Free Speech

"The Presumption of Openness [of Court Records] Is Law 101"

“But increasingly, courts are sealing documents in run-of-the-mill cases where the parties simply prefer to keep things under wraps.”

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From Le v. Exeter Finance Corp., decided Friday by the Fifth Circuit, in an opinion by Judge Don R. Willett joined by Judge Jennifer Walker Elrod:

Having decided the substantive issues [in this executive employment dispute], we hasten to add a peripheral-yet-essential point: Judicial records are public records. And public records, by definition, presume public access.

In this case, the district court granted an agreed protective order, authorizing the sealing, in perpetuity, of any documents that the parties themselves labeled confidential. Result: nearly three-quarters of the record—3,202 of 4,391 pages—is hidden from public view, for no discernable reason other than both parties wanted it that way.

The public deserves better. The presumption of openness is Law 101: "The public's right of access to judicial records is a fundamental element of the rule of law." Openness is also Civics 101. The Constitution's first three words make clear that ultimate sovereignty is wielded not by government but by the governed. And because "We the People" are not meant to be bystanders, the default expectation is transparency—that what happens in the halls of government happens in public view. Americans cannot keep a watchful eye, either in capitols or in courthouses, if they are wearing blindfolds.

"Providing public access to judicial records is the duty and responsibility of the Judicial Branch." Why is this important? Because accessibility enhances legitimacy, the assurance that things are on the level. Article III courts are independent, and it is "particularly because they are independent" that the access presumption is so vital—it gives the federal judiciary "a measure of accountability," in turn giving the public "confidence in the administration of justice."19 Put simply, protecting the public's right of access is "important to maintaining the integrity and legitimacy of an independent Judicial Branch." And hopefully, more access to judicial records means more trust in judicial officers and more respect for judicial orders.

Judicial records belong to the American people; they are public, not private, documents. Certainly, some cases involve sensitive information that, if disclosed, could endanger lives or threaten national security. But increasingly, courts are sealing documents in run-of-the-mill cases where the parties simply prefer to keep things under wraps.

This is such a case. The secrecy is consensual, and neither party frets that 73 percent of the record is sealed. But we do, for three reasons. First, courts are duty-bound to protect public access to judicial proceedings and records. Second, that duty is easy to overlook in stipulated sealings like this one, where the parties agree, the busy district court accommodates, and nobody is left in the courtroom to question whether the decision satisfied the substantive requirements. Third, this case is not unique, but consistent with the growing practice of parties agreeing to private discovery and presuming that whatever satisfies the lenient protective-order standard will necessarily satisfy the stringent sealing-order standard. Below, we review the interests at stake and the exacting standard for sealing that protects those interests. Then, we explain the concerns raised by the sealings in this case….

[J]udges must protect public accessibility for three mutually reinforcing reasons: (1) the public has a right to monitor the exercise of judicial authority; (2) judges are "the primary representative[s] of the public interest in the judicial process"; and (3) the judiciary's institutional legitimacy depends on public trust. Public trust cannot coexist with a system wherein "important judicial decisions are made behind closed doors" and, worse, private litigants do the closing.

In our view, courts should be ungenerous with their discretion to seal judicial records, which plays out in two legal standards relevant here. The first standard, requiring only "good cause," applies to protective orders sealing documents produced in discovery. The second standard, a stricter balancing test, applies "[o]nce a document is filed on the public record"—when a document "becomes a 'judicial record.'" Under both standards, the working presumption is that judicial records should not be sealed. That must be the default because the opposite would be unworkable: "With automatic sealing, the public may never know a document has been filed that might be of interest."

True, even under the stricter balancing standard, litigants sometimes have good reasons to file documents (or portions of them) under seal, such as protecting trade secrets or the identities of confidential informants. But "[m]ost litigants have no incentive to protect the public's right of access." That's why "judges, not litigants" must undertake a case-by-case, "document-by-document," "line-by-line" balancing of "the public's common law right of access against the interests favoring nondisclosure." Sealings must be explained at "a level of detail that will allow for this Court's review." And a court abuses its discretion if it "ma[kes] no mention of the presumption in favor of the public's access to judicial records" and fails to "articulate any reasons that would support sealing."

Here, there is no separate sealing order at all. There is only the protective order entered for purposes of "discovery in this matter." That order granted the parties wide latitude to designate "Confidential" any information they believed in good faith was "not generally known" and would ordinarily be revealed in confidence or not at all. In addition, if confidential information appeared "in any affidavits, briefs, memoranda of law or other papers filed in court in this action," the entire document was filed under seal. {Practically speaking, this provision of the parties' agreed protective order doubles as the court's sealing order. It authorizes sealing for "all documents and all transcripts of deposition testimony," labeled confidential "in whole or in part," "including all pleadings, deposition transcripts, exhibits, discovery responses or memoranda purporting to reproduce or paraphrase such information."} Not only that, the order "survive[s] the final termination of this action." In other words, the parties decided unilaterally what judicial records to keep secret, and their decision was permanent; once sealed, the records would stay that way.

