Under seal

An increasing number of cases filed under seal at the Supreme Court troubles media access advocates

From the Summer 2011 issue of The News Media & The Law, page 41.

In 2009, the West Virginia Department of Health and Human Resources filed a child abuse and neglect petition against Carolyn Mallo and Alexander Doran. It alleged that their 14-year-old son lived in deplorable household conditions, and had been sexually abused by an uncle living in the home. His cousins, ages 6 and 7, were also living in the home.

Three days earlier, the 14-year-old had murdered an 82-year-old woman who lived across the street.

The case received intense media scrutiny as the sordid details of the boy’s life piled up. Media reports said that, when police came to the house to question the boy about the murder, they found a large knife lying on the kitchen floor, and two swords in the back bedroom. They found shards of glass on the floor and large holes in other parts of the floor that were big enough for children to fall into.

As the case to remove the children made its way through the court system, the family’s names frequently appeared in press coverage. Despite the widespread public knowledge of the case, once the mother filed a petition to have the U.S. Supreme Court hear the case, the names of the 14-year-old’s parents were redacted from court filings.

In recent years, the number of cases involving court documents that include information filed under seal in the U.S. Supreme Court has increased dramatically. Through database searches, the Reporters Committee for Freedom of the Press found that, in 1994, at least four cases involved documents under seal. In 2005, there were nine such cases. In 2009, at least 19 cases involved documents under seal. So far in 2011, at least 16 cases involve documents under seal.

There are legitimate reasons to file documents, or portions of documents, under seal, as some of the cases suggest: Some documents are filed under seal to protect people in the federal witness protection program, and others redact the names of juveniles convicted of crimes or the identities of government informants. But the increase in the number of cases involving sealed information is indicative of an increasing willingness to have secret information in court files, something the Supreme Court’s own precedents have discouraged.

“It’s a very troubling trend,” said David Schulz, an attorney who has represented The New York Times in efforts to unseal court documents. “We don’t have a system of secret justice in this country, and it seems like more and more things are happening behind closed doors.”

While some of the increase can be attributed to a steady stream of cases involving Guantnamo Bay detainees and documents the government alleges could harm national security if released, many are run-of-the-mill cases involving things that someone, somewhere, wants to keep under wraps.

In some cases, the original orders sealing the documents are missing, and nobody knows why the case is still proceeding in secret. In others, the entire rulings of lower courts are under seal. In one case, the existence of a case was not publicly known until a petition for certiorari appeared at the Supreme Court.

One attorney who has filed documents under seal at the Supreme Court speculated that the Internet is responsible for the increase in secret documents at the Court.

“Before, [the courts used] paper filings,” said Michael Hasse, a New London, Conn., attorney who had a client in Puerto Rico cooperating with the government. The client’s name was removed from the court filings so he would not face retribution in prison. Before, someone would have to go to the court house and physically sort through the court records to find information such as who is providing information to the government from jail. But “right now, anybody with a home computer . . . can read [the court documents],” Hasse said.

A right of access to court documents

The Supreme Court has recognized a common law right of access to inspect and copy public records and documents, including judicial records, as well as a First Amendment right of access to criminal court proceedings.

In the 1978 case Nixon v. Warner Communications Inc., several of former President Richard Nixon’s associates were on trial for, among other things, conspiring to obstruct justice in connection with the investigation of the 1972 burglary of the Democratic National Committee headquarters at the Watergate hotel. A group of broadcasters petitioned the court looking for permission to copy, broadcast and sell to the public portions of the famous, secret Oval Office recordings that Nixon had created.

When the case reached the Supreme Court, the Court held that the broadcasters could not have access to the tapes because Congress had already developed an alternative plan for the eventual release of the tapes through the Presidential Recordings and Materials Preservation Act. But the Court also said “it is clear that the courts of this country recognize a general right to inspect and copy public records and documents, including judicial records and documents.”

“In contrast to the English practice, American decisions generally do not condition enforcement of this right on a proprietary interest in the document or upon a need for it as evidence in a lawsuit,” Justice Lewis Powell said. “The interest necessary to support the issuance of a writ compelling access has been found, for example, in the citizen’s desire to keep a watchful eye on the workings of public agencies . . . and in a newspaper publisher’s intention to publish information concerning the operation of government.”

