The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Rep. George Santos's Bail Guarantors Are Being Kept Secret
The New York Times asked that their names, and information related to the bail hearing, be released.
Insider (Jacob Shamsian) has the story, and you can read the New York Times' letter motion requesting access to this information. Here's an excerpt from the motion:
The surety records play a significant role in this Court's exercise of its Article III power. The Second Circuit, among other federal appellate courts, has held that the public has a common law right of access to bail hearings. [See, e.g.,] Associated Press v. U.S. Dist. Court for Cent. Dist. of California (9th Cir. 1983) (holding that "pretrial documents, such as those dealing with the question whether [the defendant] should be incarcerated prior to trial … are often important to a full understanding of the way in which the judicial process and the government as a whole are functioning"); United States v. Chagra (5th Cir. 1983) ("Pretrial release proceedings require decisions that attract significant public interest, and invite legitimate and healthy public scrutiny.").
The public interest in openness is particularly strong in this case. The surety records relate to three individuals who have committed large sums of money to ensure that Rep. Santos can remain at liberty, pending further proceedings. This presents an obvious opportunity for political influence, given Rep. Santos's elected position and his dependence on these suretors. {If the suretors are not family members, the surety also may be contrary to Congressional ethics rules. See generally House Ethics Manual (2008).} That risk is further heightened by the fact that the very crimes Rep. Santos has been charged with involve abusing the political process for personal gain.
The public also has an interest in ensuring that Rep. Santos duly appears in court and, thus, an interest in exercising democratic oversight of the effectiveness of the bond. For the bond to be effective, first, the suretors must be individuals with sufficient influence or connection to Rep. Santos that forfeiture of their security would deter him from flight. Second, the amount of the forfeiture must be sufficient that the impact on the suretor would similarly deter flight. And, at the same time, the suretors would need to be free from circumstances that would undermine bail's intended purpose. For example, a suretor who owed sums of money to Rep. Santos potentially would not be appropriate….
[T]he legitimate privacy interests in the surety records appear negligible. The Second Circuit has held that where the privacy of third parties is at issue, courts should consider (1) whether the subject matter is traditionally considered private rather than public; (2) the nature and degree of injury resulting from disclosure; and (3) the reliability of the information contained in the record.
These factors are not a barrier to unsealing. The identity of a suretor is traditionally public. There is no obvious harm that would rise to the level to justify sealing: there is no allegation of wrongdoing by the suretors and there is nothing improper about posting bond for a defendant. And third, the reliability of the information—that certain individuals signed Rep. Santos's bond—is not in question.
For more general background on the constitutional and common-law right of access to court records and court hearings, see the full motion, which is quite readable. I don't know as much about the right of access to criminal records as I do about the right of access to civil records, but the Times' argument strikes me as sound; I'll post an update if Santos's lawyers (or the government's lawyers) file an opposition.
UPDATE: See also this post about a similar controversy in the Samuel Bankman-Fried case.
