Fighting for access

One reporter can make a difference

By Ellen Biltz

Ken Ward Jr. won a battle over the summer to get the U.S. District Court for the Northern District of West Virginia to change its policy on withholding plea agreements from the public.

“The press is supposed to play a role in informing the public, and we couldn’t do that,” said Ward, a reporter at the state’s largest daily newspaper, the Charleston Gazette.

The court had created a policy, enacted last November, to keep all plea agreements out of the public record in response to concerns over websites that called attention to “rats” or people who cooperate with authorities and strike plea deals.

In February, Ward broke an in-depth story about a mining foreman who was cutting corners on safety precautions and misreporting his safety evaluations, a felony. At the time, the foreman’s attorney told Ward that his client was cooperating with police and exposing the many others within the mining company involved in the safety scandal.

If ever there was a time when a defendant’s cooperation was out in the open, it was this one, Ward said. The plea agreement was read aloud in open court and reiterated what Ward already knew of the case.

But despite that, the clerk’s office refused to turn over a written copy of the agreement to Ward, much less post it online as most courts do.

“They just said that was the court’s policy,” he said.

So he fought back. And now, sixth months after Ward hit a roadblock, the secrecy has been replaced with openness.

After jumping through hoops at the clerk’s office and going up the ladder of federal judges in the district trying to find out what exactly the policy even said and who enacted it, he finally got to talk to Chief Judge Preston Bailey, who asked Ward to write a letter, detailing his concerns and suggesting a solution.

In the March 30, 2010 letter Ward wrote, “I hope you will carefully reconsider your district’s new policy and adopt policies and procedures that make plea agreements available to the public except in circumstances where judges make specific findings that explain why the presumption of access has been overcome.”

Ward didn’t get a response from Bailey for months. But at the beginning of July, he said got a phone call from the judge, telling him the policy was being changed and records would be presumptively open. Bailey was very receptive to his concerns, Ward said.

An e-mail sent July 9 from the court to attorneys practicing in the district, wrote, “Beginning July 12, 2010, all plea agreements and related filings will be filed as public documents and available via [the online system], unless sealed by Order of the Court. Restrictions on plea agreements and related filings from November 1, 2009 to July 9, 2010 will be removed allowing the public to view the documents.”

Ward said he wasn’t aware of any other reporters who complained to the court about the process, but he felt it was important to fight for openness.

The new policy puts the district in good company, with the majority of the 94 district courts choosing a similar route: a case by case evaluation when there’s a motion to seal a plea agreement.

And Ward said he considers the new policy a battle won, as long as it’s carried out in practice as it appears on paper.

“Now that it’s enacted, we’ll see how it’s implemented,” he said.