Access to Plea Agreements

By Brian Westley

Although the U.S. Justice Department no longer wants the public to have online access to criminal plea agreements, most federal courts have refused to categorically exclude the posting of such information.

Instead, a majority of U.S. District courts have taken a case-by-case approach to restricting access with a presumption that such records remain open, according to a review of the nation’s district courts conducted by The Reporters Committee for Freedom of the Press.

This approach has been welcomed by media organizations, which worried that blanket restrictions on plea information would make it difficult for reporters to monitor how criminal proceedings are resolved.

“It would greatly hamper our ability,” said Ken Ward Jr., a Charleston Gazette reporter who recently convinced the U.S. District Court for the Northern District of West Virginia to relax its policy of withholding all plea agreements from the public – both online and at the courthouse. (see sidebar, “Fighting for access,” p. 4)

The Justice Department became alarmed about the public’s ability to access plea agreements on the Internet after information about defendants who agreed to cooperate with authorities began appearing on websites like “Who’s A Rat” (whosarat.com). That prompted the agency in 2006 to urge the federal courts to eliminate the public’s access to plea agreements on PACER, the courts’ online docketing site.

“We are witnessing the rise of a new cottage industry engaged in republishing court filings about cooperators on Web sites . . . for the clear purpose of witness intimidation, retaliation and harassment,” a memo from the agency said.

The Justice Department wanted the courts to come up with a uniform, nationwide policy for PACER access. In response, the Judicial Conference of the United States asked the public for feedback about the agency’s demands. The comments overwhelmingly favored retaining public Internet access.

Rather than adopting a mandatory policy, in 2008 the U.S. Judicial Conference, the federal court entity that implements practices and procedures for all federal courts,  asked the federal courts to consider a half-dozen approaches aimed at striking a balance between protecting information about those who cooperate with law enforcement and the need to maintain legitimate public access to court files.

Two-and-a-half years later, The Reporters Committee has found that a majority of the 94 federal judicial districts restrict Internet access to the plea agreements on a case-by-case basis. This means that plea agreements that reveal cooperation by the defendant are presumptively open to the public. However, in instances where revealing such cooperation could lead to a substantial probability of harm, defense attorneys can move to seal the information.

About a dozen other courts have decided to file all plea agreements publicly, without any references to cooperation. In those courts, a supplementary document, which is sealed, contains information about the defendant’s cooperation or a statement that no such agreement exists.

Media lawyer Jeffrey Hunt, who successfully urged the U.S. District Court for the District of Utah to adopt a case-by-case approach to sealing plea agreements, said he believes the Justice Department overreacted to concerns about witness intimidation.

“Courts were afraid that whosarat.com would put all this information out there and there would be all kinds of negative consequences, and that just hasn’t been borne out,” Hunt said. “Once courts dug into the issue and gave it a thoughtful examination, they realized the fear had been greatly exaggerated.”

Indeed, the Middle District of Georgia decided over the summer to soften its policy of automatically sealing plea agreements. Now, all plea agreements are open to the public unless the prosecutor or another party makes a motion to seal them and the judge agrees.

Gregory Leonard, the court clerk for the Middle District of Georgia, said that decision squares with the trend toward greater openness that he has seen over the 26 years that he’s been on the job.

“Back in the old days when I was clerk . . . lawyers would ask the court to seal a lot of things just because they prefer them not to be public.” Today, judges are less willing to grant such requests unless there is a strong justification, he said.

However, not all courts are moving toward more openness.

At least three courts have adopted the Justice Department’s request that all plea agreements be removed from PACER: the Northern District of California, the Eastern District of North Carolina and the Southern District of Ohio. In these districts, the public — including the news media — must obtain the information directly from the clerk’s office at the courthouse.

“We think it’s actually a pretty sound policy in the sense that we’re trying to make this information publicly available but at the same time we’re trying to offer some protections to cooperating witnesses,” said James Bonini, clerk for the U.S. District Court in the Southern District of Ohio.

Plea agreements in the Eastern District of North Carolina were freely available on PACER until August 2009.  In a standing order, Chief U.S. District Judge Louise Flanagan explained that “[c]ase by case review would not work because one of the dangers identified by the Court is the use of this information to encourage generalized reprisals against all cooperators.”

Court clerk Dennis Iavarone said the change was endorsed by a committee consisting of the U.S. Attorney’s Office, a senior U.S. District Court judge, the federal public defender and the court clerk. So far, he said, the new policy has not prompted any complaints.

“Anybody can see a plea agreement,” he said. “They just [have] to come down to the courthouse to do so.”

But critics elsewhere note that news organizations don’t always have the resources to send reporters to the federal courthouse — particularly as reporters take on more responsibilities amid staffing cuts.

“As a matter of practice and with newsrooms getting smaller, it’s a tough sell for my boss to say that I need to drive to Wheeling [a three-hour drive] to get a paper copy for my file that might only produce a 12-paragraph story,” said Ward, the Charleston Gazette reporter. 

Ward said that even if the local court six blocks away stopped putting documents online, it would “pose some real problems.” He said that as the policy stands now, if an attorney files a document at 4:58 p.m., he is able to go online and print the document in time to make his deadline.

“If I had to walk the ten minutes to the courthouse, I wouldn’t get there [before the court closed] and wouldn’t be able to make the copies and get back before my deadline,” he said.

In response to Ward’s concerns, the U.S. District Court for the Northern District of West Virginia decided in July to adopt a case-by-case approach for restricting online access to plea agreements.

Ellen Biltz contributed to this story.