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In response to Reporters Committee letter, US Supreme Court says it plans to issue new rule on sealing records

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  1. Court Access
In a December letter, RCFP highlighted a “marked increase in secrecy” at the Supreme Court since the 1990s.
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Update (Oct. 7, 2020): On Oct. 7, Reporters Committee Executive Director Bruce Brown sent a follow-up letter to U.S. Supreme Court Clerk Scott S. Harris strongly encouraging the Court to adopt a rule that does not permit parties to file documents under seal automatically, simply because a lower court allowed it. The letter attached a proposed rule for the Court to review.

In response to a letter from the Reporters Committee, National Public Radio and 51 media organizations, the U.S. Supreme Court says it is evaluating its practices for sealing court records and plans to issue a new rule on the matter in the near future.

The media coalition’s December 2019 letter raised concerns about the sharp increase in filings sealed by the Supreme Court and urged the Court to adopt a rule that would recognize the presumption of public access and clarify when court filings may be sealed. This would help protect the public’s right to access court proceedings and records.

In a Sept. 3 letter to Reporters Committee Executive Director Bruce Brown, Supreme Court Clerk Scott S. Harris thanked the media coalition for bringing the issue to the Court’s attention. He noted that, “in the great majority of instances,” the Court authorizes record sealing when records have already been sealed by a lower court, often because sealing is required by statute or for privacy interests.

“Nevertheless, we have given careful consideration to the issue and agree with your view that there could well be a benefit to reducing our sealing procedures and practices to a formal rule,” Harris wrote. “We will evaluate the issue further and expect to issue a new rule in the near future.”

“We’re pleased that the Supreme Court agreed with our letter and has decided to adopt a formal standard for when filings can be sealed,” said Sarah Matthews, staff attorney for the Reporters Committee for Freedom of the Press. “This is not only a positive step toward protecting the press and public’s right to access court records and proceedings, but also toward helping people better understand the important work of our nation’s highest court. We continue to urge the Court to ensure that its final rule is clear that there is a general presumption of access to records and proceedings, that only compelling reasons can justify sealing, and that any sealing must be narrowly tailored.”

In its December letter, the media coalition revealed that the court granted requests to shield records from the public in 46 cases during its 2018 term — by far the highest annual total over a 30-year period in which the court has allowed an increasing number of secret filings.

Click to see an interactive chart showing sealing and caseload at the U.S. Supreme Court from 1990 to 2018.

“Although sealing may be warranted in certain cases, this recent marked increase in secrecy is concerning to members of the press who rely on access to the Court’s records to inform the public about the important work of the Court,” the letter stated. “It is also at odds with the Court’s long-standing commitment to openness and the First Amendment.”

The Reporters Committee previously asked the Clerk of the Supreme Court to adopt a standard addressing the sealing of court records in 2011. But the Clerk ultimately denied the proposal.

The Reporters Committee regularly files friend-of-the-court briefs and its attorneys represent journalists and news organizations pro bono in court cases that involve First Amendment freedoms, the newsgathering rights of journalists and access to public information. Stay up-to-date on our work by signing up for our monthly newsletter and following us on Twitter or Instagram.

Photo by Jarek Tuszyński

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