Court blocks attempt to seal appeal

From the Fall 2000 issue of The News Media & The Law, page 6.

In July, the U.S. Court of Appeals in Chicago (7th Cir.) reaffirmed its reticence to allow parties to seal records in court cases, holding, “People who want secrecy should opt for arbitration. When they call on the courts, they must accept the openness that goes with subsidized dispute resolution by public (and publicly accountable) officials.”

The decision came in a case involving a dispute over toxic cleanup costs, in which almost all document — including the lower court’s orders — were marked “FILED UNDER SEAL.” The appellate court noted that the district court judge in Benton, Ill., kept even the existence of the case from public view, and never explained his sealing order.

The parties filed all appellate papers marked “UNDER SEAL,” and Union Oil Co., the seller of the recycling equipment that prompted the suit, asked the court to hold the oral argument in a courtroom closed to the public and to use only pseudonyms in any opinion. The company argued that the parties agreed to keep their settlement confidential, and that it should not have to “sacrifice that benefit of the bargain” because it chose to sue over the cleanup.

But the court did not accept that argument.

“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,” the court held. “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.”

The court pointed out that briefs in cases involving the Pentagon Papers and hydrogen bomb plans were available to the press, although parts of appendices were sealed.

“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),” the court ruled.

Finding that none of the documents contained important trade secrets that might justify a seal, the court ordered its clerk to “place all appellate papers in the public record,” and ordered the lower court to do the same.