The Reporters Committee for Freedom of the Press urges the American Bar Association to reject proposed resolutions that would drastically limit public access to criminal justice system records. The measures would violate the First Amendment and state public disclosure laws and roll back the presumption of openness in law enforcement and judicial records.
On August 13-14 in San Francisco, the American Bar Association’s policy making body, the House of Delegates, will vote on some of the most potentially damaging proposals to the cause of open government in recent history.
The ABA’s Commission on Effective Judicial Sanctions and the Criminal Justice Section are co-sponsors of a series of laudable but perilously misdirected resolutions on the voting ballot that purport to encourage the successful reentry and reintegration of people with criminal records through increased employment opportunities.
The effect of these policy recommendations would roll back 40 years of First Amendment jurisprudence creating a presumption of openness in criminal proceedings, violate state open records laws and eliminate the ability of the public and press to act as watchdogs of the criminal justice system.
The commission’s recommendation urges federal, state and local governments to immediately “limit access” to records of closed criminal cases without convictions to everyone except law enforcement agencies.
This measure alone, if adopted by federal, state or local governments as suggested by the recommendations, would dramatically impede the press’s ability to oversee the criminal justice system. It would allow police and prosecutors exclusive access to cases that did not result in convictions, including in cases of prosecutor or police misconduct.
Equally troubling, the proposed resolutions also seek to automatically seal misdemeanor and felony conviction records “after the passage of a specified period of law-abiding conduct.” However law enforcement would again have exclusive access to these otherwise secret files.
The U.S. Supreme Court has long recognized that allowing public access to criminal justice information is essential in order to have effective oversight of our legal system. Journalists, lawyers, social scientists and concerned members of the public use this information to investigate and analyze various aspects of law enforcement, such as racial profiling, corruption and abuse of power in our legal system.
As the First Circuit Court of Appeals stated in a 1989 case that struck-down a Massachusetts statute authorizing automatic criminal case sealing, “Without access to documents the public would not have a ‘full-understanding’ of the proceeding and therefore would not always be in a position to serve as an effective check on the system.”
In addition to closing courthouse records, the proposed resolutions would also restrict public access to government-retained criminal information in records repositories like those found within state police departments and made accessible under many state open records law.
The Reporters Committee for Freedom of the Press strongly opposes these recommendations. While the overall goal of reduced recidivism through employment opportunities for past offenders is commendable, the means by which this end would be accomplished must be rejected.
“The public’s right to know must not be sacrificed simply because employers are wrongly discriminating against those who have encountered the criminal justice system,” Reporters Committee Executive Director Lucy A. Dalglish said.
“Alternative measures, including forbidding employers from using such records as hiring criteria would be more effective and would not surrender the public’s fundamental rights of access,” Dalglish said.
The Reporters Committee for Freedom of the Press is asking local media to cover this attempt to limit access to the public’s criminal justice system records. The Reporters Committee is also asking press organizations, open government groups and concerned members of the public to let ABA attorney-delegates know their positions against these recommendations through print editorials, group discussions and direct communications.
The website for inquiries to the American Bar Association is located at www.abanet.org/contact/
The Reporters Committee’s latest news article on the proposal is available at: www.rcfp.org/news/mag/31-3/police_blotter.pdf
A previous letter to the ABA on this issue is available at www.rcfp.org/news/documents/200719-lettertoab.pdf