And because there is no sealing order, there is no sealing analysis—no reasons given, no authorities cited, no document-by-document inquiry. Instead, the parties wielded nigh-boundless discretion to label things confidential. And again, the secrecy they granted is "perpetual" and "wholesale." Perhaps most disquieting, documents marked confidential provided the basis for summary judgment—a dispositive order adjudicating the litigants' substantive rights (essentially a substitute for trial)—yet there was "no mention of the presumption in favor of the public's access to judicial records." There was no grappling with public and private interests, no consideration of less drastic alternatives. There was no assurance that the extent of sealing was congruent to the need.

At the discovery stage, when parties are exchanging information, a stipulated protective order under Rule 26(c) may well be proper. Party-agreed secrecy has its place—for example, honoring legitimate privacy interests and facilitating the efficient exchange of information. But at the adjudicative stage, when materials enter the court record, the standard for shielding records from public view is far more arduous. This conflation error—equating the standard for keeping unfiled discovery confidential with the standard for placing filed materials under seal—is a common one and one that over-privileges secrecy and devalues transparency.

Given the judiciary's solemn duty to promote judicial transparency, we must be alert to conflation errors (extending protective-order standards to material filed with the court). The secrecy of judicial records, including stipulated secrecy, must be justified and weighed against the presumption of openness that can be rebutted only by compelling countervailing interests favoring nondisclosure. All too often, judicial records are sealed without any showing that secrecy is warranted or why the public's presumptive right of access is subordinated. This mistake harms the public interest, however interested the public is likely to be.

Sealings are no less rampant in low-profile cases (like this one) than in high-profile cases featured on the front page (like Bill Cosby's deposition testimony) or the Oscars stage (like records detailing the cover-up of child sexual abuse, as depicted in 2016 Best Picture Winner Spotlight). And a steady flow of unjustified low-profile sealings is capable of far greater damage—a gradual, sub silentio erosion of public access to the judiciary, erosion that occurs with such drop-by-drop gentleness as to be imperceptible….

The Judicial Branch belongs to the American people. And our processes should facilitate public scrutiny rather than frustrate it. Excessive secrecy—particularly displacing the high bar for sealing orders with the low bar for protective orders—undercuts the public's right of access and thus undermines the public's faith in our justice system.

Legal arguments, and the documents underlying them, belong in the public domain. American courts are not private tribunals summoned to resolve disputes confidentially at taxpayer expense. When it comes to protecting the right of access, the judge is the public interest's principal champion. And when the parties are mutually interested in secrecy, the judge is its only champion.

To be sure, entrenched litigation practices harden over time, including overbroad sealing practices that shield judicial records from public view for unconvincing (or unarticulated) reasons. Such stipulated sealings are not uncommon. But they are often unjustified. With great respect, we urge litigants and our judicial colleagues to zealously guard the public's right of access to judicial records—their judicial records—so "that justice may not be done in a corner."

UPDATE: I originally wrote that Judge Carolyn Dineen King joined the opinion, but it turns out (see footnote 1) that she only concurred in the judgment. Thanks to The Turtle Dove for pointing this out.

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  1. Sure a shame that Willet never got to the Supreme Court.

  2. Why does the public have a right to view court records? Whether a person loses or wins in court, their reputation and livelihood can be ruined by the publicity the media takes advantage of and sensationalizes. People’s lives should not be able to be ruined just because they are involved in the criminal justice system. In my opinion, all court records should be sealed unless both parties agree to them being made public. Obviously that won’t happen, though.

    1. The Judicial Branch does belong to the people, but the individual cases decided do not belong to the people. An average citizen has not reason to know the outcome of a court case that does not affect them.

      1. They damned well do. Your elitist attitude has been noted.

        1. I am just wondering how insulting me furthers your argument. Refuting an argument by insulting someone only serves to discredit the arguer.

      2. Without openness the public has no way to determine that a case was decided according to law and not the whim of the presiding judge or worse. Granted, few cases actually garner the necessary scrutiny to show otherwise but the mere threat of examination should generally be enough.

      3. R v Sussex Justices, ex parte McCarthy

        R v Sussex Justices, ex parte McCarthy ([1924] 1 KB 256, [1923] All ER Rep 233) is a leading English case on the impartiality and recusal of judges. It is famous for its precedence in establishing the principle that the mere appearance of bias is sufficient to overturn a judicial decision. It also brought into common parlance the oft-quoted aphorism “Not only must Justice be done; it must also be seen to be done.”[1]

        1. I don’t think that holding means what you think it means.

    2. Because (IANAL) the public is the ultimate enforcer of verdicts and what passes for justice, regardless of how important lawyers think they are. We are not peasants to meekly bow our heads and accept verdicts unthinkingly. Expecting the legal record to be kept secret from dirty dumb peasants is just now how it works.

    3. Let’s ignore the multitudes of issues excessive sealed court documents bring, such as the Church scandals, corporate malfeasance, etc … for a moment.

