The Volokh Conspiracy
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D.C. Circuit Workplace Survey Leaked, And Investigation of Leaked Survey Is Leaked
The federal courts are in trouble if confidential material cannot remain confidential.
Recently, the D.C. Circuit performed a confidential workplace survey. And, somehow, that report leaked to Ann Marimow of the Washington Post.
In the survey, a copy of which was obtained by The Washington Post, and in related interviews, current and former courthouse employees who acknowledged having witnessed misconduct described their reluctance to file formal complaints against their superiors. They cited fears of retaliation and distrust that the federal judiciary's system for workplace accountability, which tasks judges with policing one another, ultimately would resolve their concerns.
Granted, a leaked appellate court workplace survey is not on the same order of magnitude as a draft Supreme Court opinion. The D.C. Circuit is, after all, an inferior court. But this episode further illustrates a dangerous trend in which confidentiality of the courts is breached.
One would hope that this public leak would create a sense of urgency at the D.C. Circuit to keep things quiet. Nope.
Today, the Washington Post reported on another leak!
Srinivasan said Thursday that leaders of the U.S. District Court and U.S. Court of Appeals for the D.C. Circuit initiated the survey last year to "better understand our employees' workplace experiences, and employees who completed the survey did so on the understanding that their responses would be used only for that purpose and kept confidential."
"The leak of a confidential document compiling the responses was a serious breach of that understanding and must be investigated," he said in a statement. Srinivasan did not respond to questions seeking further details about the inquiry.
The sourcing here is not clear, but it seems that Marimow has information from one of Judge Srinivasan's colleagues. I take it someone forwarded her Sri's email. Who was it? Presumably not KBJ, who is onwards and upwards.
Regrettably, there is precedent for such a leak. Marimow links to my post about the leak of then-Judge Thomas's opinion in 1991.
The D.C. Circuit's plan to investigate how the survey was leaked is unusual but not without precedent. In 1992, a D.C. Circuit judge urged his colleagues to initiate a similar probe to identify the source for a news article detailing the position that then-Supreme Court nominee Clarence Thomas had taken in a draft opinion for a controversial affirmative action case. An investigation was never conducted.
I've since learned a bit more about that episode. It is true that no investigation was ever conducted. Why? At the time, there was no clear rule that prohibited leaking confidential information. One would think this prohibition is self-evident, but investigating someone for violating a non-existent rule is problematic. In the wake of this leak, the D.C. Circuit's internal operating procedures were amended to make it a clear that revealing confidential information was prohibited. As far as I know, that IOP is still on the books. So whoever leaked the report to the press may be in violation of that rule.
Update: Aaron Nielson writes more about the D.C. Circuit leak from 1991.