Two years later, in Richmond Newspapers, Inc. v. Virginia, the Supreme Court held that a trial court could not close a murder trial to the public and the media without sufficient countervailing interests. It held that a Virginia statute violated the constitutional right of the public and press to attend criminal trials by providing the trial court with too much discretion to close a trial.

“A trial courtroom . . . is a public place where the people generally — and representatives of the media — have the right to be present, and where their presence historically has been thought to enhance the integrity and quality of what takes place,” Chief Justice Warren Burger said.

However, the right of access to court documents is not absolute: Courts usually apply a balancing test to determine whether the interest in disclosure outweighs any interest in confidentiality. The standard the courts use depends on whether the right of access comes from the common law, the First Amendment, or state or federal statutes guaranteeing access.

Unknown why some records were sealed

In the last two court terms, more than 30 cases have gone to the Supreme Court with at least part of the record under seal. The vast majority of these records are petitions for writs of certiorari, petitions to try to convince the Court to hear the case, the great majority of which are rejected.

At least six of the cases involve the sealing of some or all of a lower court’s decision. At least four of them involve names of juveniles, and at least three involve detainees at Guantnamo Bay. At least two involve medical information about someone involved in the case.

In at least two cases, the initial court orders that sealed the cases had been lost, and the reasons for sealing the cases were not recorded anywhere.

In one of those cases, Sealed Petitioners v. United States, the names of several defendants were withheld from court records. According to a 2009 petition for a writ of certiorari, the defendants were charged in a multi-count indictment with crimes related to the kidnapping and murder in several South American countries of nationals from the United States and elsewhere. The defendants agreed to enter plea agreements.

The certiorari petition, which was ultimately denied by the court, argues that the lower court made a mistake in interpreting the Federal Rules of Criminal Procedure when it came to the plea agreement. The accompanying motion to seal the petition does not say why the action is necessary: “The case which was sealed by the United States District Court for the District of Columbia, at the government’s request, remained sealed throughout the appellate proceedings,” it said. “Upon information and belief, the original order sealing this case cannot be found.” The Supreme Court granted the motion to seal, with a redacted copy available for the public.

In another case involving a dispute about federal sentencing guidelines, Sealed Petitioner v. United States, the motion to seal the petition said “the district court sealed the case” as grounds for the motion, and the “case remained sealed throughout the appellate proceedings.” In a footnote, attorneys arguing for the sealing said “counsel does not have a copy of the original court order sealing this matter. Counsel contacted the district judge’s chambers on July 27, 2009 and was advised after a search of the judge’s files and the clerk’s office case jacket that the order could not be found.” That motion to seal, with a redacted version for the public, was also granted.

In one case, there was evidence that the Supreme Court pushed back on parties who wanted the whole record under seal.

In Gomez v. California, Antonio Velasquez Gomez was charged with possessing methamphetamine. The trial court denied a motion to suppress the evidence against him, which had been discovered during a search conducted pursuant to one of many warrants issued in connection with an unrelated murder investigation, and his attorney has been challenging the search ever since.

When it came time to petition the Supreme Court to hear the case, his attorney asked to file the entire petition under seal.

“That’s what I’d been doing all along,” said attorney Paul Kleven. “Any issue having to do with that part of the case, we’d file it under seal and the courts would be comfortable with that.”

This time, though, the Supreme Court demanded that he file a redacted copy for the public as well. “They didn’t really say [why],” he said. “The idea was just that they want it to be open, if possible.”

Kleven said that information about the search warrants had at one time been sealed to even him. He had to ask the trial court to unseal some of the information so he could use it to argue on behalf of his client, but he had to agree that he would not share the information with his client.

“It’s very rare” that information would be sealed even to attorneys arguing the case, he said. The government didn’t “want people in general to know things about their investigation and they in particular didn’t want my client to know about the investigation.”

He has not yet heard whether the Court will hear the case.

Sealing Guantnamo Bay records

One small subset of the cases under seal at the Supreme Court involves detainees at Guantnamo Bay, Cuba. Some involve habeas corpus petitions where the detainee is seeking to be released. Others involve the government’s efforts to repatriate the detainees to their home countries, where many argue that they will face abuse and torture.

The New York Times recently tried to intervene in the case of Ameziane v. Obama in a federal appellate court. The issue in the case, which the Supreme Court eventually declined to hear, is whether something should be designated as “protected” information pursuant to a protective order by a District Court in the Guantanamo detainee habeas cases. Those cases define “protected information” as “information that is not suitable for public filing or disclosure,” according to the response to the motion to proceed under seal.

