Federal courts back off super-sealing

From the Spring 2009 issue of The News Media & The Law, page 31.

Reporters covering federal courts are often stymied by the fact that some cases are conducted entirely in secret, never appearing on a public docket. The Judicial Conference of the United States voted earlier this year to make such “super-sealed” cases more visible, by informing the public of their existence on district court case lists.

Established by Congress in 1922, the Judicial Conference describes itself as “the principal policy making body concerned with the administration of the U.S. Courts.” While not binding on individual courts under most circumstances, its policies carry heavy weight and are often incorporated into local court rules.

On March 17, the Conference decided that online lists of civil and criminal cases in district courts, which previously excluded sealed cases entirely, should now “include a case number and generic name, such as Sealed vs. Sealed, for each sealed case.” The policy also lets individual district courts decide whether to list additional information on sealed cases, including the presiding judge and how long the case has been around.

A history of secrecy

The new policy was the latest effort to deal with a problem the Reporters Committee and the Associated Press identified in a pair of 2006 investigations.

The Reporters Committee inquiry found that over five years, 469 cases — mostly criminal prosecutions — were kept completely off the docket in the U.S. District Court for the District of Columbia alone. Users searching for the case number were told that “no such case” existed. Many of the cases that were later unsealed turned out to involve multi-defendant drug or conspiracy prosecutions, where prosecutors and defense lawyers argued that allowing public access to the case would jeopardize the safety of parties. (See “Disappearing Dockets,” The News Media & The Law, Winter 2006).

The Associated Press also looked into secret prosecutions in 2006, and showed that the practice of super-sealing cases was not peculiar to the District of Columbia. The AP report was based on nationwide statistics obtained from the Administrative Office of the Courts and found that, between 2003 and 2005, more than 5,000 defendants nationwide were tried in total secrecy in federal courts. “Most of these defendants are involved in drug gangs,” the wire service reported, “though lately a very small number come from terrorism cases.”

D.C. leads reform efforts

The Supreme Court has strictly limited the extent to which trials can take place behind closed doors. In the 1980 case Richmond Newspapers v. Virginia, the Court recognized a constitutional right of access to proceedings in criminal cases. This right, it said, was based on the “unbroken” history of public criminal proceedings as well as the fact that public access helps courts run more fairly and effectively.

Because of this First Amendment right, the Supreme Court has said no state or federal judge may close proceedings in a criminal case without meeting a demanding test — the court must issue specific, on-the-record findings that “closure is essential to preserve higher values” than the public’s right of access and is “narrowly tailored to serve that interest.” In other words, the court must find both that there is a compelling need for secrecy, and that there is no other way of dealing with the problem, in order to close a criminal courtroom.

Lower courts have applied the same standards to records and proceedings in both criminal and civil cases. And a Department of Justice regulation, 28 C.F.R. § 50.9, likewise requires government lawyers to “consent to closed proceedings only when closure is plainly essential to the interests of justice.” Only the Deputy or Associate Attorney General can consent to closure after applying a test similar to that used in Richmond Newspapers v. Virginia, and government lawyers must review closed proceedings every 60 days “to determine if the reasons for closure are still applicable. If they are not, an appropriate motion [must] be made to have the records unsealed.”

The Reporters Committee and Associated Press investigations identified a related issue. Even in cases where courts have found it necessary to seal a case in its entirety, the question remained whether the matter needed to be kept so secret that court records should falsely claim it did not even exist. Such secrecy made it difficult for a member of the public to ask the court to unseal a case, or even know how many secret cases existed.

When presented with the Reporters Committee investigation in 2006, Judge Thomas F. Hogan, who was then chief judge of the U.S. District Court in Washington, D.C., responded that the court would change its practices.

“That should not happen,” Hogan said at the time. “We don’t sanction secret dockets.”

A short time later, Hogan’s court indeed changed the way it handled sealed cases. Even where cases are hidden in their entirety, typing the case number into the court’s online records system — called PACER — would now show that the case existed, saying “SEALED v. SEALED; Case is not available to the public.”

At the same time, the administrative bodies that oversee federal courts in the United States began to take action as well. On March 31, 2006, for example, the Administrative Office of the U.S. Courts sent a memo to court personnel across the country reminding them of the steps they could take so members of the public trying to access a sealed case are not told that “no such case” exists. Then, in 2007, the Judicial Conference strongly urged all federal courts to indicate clearly to users that cases are sealed instead of displaying a notice reading that “no such case” exists.

Another step toward access

That 2007 Judicial Conference policy did in fact make it possible in districts that adopted it to query a particular case number and at least learn that it was sealed. But sealed cases were still missing from the sequential list of pending district court cases produced by each of the district courts. The case lists simply skipped the case numbers assigned to secret cases.

Reporters covering federal district courts often discovered sealed cases by looking for missing case numbers on sequential case lists. “It you’re diligent about looking at these cases in sequential order, you can spot numbers that aren’t there,” said Jason Trahan, who covers federal courts for The Dallas Morning News, adding that he maintains a list of “missing cases” in local district courts. “I’ll plug them in every once in a while and the case will pop up after it has been unsealed.”

At its March 17, 2009 meeting, the Conference moved to also end the practice of keeping super-sealed cases off court case lists. It voted to list all case numbers, and mark those that have been sealed with a generic caption such as “Sealed vs. Sealed.” A Conference statement billed the latest change as a further implementation of its 2007 request to district courts. The new change will be made nationwide, with new record-keeping software to be provided to the district courts in the fall.

The latest change came at the recommendation of the Conference’s Committee on Court Administration and Case Management. According to a summary of the committee report released by the Conference, Chief Judge Kimba Wood of the Southern District of New York “requested that the reports, which sequentially list the non-sealed cases in the court, be modified to also display information for all sealed civil and criminal cases.” The committee “unanimously endorsed” listing the case number and name such as ‘Sealed v. Sealed’ on the reports for all sealed cases.

Baby steps

Still, the Judicial Conference’s move still allows a court to choose whether to keep all information about a case — beyond its mere existence — secret.

According to the summary, Wood also suggested that all case lists include additional information on sealed cases, including the “assigned judge’s initials; date filed; number of days pending; court office; and presiding judge information.” According to its statement, however, the Conference stopped short of that step and “left it up to the individual district courts to determine what additional information about sealed cases, such as the initials of the assigned judge or the date of filing, should be available to the public.”

Trahan said reporters covering those districts that decline Wood’s invitation to provide additional information will rely on the same techniques they have always used to report on secret cases.

“The rumor mill is such … that you can generally find out about a matter that is in the federal criminal courts without access to the docket,” he said. “If one door’s locked, you find another one that’s wide open. Or break it down, if you have to.”