to
the secret docket if they don't know what the
case is about?

Yes. The existence of a secret docket naturally leads to many Catch-22 arguments. However, reporters need to be aware of a subtle difference between: 1) challenging that part of a sealing order that makes a case disappear from the docket; and 2) challenging the part of a sealing order that simply orders that the files should be maintained under seal. The first challenge only seeks minimal information, such as a docket number and docket sheet. The second challenge leads to the unsealing of the entire file, or at least certain documents. While arguing the public interest with respect to the second challenge is difficult in the absence of information about the case, arguing that the public has an interest in at least knowing about the existence of a case is much easier.