From the Spring 2009 issue of The News Media & The Law, page 32.
In 2006, amid heightened concerns about retaliatory violence against cooperating suspects in criminal cases, the Justice Department asked the U.S. Judicial Conference to restrict online access to plea agreements.
The launch of the Web site “Who’s A Rat,” which enables users to track criminal defendants who turn into government witnesses, motivated the Justice Department’s request. But transparency advocates pushed back, and the Judicial Conference ultimately opted to let each federal district decide whether its plea agreements would be posted online.
That was then. Three years later, an informal survey of the district court policies suggests that most do not withhold access to plea agreements via PACER.
Indeed, the Southern District of Florida recently restored electronic access to documents it had removed from PACER in response to the Judicial Conference’s alert. Judge Federico Moreno earlier this year ordered that all plea agreements filed after Feb. 20 would be presumptively public, available in the courthouse or on PACER. A judge could specifically seal the plea agreement, but in the absence of that step, Moreno said, the documents must be available.
“The public’s interest in access must prevail,” Moreno wrote in the Jan. 22 order, saying there are other ways to protect witnesses without resorting to the wholesale removal of plea agreements from PACER. “Restricting access to all plea agreements is overly broad.”
According to the National Law Journal, Moreno’s decision capped a study and a hearing before the entire court that he called to address the question of remote access to plea agreements. Most of the judges backed his opinion.
Advocates of the more restrictive option claim it’s necessary to protect the safety of defendants who cooperate with the state. But Thomas Julin, a First Amendment lawyer in Miami, says restricting electronic access “denies access to people who don’t have the time or resources to get down to the courthouse,” thus sharply curtailing the scope of public oversight the judiciary could garner in the digital age.
Will the Southern District of Florida be a bellwether for the group of jurisdictions that have heeded the Justice Department’s call for greater secrecy? It’s far from clear. Julin, at least, is optimistic: “The trend is all in one direction, posting public information online is recognized as very important to transparency. That’s what makes people believe the courts are doing their job.”