Transparency fading with sealed court records
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.”