Too much secrecy is a challenge to justice

Sunday, December 18, 2005

Because nearly every matter of consequence and controversy in our society eventually winds up in court, Americans have a vital interest in staying informed about how well justice is delivered.

Unfortunately, the judicial system is as susceptible as the other branches of government to reflexive secrecy. The courts are under enormous pressure to keep a vast array of information out of the sight — and thus away from oversight — of ordinary citizens.

In the course of trying criminals and refereeing disputes between private parties, judges at the local, state and federal levels constantly are called on to protect personal safety and privacy. In addition, they worry about revealing national security information, disrupting ongoing law enforcement investigations or exposing corporate secrets.

So they shut the public out in many important ways.

Judges regularly seal confidential information about defendants, plaintiffs, informants, witnesses and jurors. They issue orders muzzling the parties to legal action, they keep information off the public docket and they deny access to discovery material and settlements. They close courtrooms.

It would be reassuring if each decision to hide information were rendered only after due consideration of the citizens’ right of access to information about the government institutions that influence every aspect of their lives. That is not always the case, however, given the pressure on judges to clear dockets and to be responsive to the wishes of the contending parties.

Just how many sealed cases lurk in the bowels of the judicial system is, of course, unknown. Thousands of cases remain beyond public view in state courts, some under secrecy programs long ago obsolete.

Even domestic matters, such as divorce cases, get caught up in the sealing frenzy. The rich and famous and the politically aspiring frequently seek to hide divorce records from public view. Now, corporations whose executives are involved in divorce proceedings are shouldering their way into the courtroom with demands that judges seal information having to do with assets, compensation and other matters.

Ordinary citizens are largely unaware of the extent of court secrecy, but many judges don’t know how pervasive secrecy is in the American judiciary either.

Judicial experts, for example, voiced surprise when the practice of “super-sealing” court cases began coming to light a couple of years ago. One such case involved a person caught up in a terrorism investigation, M.K.B. v. Warden, which got all the way to the Supreme Court without official notice. Another was a drug case, United States v. Fabio Ochoa-Vasquez, which was fully litigated in secret.

The way such cases take place without any sort of public awareness is breathtaking.

If there is a docket entry at all, there is no case number, no parties listed, no facts presented and the names of judges and attorneys are not revealed. The court computer records are altered to hide the case’s existence. Defendants and their attorneys are put under a gag order. Proceedings take place behind closed doors. Even years later, the federal court database contains no clues that justice was rendered and lives altered in secret. Such cases come to public attention only when someone in the system makes a mistake.

Secrecy not only covers up mistakes, it obstructs accountability.

Dan Christensen reported extensively on such cases for the Miami Daily Business Review. The secrecy in the terrorism and drug cases, he wrote, “was put into place without any explicit legal process or criteria established by Congress or the Supreme Court.”

Indeed, both court decisions and court rules recognize that public access to the judicial system flows from common law and the First Amendment. Yet the courts routinely leave those important considerations behind in the heat and pressure of daily business and compelling arguments for sealing and closure.

In addition to those internal considerations, the courts today are subject to an unnerving amount of external concerns. Political officials loudly and loutishly challenge the judiciary’s power as well as its decisions. Judges are removed from cases because of their real or perceived political beliefs. Nominees to the bench are judged on their politics rather than their judicial temperament or constitutional acumen.

For good reason, our judges and the courts they run are highly regarded by Americans. They are respected and trusted. But at a time when all government and private institutions in our society are looked at more critically, that respect and trust can not be taken for granted.

To protect that high regard, judges must work hard to be as transparent as possible in their administrative and policymaking activities as well as courtroom procedures. And they must keep foremost in mind the need for the public to have sufficient information to maintain respect for the courts and their decisions.

We Americans rely on the courts to peacefully and persuasively resolve our political, cultural and constitutional differences. To do so credibly, the courts must be above the fray and above reproach. And to do that, they must strive to be more open, not less.

Paul K. McMasters is First Amendment ombudsman at the First Amendment Center, 1101 Wilson Blvd., Arlington, Va. 22209. E-mail:

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