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Reporters Committee proposes uniform rule on sealing of cases at U.S. Supreme Court

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  1. Court Access
The Reporters Committee for Freedom of the Press has recommended to the U.S. Supreme Court that it establish a procedural…

The Reporters Committee for Freedom of the Press has recommended to the U.S. Supreme Court that it establish a procedural rule for sealing case records and documents. The proposal comes in the wake of a marked increase in the number of sealed cases before the Court and inconsistent standards for limiting access.

According to Reporters Committee research, the sealing of records and documents in cases before the U.S. Supreme Court has grown as follows:

Term

Requests
to seal

Sealing
granted

October 1993

6

2

October 2008

18

18

October 2009

19

14

October 2010 (to date)

28

24

 

“The Supreme Court has long recognized the importance of public access to court records. In addition to the government oversight it allows, open access helps enhance public understanding of court decisions,” said Reporters Committee Executive Director Lucy A. Dalglish. “As the Reporters Committee began to notice this remarkable trend toward sealing information, we became increasingly concerned, particularly since there appeared to be no consistency for the decision to limit access.

“While we understand that there are limited circumstances when sealing is necessary, the Reporters Committee knows firsthand the frustration when there is no recourse for non-parties to oppose the decision,” Dalglish said. The Reporters Committee has twice tried to intervene in cases before the Supreme Court to challenge the sealing of records, only to be denied without explanation.

In a letter to the Court outlining its proposal, the Reporters Committee noted that some motions to seal a case before the Supreme Court are based solely on the fact that the information was sealed by a lower court, without guidance as to why it was sealed or whether there was any review of the sealing decision.

The Reporters Committee suggested that the Court adopt a rule similar to that used in the U.S. Court of Appeals in Chicago (7th Cir.), which begins from a presumption of openness and then dissects each request for sealing on its legal merits and requires an explanation of why secrecy should override open access. Requests also must be narrowly tailored, with a preference for redacted public copies rather than wholesale sealing of entire documents.

The Reporters Committee’s letter to the Court, proposed rule and legal citations are posted on its website.

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 www.rcfp.org, or follow us on Twitter @rcfp.