The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
I've gotten interested recently in the rules having to do with First Amendment rights of access to court records—I've intervened in one case to unseal a document, and I'm planning to do so in another case, which is sealed in its entirety. Jonathan Manes, who runs the Civil Liberties & Transparency Clinic at SUNY Buffalo law school, has been working on this much more extensively, together with his students; and he was kind enough to let me publish this item, written by his students Laura Gardiner, Andy Plewinski and Amanda S. Wadsworth:
When does the public have the right to know what happens in court? According to the appellate courts: almost always. But the practice on the ground in the nation's trial courts tells a different story.
Take one recent example: In 2013 a Syracuse woman filed a lawsuit against a DEA agent who had created a fake Facebook account using photos taken from her cell phone, which the DEA had earlier seized. The agent used the fake account to impersonate her online, communicating with her contacts under false pretenses. Her lawsuit asked, in essence, whether an official violates the Constitution (or any other law) by impersonating a private citizen online without her consent. The court issued a ruling almost three years ago, apparently finding that tactic may indeed have been illegal. But we have no idea what exactly the court said. Why? The court's opinion is sealed, hidden away from public view—as are all of the other substantive filings in the case. In fact, we don't even know why the case is sealed: the plaintiff's application to restrict public access (and the court's order granting her request) are themselves sealed.
This is no isolated case. Too often, judges draw a curtain of secrecy around court proceedings. For example, courts have given special treatment to politicians, lawyers, celebrities, and other notables, sealing their cases to shield them from unwanted attention. The most egregious example of this was perhaps the Connecticut state court system's decades-long practice of maintaining secret dockets in cases involving the powerful or famous.
According to a press exposé, one Connecticut judge sealed a lawsuit alleging sexual abuse by a Hartford-area priest. The case went to trial in secret. The public only learned that the priest lost when he appealed the verdict against him.
Connecticut judges also regularly sealed divorce and paternity cases that involved fellow judges, prominent lawyers, and public officials (not to mention actors, rock stars, and professional athletes). Of course, this was a privilege not extended to ordinary members of the public. Sometimes, judges even ordered that the very existence of a case be kept secret, so that the public would not even know that a lawsuit had been filed.
When Connecticut's secret dockets were exposed in 2003 it triggered widespread consternation, not to mention a Second Circuit Court decision that found the practice unconstitutional. Yet despite these and other high-profile excesses of judicial secrecy, over-sealing remains a problem.
A 2012 study by the Federal Judicial Center examined a year's worth of sealed cases in federal district courts. It documented hundreds of cases that were sealed in full, often for dubious reasons. (The study did not even attempt to determine how often cases were sealed only in part.) It found workplace sexual harassment cases that were sealed, shielding employers from public accountability. Medical malpractice lawsuits were sealed, protecting doctors from a reputational hit. Commercial disputes were sealed because the businesses involved preferred to avoid disclosure of troublesome facts or allegations.
These overbroad sealing practices are corrosive to public trust in the judiciary. When the public cannot see what the courts are doing, it is impossible to tell whether the courts are exercising their authority properly. The public needs to be able to know how the law is being applied (and developed) by the courts. As Chief Justice Burger famously wrote in Richmond Newspapers v. Virginia, the seminal case establishing the public's constitutional right of access to court proceedings, "People in an open society do not demand infallibility from their institutions, but it is difficult for them to accept what they are prohibited from observing."
Sealed court records also prevent people from learning about matters that may be of profound public concern. Court battles often affect members of the public, not just the parties to the case. The resolution of a supposedly "private" dispute can deeply affect other people's interests. Sometimes, as in the DEA case, the decision announced by the Court can determine other people's rights. Other cases involve individuals who enjoy positions of public trust, prominence, or power, as with the Hartford priest.
For all of these reasons and more, the law recognizes a public right of access to judicial proceedings and records. Nearly four decades ago the Supreme Court held that the First Amendment guarantees the public a strong constitutional right to attend criminal proceedings. In the decades since, nearly every federal circuit court has extended that right of access to civil cases and beyond—and, importantly, to the documents filed in connection with such proceedings. A party seeking to seal court records thus carries a heavy burden of justification in order to overcome the public's right of access.
It's no great mystery why, despite decades of precedent, courts continue to seal records without adequate justification. Trial judges are busy and there is often nobody in the courtroom arguing against secrecy. Appellate holdings protecting the public's right of access do not enforce themselves. Entrenched courtroom practices can be difficult to dislodge. As a result, if you dig into the dockets of any given federal district and you will find court filings, judicial opinions, or entire cases that are hidden from public view for inadequate (or unarticulated) reasons.
That is what we found when we began researching the sealing practices in the Northern District of New York, where the DEA Facebook impersonation case was litigated. When we looked beyond that particular case, we found systemic concerns. For example, the Court's local rules actually require all sealing applications and sealing orders to be sealed, thereby shrouding the scope and justification for secrecy in every case. That rule is inconsistent with the Second Circuit's requirement that there must be public, on-the-record findings explaining why records may be closed, and that the resulting sealing orders should be made public whenever possible. See United States v. Haller, 837 F.2d 84, 87 (2d Cir. 1988).
We also examined almost 30 other cases to get a snapshot of how the Northern District of New York actually handles sealing applications in practice. While in a few cases judges closely followed First Amendment standards before closing public access (or refusing to do so), in many other cases sealing orders were approved without any public justification, or for inadequate reasons. For example, in some cases the court allowed the parties to decide for themselves what should be sealed simply by stamping a document "confidential." Such rulings conflict with the requirement that courts determine, before excluding the public, that "closure is essential to preserve higher values and is narrowly tailored to serve that interest." Lugosch v. Pyramid Co. of Onondaga County, 435 F.3d 110, 119 (2d Cir. 2005) (internal quotation omitted).
Our point is not to criticize a particular court. We surveyed the civil sealing rules in all 94 federal district courts and found that rules vary significantly and often do not adequately protect the public's right of access.
Fortunately, this should be a fixable problem. The Civil Liberties & Transparency Clinic at the University at Buffalo School of Law (of which we are members), the New York Civil Liberties Union, and the Knight First Amendment Institute are working to improve judicial transparency practices by proposing that federal district courts incorporate the standards and procedures that protect public access directly into their local rules. Lawyers look to the local rules to guide their practice; judges likewise consult the local rules to guide their decisionmaking. If the constitutional standards and procedures that restrict sealing are embedded in the local rules, the public's interest in openness is much less likely to be overlooked.
To that end, we jointly developed a model rule on sealing. We submitted it last month to the Northern District of New York as part of a formal proposal to amend that court's rules. We hope that other courts will adopt it too in order to better safeguard the public's interest in judicial transparency.
Important and troubling.