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First step in unsealing court records: try asking

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Sometimes, it’s amazing what you can get if you ask nicely. Last month, judges in two different courts unsealed records…

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.

On October 8, 2014, Kyle Whitmire, a political commentator for the Alabama Media Group, sent a two-sentence letter to Family Court Judge Anita L. Kelly in Montgomery, Ala., requesting that she unseal the divorce records for U.S. District Judge Mark E. Fuller, who was arrested this summer on misdemeanor domestic battery charges.

The divorce file had been sealed in 2012 without a published opinion or order and over the objection Judge Fuller’s then-wife, Lisa Boyd Fuller, fueling speculation that the file might contain evidence of other domestic violence incidents. It was known at the time that Ms. Fuller, in the course of litigation, had asked Judge Fuller to confirm or deny whether he had physically abused her.

“Court records in divorce cases are typically public documents,” Whitmire wrote to Judge Kelly, “and we believe, in light of recent events involving U.S. District Judge Mark Everett Fuller and the criminal charges that he faces, it is in the public’s interest that these documents in this court file again be open to public inspection.”

Nine days later, Judge Kelly held a hearing about the documents, at which time Judge Fuller’s lawyer consented to the file being unsealed. The divorce file, however, did not contain evidence of prior domestic violence, according to news reports.

A similar approach worked for reporter Charlie Savage of The New York Times, who, in August, urged Judge Royce C. Lamberth of the U.S. District Court for the District of Columbia to unseal grand jury materials related to a subpoena issued to reporter Mike Levine.

In 2011, the Justice Department sought to force Levine, then a Fox News reporter, to reveal his confidential sources for a July 2009 story that “several Somali-Americans were secretly indicted in Minneapolis for joining an al Qaeda-linked group in Somalia.” Levine resisted the subpoena for 16 months, before the Justice Department decided to drop the matter.

To get the documents unsealed, Savage composed an e-mail to Judge Lamberth’s administrative assistant, including a request for the judge to release any documents related to Levine’s motion to quash the subpoena.

Savage didn’t actually know that Levine had filed a motion to quash or that the court had denied the motion. He inferred the chain of events from the facts that Levine avoided testifying for so long and the Justice Department voluntarily withdrew its subpoena, rather than being told by the court to stop pursuing Levine.

Savage argued to Judge Lamberth that the documents were important historical records of an era of unprecedented leak prosecutions.

“As you are no doubt aware, the current administration has brought criminal charges in eight leak-related cases to date, compared with three under all previous administrations,” Savage wrote. “One of those eight cases, involving the former C.I.A. official Roger Sterling, involves a subpoena to a reporter, James Risen, and has led to some groundbreaking litigation regarding the scope and limits of First Amendment protections for reporters . . . .”

He continued: “I submit that a careful release of the presumed litigation before you, with appropriate redactions to protect identity of the target or targets, would be both consistent with the legal policy purpose behind grand jury secrecy rules while also improving public understanding of this era and the important issues raised by it.”

A few months later, Judge Lamberth unsealed the documents, with some redactions, after consultation with the parties.

Neither Whitmire’s nor Savage’s letter cited any legal precedent in support of his request, but both attempted to explain why the public could benefit from disclosure.

The Reporters Committee achieved similar results last year, after writing a letter to the clerk of the D.C. Circuit to inquire about an appellate docket that had been sealed in its entirety. The case appeared to involve a dispute between prosecutors and Jeffrey Thompson, a District of Columbia resident who was being investigated for allegedly financing an illegal shadow campaign in support of D.C. Mayor Vincent Gray, in violation of financial disclosure laws.

The parties appeared to be fighting about sealing or redacting documents seized from Thompson by federal investigators. The district court, in a sealed opinion, gave the parties 20 days to suggest redactions, and, later, issued a redacted memorandum and order that explained the redaction process. Thompson appealed, and the D.C. Circuit dismissed the appeal in an order that was, itself, sealed.

The Reporters Committee wrote to the clerk to ask “that in matters requiring sealing the Court issue orders on sealing and redaction separately from orders on the merits” so that the public can be better informed of the work of the court. The letter also requested that if the court intended to keep the materials under seal, the court place an order on the public docket justifying secrecy.

In a subsequent order, the D.C. Circuit said it construed the letter as a motion to intervene in the lawsuit and as a motion to unseal some of the court records, even though the Reporters Committee did not expressly ask to intervene. The court then ordered the parties to suggest redactions to its previous opinion, which they did, and the court later unsealed a redacted version.

Despite these successes, the strategy doesn’t always work. In fact, in 2012, Judge Kelly in Alabama ignored a previous informal letter from journalists to unseal Judge Fuller’s divorce case.

Whether a simple letter request will be successful will depend on the circumstances of each case, including the nature of information under seal, the length of time the material has been sealed, whether justifications for secrecy continue to exist, and whether the material was properly sealed in the first place. In addition, a lot will depend on the individual judge, who may be more or less devoted to principles of transparency, or who may prefer journalists to follow formal procedures.

But when there aren’t any other options, simply asking the court for disclosure may just do the trick. And because it should not affect the ability of a news organization to later formally intervene, there's almost nothing to lose by trying.