Trans­parency fad­ing with sealed court records

Antelope Valley Press - - OPINION -

It used to be that when a re­porter ob­tained court doc­u­ments, they could pretty much guar­an­tee they’d find a de­cent amount of in­for­ma­tion on a par­tic­u­lar case, how­ever, times seem to be chang­ing.

Record trans­parency seems to be slowly fad­ing away and some in the news­pa­per busi­ness have taken no­tice.

“The Na­tional News­pa­per As­so­ci­a­tion joined the Re­porters Com­mit­tee for Free­dom of the Press, Na­tional Pub­lic Ra­dio and other me­dia or­ga­ni­za­tions to urge the U.S. Supreme Court to put tighter lim­its on sealed court records,” an ar­ti­cle in the Pub­lisher’s Aux­il­iary news­pa­per said.

The or­ga­ni­za­tions pointed out a dra­matic in­crease in the Court ap­prov­ing re­quests to seal doc­u­ments. Ac­cord­ing to the ar­ti­cle, the av­er­age seal­ings rose from 22 in 2011, to 46 in 2018. While this may not seem like a huge is­sue, when it comes to trans­parency, it cer­tainly is.

Ac­cord­ing to the ar­ti­cle, sealed records were rare in the 20th Cen­tury, and in­creased in the first part of the 21st Cen­tury, av­er­ag­ing about 10 per year.

“The (or­ga­ni­za­tions) ac­knowl­edge that com­pelling, coun­ter­vail­ing in­ter­ests — sup­ported by on-the-record find­ings — some­times ne­ces­si­tate seal­ing,” the ar­ti­cle states. “But a re­view of re­cent seal­ing mo­tions filed with the Court sug­gests that the in­crease in seal­ing is not tied to any con­comi­tant in­crease in cases in which seal­ing may be war­ranted. Rather, mo­tions to seal filed by prac­ti­tion­ers of­ten pro­vide no jus­ti­fi­ca­tion for the re­quested se­crecy other than that por­tions of the case file were sealed be­low.”

So in other words, just be­cause a file gets sealed, it doesn’t nec­es­sar­ily mean there’s a valid rea­son for it. It is ef­fec­tive in lim­it­ing the in­for­ma­tion the pub­lic (and me­dia) can get on the case, how­ever.

Some records in cap­i­tal cases have been sealed, which had led to NPR (Na­tional Pub­lic Ra­dio) and the Re­porters Com­mit­tee’s in­ter­ven­tion in in­di­vid­ual cases, in the past, to urge the open­ing of those records.

“There is a strong, laud­able tra­di­tion of pub­lic ac­cess to the Court’s pro­ceed­ings and the records,” the groups said in let­ter. “You have ap­pro­pri­ately re­ferred to the ju­di­cial branch as ‘the most trans­par­ent branch in gov­ern­ment.’ Your pre­de­ces­sor, Chief Jus­tice Wil­liam Rehn­quist, wrote that ‘all of the busi­ness of the Supreme Court of the United States comes in the front door and leaves by the same door.’”

They said that adopt­ing a Supreme Court rule ad­dress­ing the seal­ing of files, would be con­sis­tent with, and demon­strate to the pub­lic, the Court’s on­go­ing com­mit­ment to those long-held ideals.

In ad­di­tion, the let­ter pro­posed a new court rule that would re­quire pe­ti­tion­ers to pro­vide and iden­tify a com­pelling rea­son to be fur­thered by seal­ing the files, demon­strate that the re­quest is nar­row and state the time pe­riod for the seal­ing, to name just a few things.

“RCFP and NPR has pre­vi­ously re­quested a new rule, but the Court said that a gen­eral fed­eral pol­icy dis­cour­ag­ing doc­u­ment seal­ing by fed­eral courts was ex­pected to de­ter a rise in such re­quests,” ac­cord­ing to the ar­ti­cle.

How­ever, the or­ga­ni­za­tions as­sert that has not been the case.

“We urge the court to ac­cept the me­dia or­ga­ni­za­tions’ rec­om­men­da­tion to crack down on an epidemic of se­cret court fil­ings,” Na­tional News­pa­per As­so­ci­a­tion Pres­i­dent Matthew Adel­man said in the ar­ti­cle. “The tra­di­tions of the First Amend­ment re­quire greater dis­ci­pline in this area.”

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