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Reporters Committee lauds federal court’s ruling that secret Del. court arbitration is unconstitutional

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  1. Court Access
A federal judge in Delaware stood up for the right to be informed about important disputes that may affect public…

A federal judge in Delaware stood up for the right to be informed about important disputes that may affect public health and safety Thursday when she declared unconstitutional state court rules that allow blanket confidentiality in private arbitration proceedings and records.

The Reporters Committee for Freedom of the Press argued in a friend-of-the-court brief that because Delaware Chancery Court rules not only require the court to approve settlement agreements between private parties but actually authorize the court to assist in reaching them, documents filed in connection therewith are judicial records subject to a First Amendment right of public access.

“Parties concerned about the confidentiality of information contained in documents related to private arbitration do not have to consent to the jurisdiction of the Chancery Court. But when they do invoke the authority of a publicly funded court, the rules governing confidentiality change, and a presumption in favor of openness attaches to the records at issue,” the brief in Delaware Coalition for Open Government, Inc. v. The Delaware Court of Chancery stated.

U.S. District Judge Mary A. McLaughlin agreed. She also recognized an even broader right of access, finding that the First Amendment likewise protects the right of access to Chancery Court proceedings, which “function[] essentially as a non-jury trial before a Chancery Court judge.”

The public benefits of openness “accrue to civil disputes among corporate citizens as well as to those between individuals, both of whom can participate in the Delaware procedure. Diverse business disputes may be submitted to the Chancery Court, and open proceedings can serve to educate the public about important legal and social issues.”

McLaughlin rejected the argument by the Chancery Court, its judges and the state that the interest in discouraging parties from using other, non-public forums rather than those in Delaware to resolve their disputes outweighed the public benefits of openness.

“Even if the procedure fell into disuse, the judiciary as a whole is strengthened by the public knowledge that its courthouses are open and judicial officers are not adjudicating in secret,” she said.

The Reporters Committee’s amicus brief was joined by The American Society of News Editors,
The Associated Press, Maryland D.C. Delaware Broadcasters Association, The New York Times Company and The Washington Post.

About the Reporters Committee for Freedom of the Press

Founded in 1970, the Reporters Committee for Freedom of the Press offers free legal support to thousands of working journalists and media lawyers each year. It is a leader in the fight against persistent efforts by government officials to impede the release of public information, whether by withholding documents or threatening reporters with jail. In addition to its 24/7 Legal Defense Hotline, the Reporters Committee conducts cutting-edge legal research, publishes handbooks and guides on media law issues, files frequent friend-of-the-court legal briefs and offers challenging fellowships and internships for young lawyers and journalists. For more information, go to, or follow us on Twitter @rcfp.

Related Reporters Committee resources:

· Secret Justice: Alternative Dispute Resolution

· The First Amendment Handbook: Civil courts — Cameras and recording equipment

· Dig.J.Leg.Gd.: Closing the courtroom

· Dig.J.Leg.Gd.: Sealing the trial record