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In Colorado state courts and a federal court in Virginia, administrative burdens are being used to justify partial or full…

In Colorado state courts and a federal court in Virginia, administrative burdens are being used to justify partial or full closure of records.

From the Spring 2006 issue of The News Media & The Law, page 29.

By Susan Burgess

It was routine newsgathering that brought Denver Post reporter Kieran Nicholson to the Jefferson County Judicial District Courthouse in December in search of two public officials’ divorce files.

The clerk’s reaction was anything but routine. The files were no longer public and could be viewed only by the parties. A posting near the clerk’s desk detailed the court’s new policy: “Effective December 1, 2005, domestic case files, probate case files will only be released to a party to the case or an attorney of record.”

Jefferson County is not alone. Ten of Colorado’s 22 judicial districts have enacted similar policies restricting public access to court records. The clampdown is in response to an April 2005 directive from Colorado Supreme Court Chief Justice Mary Mullarkey requiring courts to deny public access to confidential information in court records unless, “due to resource limiations,” they are not able to. The 10 districts have relied on the exception to limit access to domestic relations and probate files to parties and their attorneys. Third parties must get a party’s permission or make a written request to the court to gain access to these records.

“The chief judge’s directive gives each court’s chief judge the prerogative to set up a policy that suits their business practices,” said Karen Salaz, spokeswoman for Colorado Office of the State Court Administrator. “The two areas that are most burdensome to courts because of the amount of information with statutorily mandated redactions are probate and domestic, so that’s where the tightening up has occurred.”

Attorney Steven Zansberg, who represents The Denver Post and Colorado Press Association, sympathizes with the administrative difficulty of making required redactions, but thinks the blanket sealing policies closing a broad category of case files are unconstitutional.

“The press plays a vital role in holding public officials accountable,” Zansberg said. “That vital role is being short-circuited by not allowing the press to serve as a surrogate for the public and inspect records that shed light on whether public officials are fulfilling their duties.”

Closing state court records because of insufficient administrative resources to redact confidential material appears to be unique to Colorado, according to the National Center for State Courts, an organization that tracks state court practices.

The U.S. Supreme Court has never ruled that a court’s administrative burdens justify denying access to court records, but has held that the First Amendment permits a judge to deny access in criminal cases only after making a case-by-case determination that a compelling interest outweighs the public’s significant interest in particular court records.

Appellate courts have repeatedly rejected denying access to court records on administrative grounds. In March, the U.S. Court of Appeals in Richmond (4th Cir.) rejected a trial court’s refusal to provide media access to trial exhibits in Zacarias Moussaoui’s death penalty trial because of the burden it would put on the court. U.S. District Court Judge Leonie Brinkema had ordered that all exhibits be released at the end of trial, citing the practical difficulty of making the information available sooner considering the “volume and character of the anticipated evidence.” “Neither the court staff nor counsel have the time or resources to provide copies of exhibits while the trial is in progress,” she wrote in her order, which the Reporters Committee and eight media organizations asked the appeals court to reverse.

The three-judge appellate panel unanimously rejected Brinkema’s administrative concerns in In re Associated Press. “We do not doubt that the administrative burdens facing the district court are enormous,” Chief Judge William Wilkins wrote. But “we cannot agree that the incremental rise in those burdens that would be caused by providing access justifies the denial of access until after the completion of trial, to all documentary exhibits that have been admitted into evidence and fully published to the jury.” Accordingly, the appellate panel ordered the trial court to release to the media any exhibits provided in full to the jury by 10 a.m. the next day.

The Reporters Committee posted those exhibits on a Web site for reporters covering the trial, which ended with a verdict May 3. The Reporters Commitee posted the exhibits at www.rcfp.org/moussaoui. By the end of the month, the court expects to post all exhibits on its own Web site at www.vaed.uscourts.gov/notablecases/moussaoui/

Similarly, in Valley Broadcasting Co. v. District Court, the U.S. Court of Appeals in San Francisco (9th Cir.) in 1986 overturned a Nevada trial court’s decision to block access to trial exhibits because of the administrative burden providing access would impose. The court “should have given little, if any, weight to its administrative burdens in this case,” Judge Cynthia Holcomb Hall wrote for the unanimous court. The lower court was ordered to grant access to exhibits the day they were received into evidence.

Balancing access and resources

Instead of restricting access to domestic relations and probate files, the Colorado court could require that parties to cases remove confidential information from their court filings, Zansberg suggested in a Feb. 28 letter to Chief Judge R. Brooke Jackson of the First Judicial District in Golden, Colo. Another option Zansberg suggested is charging records’ requesters a nominal fee for time spent redacting confidential information.

Jackson responded that asking parties to redact sensitive information would additionally burden the court by requiring revisions to rules and forms used in such cases, and by requiring parties to file both confidential and redacted public documents in each case. A nominal redaction fee also would not resolve the time and manpower problem and could be a barrier to requesters who could not afford even a nominal fee, Jackson said.

“Our goal is to keep our files accessible to the public while curtailing identity theft and other predatory practices,” Jackson wrote. The public may still access these documents by requesting the court’s permission, he noted.