      How would this even work? Judicial process is based on precedent, past cases, and often the more recent the case the more valuable it is for precedent! You can’t exactly look to the judicial record if most of the record is sealed, so what exactly should decisions be based on?

      Even at the appellate level, facts of the case matter. Even (though the court loves to deny it!) at the Supreme Court. Without access to those facts people are left in the dark as to why certain decisions were made.

      1. I didn’t even think of that but you bring up a great point. I just have a hard time with the way teh public, in some cases, will convict a person and ruin their life without them ever having been convicted of anything. Maybe they didn’t do it and they are being dragged through the mud for no reason.

        1. “I just have a hard time with the way teh public, in some cases, will convict a person and ruin their life without them ever having been convicted of anything. ”

          Consider the possibility that secret (under seal) proceedings might actually make that worse because there’s no public decision to potentially clear their name so the public is stuck with what ever allegations were made by the other side in press releases.

          “Not only must Justice be done; it must also be seen to be done.”

  3. If there was a mutual desire between the parties to keep most of this stuff hush-hush, they should have used private arbitration with jams, AAA, or any number of other seedy outfits. It is not cheap, but neither is privacy.

    Any sort of consumer adhesion contract allows either party to elect mandatory private arbitration, to the exclusion of any court. Companies like it because it eliminates class actions, but it also keeps everything super secret, so companies can keep doing the same stuff that makes more money, even if they’ve lost a few arbitration cases about that same issue – because nobody knows about any of it. Or, those that do can’t say anything.

  4. In many other fields, there are standards of performance. They are enforced.

    For example, pilots must do periodic retraining, to demonstrate needed skills in specific areas, and must perform check rides. Ditto for operators of nuclear power plants. Ditto for truck drivers. That doesn’t seem to apply to judges, prosecutors, or many non-military government jobs. True, they can be disbarred in extreme cases, but mostly they are free to continue regardless of competence.

    Shielding anyone in any field from being fired for incompetence is bad policy.

  5. Quite the speech.

    NB: King, J. didn’t join the opinion.

    Mr. D.

    1. Whoops, thanks, fixed!

  6. “the judiciary’s solemn duty…” I don’t know whether to laugh or to cry.

  7. Part of my practice involved proceedings before the Interstate Commerce Commission, and later it’s successor the Surface Transportation Board. These were cases involving railroad mergers, line extensions, complaints about alleged anticompetitive conduct, etc. The parties were competing (or allegedly competing) railroads, rail customers, competitors of rail customers, local communities, environmental groups, etc. After the Staggers Act (1980, as I recall), information about the rates charged by railroads under customer contracts became confidential. Yet in particular cases that information was very relevant.
    The ICC/STB solution was to require parties to designate information as either “Highly Confidential (HC)”, “Confidential (C)”, or “Public”. HC material could only be seen by OUTSIDE counsel and consultants, who executed an agreement not to disclose the information except to other outside counsel and consultants for that client. C material could be seen by a limited group of company officials and others who executed an agreement not to disclose the information to those involved in marketing the goods and services. Public information could be disclosed to anyone. Written testimony had to follow the same rules, and so did the briefs.
    So the public only got to see a portion of the facts, and hence only a portion of the arguments about how the “public interest” regulations were working. The ICC/STB’s decisions were public (generally — there may have been exceptions), but they were not supposed to disclose highly confidential or confidential information, unless they decided that the public interest required it.
    It seems to me that in regular civil litigation it would be feasible to distinguish between material that legitimately ought to be kept secret, and the rest of the facts that may make someone uncomfortable.

  8. For what it is worth, I have been told (by court personnel) that court records in Massachusetts are *not* public, but may be released at the discretion of the Clerk Magistrate. As a reporter, over a decade ago now, I also encountered a judge keeping a file in his chambers so as to preclude public access to it. (The judge was also adjunct UM faculty, in a case not only involving a UM student, but one where the faculty had formally taken a side — it was a much larger story and one in which the public very much had an interest in knowing….)

    I’ve also ran into a situation where stuff within the court files was sealed — literally in brown envelopes. That involved a case where a student had given birth in the bathroom and then threw her (living) baby out in the trash, with him suffocating in a plastic bag. I’d already been told what was in that envelope and it absolutely was newsworthy but the public never got to learn just how incompetently UMass handled that situation.

    And then there are the settlements with nondisclosure agreements on the civil suits, which is how universities get away with doing some of the reprehensible things they do. Lawsuits get filed — and then disappear, making it virtually impossible to criticize policies & practices which are, IMHO, clearly unconstitutional. (“Sentence now, verdict later” comes to immediate mind…)

    All I know is that I couldn’t always get some of the juicy stuff that I wanted. Maybe people were violating the law (and I did win a couple of public records challenges against UMass itself), maybe they weren’t, maybe this got changed in the recent amendments to the Sunshine Act (although I can’t find any reference to it) — all I can say is it happened and that I am not fabricating it.

    1. No you haven’t, no you didn’t, no you haven’t, no it didn’t, no you hadn’t.

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