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News & trends
February 2008 | Volume 44, Issue 2

Court policies on sealed and secret information diverge

Allison Torres Burtka, Associate Editor

A wealth of case information—dockets, orders, oral arguments, opinions—is immediately available online with the click of a mouse. Still, some courts keep their cases and records completely hidden from public view—and this is cause for concern, say advocates of open courts.

After media reports last year revealed that cases in Florida were being “supersealed”—so that the case appeared not to exist at all, rather than simply being marked “sealed”—the state supreme court amended procedures on sealing cases, but critics say the problem persists.

Some federal courts seem to be moving toward more openness, but the Eleventh Circuit recently reaffirmed its policy of keeping oral argument transcripts and recordings secret.

The problem of hidden cases in Florida remained largely under the radar until news media broke the story. In April, the Florida Supreme Court adopted amendments—on an interim, emergency basis—to procedures for sealing court records in civil cases. The court noted that the news reports “identified practices that, however unintentional, were clearly offensive to the spirit of laws and rules that ultimately rest on Florida’s well-established public policy of government in the sunshine.”

The amendments include procedures requiring a public hearing to be held on any contested sealing motion and a provision prohibiting courts from making a case number or docket number confidential. The court noted that “the removal from public view of all information acknowledging the existence of a case is expressly not allowed.” (In re Amendments to Florida Rule of Judicial Administration 2.420—Sealing of Court Records and Dockets, 954 So. 2d 16 (Fla. 2007).)

Gary Fox, a Miami lawyer and chair of the Florida Bar’s Rules of Judicial Administration Committee (which proposed the changes), said the new rules strike a balance between the public’s right of access to the courts and litigants’ right not to have private information made public. “Justice is better served if people know what’s going on,” he said, adding that when information is hidden, “public confidence in the judiciary is undermined.”

However, the Miami Herald reported in October that some Florida judges were not following the new rules: Of 16 sealing orders issued in Broward and Miami-Dade counties in the six months after the amendments were adopted, 12 did not comply. (Playing Favorites with Court Records, Miami Herald 20A (Oct. 17, 2007).)

Secret dockets have become a problem in federal courts as well. Last March, the Judicial Conference of the United States “strongly urged” all federal district courts with electronic dockets to indicate clearly when cases are sealed by marking them “case under seal” rather than “case does not exist.”

“Federal judges are astonished to find this problem is as big as it is,” said Lucy Dalglish, executive director of the Reporters Committee for Freedom of the Press in Arlington, Virginia. She added that, in general, there has been “much greater secrecy” in courts recently.

Greg Beck, a lawyer with Public Citizen Litigation Group in Washington, D.C., noted that although “the interests of the litigants are often aligned in secrecy,” lawyers want to observe cases that are directly relevant to theirs, and denying public access closes off parts of the judicial process. Public Citizen and the Reporters Committee argue that improperly sealed records violate the public’s First Amendment right of access to court records.

In March, the Judicial Conference endorsed a pilot project in which several courts make audio recordings of their courtroom proceedings publicly available through the federal Public Access to Court Electronic Records (PACER) system. In September, the conference voted to make transcripts of federal district and bankruptcy court proceedings available online through PACER.

But not all courts are following suit. The Eleventh Circuit does not allow public access to its oral argument recordings or transcripts, and at least one lower-court judge has been frustrated by that policy. (Howard J. Bashman, At 11th Circuit, What Happens at Oral Argument Stays at Oral Argument, Law.com, Sept. 4, 2007.)

After the Eleventh Circuit vacated and remanded a sentencing decision that District Judge Gregory Presnell had made, he requested a transcript from the court. He wrote in a footnote to an order, “It is difficult to understand how or why the court of appeals concluded that the sentencing rationale I set out was mere subterfuge. I thought perhaps something was said during oral argument on appeal that influenced the panel’s judgment. So I requested a copy of the transcript from the court of appeals. My request was denied.” (United States v. Williams, 481 F. Supp. 2d 1298 (M.D. Fla. 2007).)

The court’s rules state: “Oral argument is recorded for exclusive use of the court. Neither the recording nor a transcript thereof will be made available to counsel or the parties. With advance approval of the court, however, counsel may arrange and pay for a qualified court reporter to be present to record and transcribe the oral argument for counsel’s personal use. Recording of court proceedings by anyone other than the court is prohibited.” Last fall, the court considered amending that rule to add that it would provide recordings to the U.S. Supreme Court if requested, but it opted not to amend the rule.

This policy contrasts sharply with those of the Seventh, Eighth, Ninth, and Federal circuits, which provide audio files of oral arguments online. The Supreme Court posts oral argument transcripts on its Web site. Some state supreme courts, such as those of New Jersey and Ohio, even provide live video of oral arguments on their Web sites.

“If a reporter can attend an oral argument, what justification is there for keeping the transcript secret?” Fox asked.

Jeff White, senior amicus counsel at the Center for Constitutional Litigation in Washington, D.C., noted that lawyers often are interested in the questions judges ask at oral argument.

“If my case presents issues of preemption, punitive damages, expert testimony, or a host of other controversial questions, I would like to know the kinds of concerns Judge X has expressed so I can address them both in briefing and oral argument,” he said.

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