Colorado Supreme Court Justice Alex J. Martinez, who headed the committee that created the access policy adopted by the chief justice’s directive, agrees that orders like Jackson’s that prohibit access to entire categories of files “are a little broad,” but are “tolerable given that we’re between a proverbial rock and a hard place in terms of access versus protecting private information and attempting to do that without the proper resources.” Fulfilling information requests by commercial entities has “pushed the clerks over the top,” he said.

“We’re in a severe economic crisis so our clerical positions have suffered for years,” he said. “All these things came together and we had judges seal or close by blanket order a number of files.”

Although Salaz’s office does not collect information about the number of requests the public, media, or commercial entities make for domestic relations or probate records, the courts tell her that underfunding makes them unable to redact sensitive information in probate and domestic relations files. “Right now, we’re at about 87 percent of our 2002 staffing, and that was 20 percent below what the staffing should have been,” said Salaz.

Jackson’s clerk’s office in Golden is so under-staffed that it must close at 4 p.m. each day so that two clerks doing the jobs of three clerks can complete their paper work. “We’re running on empty with fewer people than we need to get the work done,” Jackson said. “What we don’t have time for is going through 50 to 75 files daily and search page by page for sensitive information.”

Solving the problem

Courts that have restricted their domestic relations and probate files say they cannot simply reopen them because of laws requiring them to withhold sensitive information, such as Social Security numbers. Parties may not waive the confidentiality of such data, Salaz said. “It’s not an option for the public to choose whether or not to make their sensitive information public because it’s statutorily mandated,” Salaz said.

Nor will the courts consider solely denying commercial enterprises’ access requests, which Jackson estimates make up about half of all requests for domestic relations and probate files in the First Judicial District. Discriminating against particular factions of the public has greater First Amendment problems, Jackson and Martinez said, and would not solve the resources problem since the staff would still have to redact all the confidential information for other requesters.

The courts do not expect sufficient funding any time soon. “There’s only so much money to go around,” Jackson said. The Taxpayer’s Bill of Rights, which requires tax increases to be tied to population increases, “puts severe restrictions on the government’s ability to increase taxes or deal with downturns in the economy and it has limited the ability of the state to fund a lot of things like higher education, roads, courts, and the prison system. There is only so much that the legislature can do.”

Martinez and Salaz say the solution lies in a statewide electronic filing system the Colorado courts are working on that will automatically suppress confidential information in public records.

“The goal is to bring these cases back to the public,” Salaz said. “Transparency is the best communicator we have because people can’t trust courts they can’t see, but they also feel they can’t trust courts that aren’t guardians of their personal information. We have nothing but to gain by working feverishly to have the redactions automatically done so the files can easily be accessed.”

The Colorado Supreme Court also is revising court forms so that Social Security numbers are no longer included on public court forms.

Meanwhile, Martinez and Jackson think the policies should pose no practical problem for the media. “I’ve yet to hear of the press not accessing a file they need,” Martinez said. Even in the districts that have restricted access to domestic relations and probate records, “judges permit access by motion, so access has become more difficult, but it’s not prevented.”

Jackson thinks the media’s concern has been greater than necessary. “Quite frankly, I think that if a media request were made, our office would go out of its way to take time to redact information that’s not supposed to go out or do something else to make sure the media person got his file and got it right then,” he said. “If that didn’t happen, all the media person has to do is ask the judge, and the judge will grant it. I doubt it would ever come to that because I think most of the time our clerk’s office will accommodate the press.”

Attorney Jay Ward Brown, who helped win daily access to trial exhibits in the Moussauoi case, believes the Colorado court’s policies do not stand up to constitutional scrutiny, regardless whether reporters’ ability to access domestic relations and probate records is merely more difficult, not impossible.

“The public access right to most of these materials is well-established and the only question is how the court should honor them, not whether,” he said. “The right of access is not truncated by budgetary short falls. No one likes spending the money, and court staff have many duties, but the fact is that the public has a right to those materials so it needs to be accommodated.”

The Colorado courts’ policies make it more difficult, maybe impossible, for journalists to confirm factual data on a daily deadline. And, Martinez conceded, policies that make people work harder to get information are deterrents. If journalists first must write a formal request and then await a decision before getting information from a court file, they may be less inclined to make a request, especially if they’re uncertain it will be granted.

Nicholson said that “access to the divorce and probate files of public officials is particularly important because if someone’s a public figure, the public should be able to know what’s going on in their life.”

Frustrated reporters should suggest ways to help courts ease their burden, Brown recommended. “Most courts greatly appreciate the media trying to meet them half way.”

The Colorado Press Association is closely watching House Bill 1169, which would negate the controversial section of the Supreme Court directive that courts have interpreted to give them the authority to order blanket closures of court records if they don’t feel they have adequate staffing to redact confidential information.

But if the bill does not pass, “We may consider legal action,” said Ed Otte, director of the association. “Right now, we’re focusing on the bill in this legislation and we won’t know the fate of that” until the session ends.

The Denver Post also is waiting to see whether the courts resolve the problem.

“It’s my understanding that there are some folks on the judiciary who are surprised by how far the directive goes,” said Editor Gregory Moore. “If the courts don’t solve the problem, though, we’ll take it to the next level.”