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Circuit court reaffirms open court records

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  1. Court Access
    NMU         SEVENTH CIRCUIT    

    NMU         SEVENTH CIRCUIT         Secret Courts         Aug 10, 2000    

Circuit court reaffirms open court records

  • Federal appellate court holds that people who resolve conflicts via public litigation “must accept the openness that goes with subsidized dispute resolution”

Saying that when people “call on the courts, they must accept the openness that goes with subsidized dispute resolution by public (and publicly accountable) officials,” the U.S. Court of Appeals in Chicago (7th Cir.) held on July 18 that court records absent “compelling justification” must remain open for public even if the lawsuit involved enforcement of a “confidential” settlement.

“Calling a settlement confidential does not make it a trade secret, any more than calling an executive’s salary confidential would require a judge to close proceedings if a dispute erupted about payment (or termination),” Justice Frank Easterbrook wrote for the unanimous three-judge panel. “Many a litigant would prefer that the subject of the case — how much it agreed to pay for the construction of a pipeline, how many tons of coal its plant uses per day, and so on — be kept from the curious (including its business rivals and customers), but the tradition that litigation is open to the public is of very long standing.”

Although the case itself involved enforcement of a settlement between a seller and purchaser of environmental recycling equipment, Easterbrook’s opinion reaffirmed that all cases and court records are presumptively open to the public.

“Judicial proceedings are public rather than private property, and the third-party effects that justify the subsidy of the judicial system also justify making records and decisions as open as possible,” Easterbrook wrote. “What happens in the halls of government is presumptively public business. Judges deliberate in private but issue public decisions after public arguments based on public records. The political branches of government claim legitimacy by election, judges by reason. Any step that withdraws an element of the judicial process from public view makes the ensuing decision look more like fiat, which requires compelling justification.”

Easterbrook’s opinion came in the wake of the trial court’s decision to allow almost every document filed in the lawsuit involving enforcement of an environmental settlement — including the trial court’s opinions, orders and judgment — to be filed with the clerk under seal, meaning not subject to public review. “As far as we can tell, the district court has kept not only the details but also the existence of this case from public view,” Easterbrook wrote.

After the Seventh Circuit “directed the parties to show cause why the briefs and other papers should not be placed in the public record,” Unocal, the defendant in the lawsuit, requested that the appellate court “not only to seal the briefs and record but also to hold the oral argument in a courtroom closed to the public and to use only pseudonyms in any opinion” because “the parties agreed to keep their settlement confidential.” The appellate court rejected this argument, noting, “Even disputes about claims of national security are litigated in the open. Briefs in the Pentagon Papers case and the hydrogen bomb plans case were available to the press, although sealed appendices discussed in detail the documents for which protection was sought.”

(Union Oil Co. v. Leavell)

© 2000 The Reporters Committee for Freedom of the Press

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