Keeping the federal courts open

From the Summer 2008 issue of The News Media & The Law, page 8.

A funny thing happened in the federal courts as they started to formulate plans a few years ago to address electronic access to court records.

At first, it looked like the policy-making body of the courts, the Judicial Conference, would adopt a rule that allowed for full electronic access with one twist. That is, while everything that would be normally available at the courthouse would be accessible online, some information that had always been open at the courthouse — like bank account numbers and personal identifiers — would no longer be available, either there or online. It seemed like a reasonable compromise that would still demonstrate a commitment to openness.

But the policy contained one other compromise, which was introduced with little fanfare or warning: information about jurors would be quite a bit harder to find. And later, another bit of secrecy would arise, when the conference suggested that district courts should take a look at their system of hiding plea agreements for defendants who had become cooperating witnesses. (Both of these policies are covered in greater depth in the two articles that precede this column.)

Such blanket policies often take root easily because they seem simple and logical at first blush. Why not protect jurors from the possibility that someone might somehow use their information against them? Why not hide cooperating witnesses so that sometimes dangerous defendants don’t know that an associate has turned against them?

Combine that with the fact that officials often do not see a public need for the same information — requests for access are often met with the blunt response, “Why do you want to know?” — and it’s easy to see why secrecy takes hold even in otherwise reasonable minds. Worse, judges, prosecutors and attorneys can sometimes misinterpret a request for openness as an allegation of wrongdoing, which leads them to dig in their heels and maintain the secrecy.

So to fight for access, it’s clear that the first hurdle is educating those who oppose it. Judges, lawyers, and court personnel (and remember, court clerks often are the main gatekeepers who question the interest in access) can get through a trial more easily if they don’t have to worry about the public looking over their shoulders. But that resistance can often be overcome.

Part of this education comes in how reporters approach the courts when requesting access. Let them know why the public has a stake in the proceedings.

Show the courts — and the public — how lack of information means lack of accountability, and lack of accountability can lead to an unfair, unjust court process. Secrecy in one case may not cause or demonstrate corruption, but continued secrecy with its attendant absence of accountability can lead otherwise honest public servants to cut corners and make compromises that they would not have otherwise made. And those compromises can easily undermine the integrity and reputation of the judicial system itself.

Show how court secrecy leads almost automatically to public distrust of such powerful institutions. A number of studies in the last few years, conducted by the Associated Press, the Seattle Times, the Las Vegas Review-Journal and the Reporters Committee for Freedom of the Press, have led to changes in the system simply because the public airing of the secrecy in the courts was an embarrassment to those who knew that the integrity of the courts depended on a public perception of openness.

And journalists should always pressure the courts to keep the process open. Courts must come to realize that the best approach is always a case-by-case consideration of the need for greater secrecy, where the interests in closing off access to information would have to be compelling and the amount of closure would be narrowly tailored to meet the objectives. Otherwise, a simple rule that mandates closure will always be too broad, keeping some things secret that the public has an interest in knowing.

As a practical matter, always fight for information, and when it is not given, let your objections be known. Always get information immediately – don’t assume that it will be available later with a trip to the clerk’s office. And keep looking for evidence of secrecy, such as missing case numbers on docket lists, “Sealed v. Sealed” popping up on dockets and documents, and such.

The example of reporter Ann McGlynn, detailed on page 5 as part of this cover package, show just what can happen when reporters keep pushing for access in the name of public openness and judicial integrity. McGlynn convinced prosecutors to keep plea agreements open, and she’s able to report an ongoing, important story about sentencing disparities. Her experience makes the point that the fight for access isn’t just an abstract principle or a philosophical interest in more information, but a meaningful method of reporting on the developments that shape our society.