It’s not clear what the “something” at issue is, because it is blacked out in court filings. One motion filed by the government in the case starts with the statement that “Petitioner is a detainee at the United States Naval Station at Guantanamo Bay, Cuba.” Five inches of blacked-out text follow.

“In the Ameziane case, the cert petition was filed with a request that it be filed under seal,” Schulz said. “A reporter who had been somewhat interested in that case didn’t even have enough information to know what the issue was that was being taken to the Supreme Court, because the Court of Appeals opinion was entirely under seal. The whole thing was a mystery. It’s very troubling.”

In 2010, the newspaper asked the Court of Appeals for the D.C. Circuit to unseal its order, and eventually it issued a redacted version for the public. “But even from the redacted opinion, it was virtually impossible to understand what the issue was,” Schulz said.

This state of affairs troubles him. “Fundamentally, we operate with open courts,” Schulz said. “When things are being sealed, without any explanation as to why they’re being sealed and not any public notice about what has happened in the case, it raises legitimate concerns about how the public can exercise oversight of the courts and how we can assure ourselves that justice is being carried out when everything happens behind closed doors.”

Trying to intervene

In 2009, two federal grand jury subpoenas were issued to a Kansas woman named Siobhan Reynolds and the advocacy organization she leads. The organization, the Pain Relief Network, supports physicians’ ability to provide appropriate pain management treatment without risk of criminal prosecution. The subpoenas were part of a grand jury investigation related to the prosecution of a physician who operated a medical practice specializing in pain relief.

The ACLU stepped in to advocate for Reynolds’ First Amendments rights. She refused to comply with the subpoenas and moved to quash them. When she was unsuccessful, contempt proceedings were initiated against her. She spoke openly in the media about the subpoenas, even though the case was moving its way through the court system without a trace.

When a petition for certiorari showed up at the Supreme Court, it was the first mention of the case on a public docket.

“The opinion of the court of appeals . . . is not yet reported in any source, official or unofficial, and was issued under seal,” the motion to seal said. “The docket in this case is sealed in its entirety, including the opinions and orders of the district court and all pleadings filed by the parties and amici.”

The Reporters Committee for Freedom of the Press moved to intervene in the case before the Supreme Court. In its motion, the Reporters Committee argued that, even though there is a historically recognized need for secrecy in grand jury proceedings, “such secrecy is an exception to the general policy of open and public administration of justice, and should not be expanded unnecessarily to restrict public access” to information about contempt proceedings that was ancillary to the grand jury proceedings themselves.

The Court denied the request to intervene.

A review of recent Supreme Court dockets suggests that attempts to intervene for purposes of unsealing Supreme Court records are rare.

The Reporters Committee, along with a group of media organizations, also tried to intervene at the Supreme Court level in 2004 in a habeas corpus case involving an Algerian man, married to an American, who was detained by federal authorities after Sept. 11, 2001. The entire case was under seal, and it only became known to the public after a clerk mistakenly listed part of the docket on PACER, the federal court system’s online filing system.

That request to intervene was also denied.

Statutes that require sealing

State and federal governments have statutes that require certain information in cases to be sealed, overcoming the common law right of access to court proceedings.

In West Virginia, a Charleston-area surgeon named Rakesh Wahi sued the Charleston Area Medical Center regarding disputes about the suspension of his medical privileges at that hospital. In the written opinion of the United States Court of Appeals in Richmond, Va., (4th Cir.), names of people at the hospital with whom he worked and information about surgical procedures he performed are redacted.

“West Virginia has a peer review statute which is designed to encourage the peer review of health care providers by other health care providers,” said Wahi’s attorney, Richard Jones. “In order to encourage candid peer review, West Virginia statutes provide that all of that is to be privileged.”

When Jones petitioned the Supreme Court to hear the case in 2009, he filed a motion with it to file the petition under seal, because it contains “material from the decision below redacted and or sealed by the U.S. Court of Appeals for the Fourth Circuit.”

The Court granted the motion to file the material under seal, even though it eventually declined to hear the case.

Courts are usually receptive to those motions, Jones said. However, he has been required to file redacted copies for the public.

“Courts are generally reluctant to close the public from anything in a public filing so you have to demonstrate reasons that the matters should be sealed,” he said. “Courts are reluctant to just seal the entire case.”