The Minneapolis Star Tribune reported Feb. 14, 2008 that 83 of 3,000 federal criminal cases filed in Minnesota from January 1998 through 2007 remained sealed. The Star Tribune said terrorism, increased Internet access to court records, and a Web site that publishes the names of government informants have caused authorities to be more cautious about access to sensitive criminal case files.

When a case is under seal, only its case number is public. Names, charges, and any other details are kept secret. According to the Star Tribune, federal appeals courts in the 2nd, 9th, and 11th circuits – none of which include Minnesota – have found that secret court dockets may violate either the constitutional protections of the press, the right to a public trial, or both. According to the Reporters Committee for Freedom of the Press, “secret dockets threaten the First Amendment rights of the public and press to monitor the judiciary and follow cases in courtrooms across the country.” A complete report, published in 2003, is available at http://www.rcfp.org/secretjustice/secretdockets/index.html.

According to the Star Tribune, Chief U.S. District Court Judge James Rosenbaum, said judges in the Minnesota district are “committed to full public access,” but in some cases, such as those dealing with juvenile records, fugitives, or informants, they are required to seal the case file.

The Star Tribune reported that it asked Assistant U.S. Attorney Jeffrey Paulsen, head of the criminal division in Minnesota, to review 64 case files sealed since Sept. 11, 2001, which remained under seal in mid-December 2007. Although Paulsen would not comment on whether any of the cases he reviewed involved terrorism, he said about one third of the cases involved juveniles, and eight of them involved fugitives, cases which are generally not unsealed until the fugitive is caught. The Star Tribune reported February 14 that six of the 64 cases Paulsen reviewed had been unsealed after he was interviewed because fugitives had been captured.

The Star Tribune also reported that shortly after its investigation, “prosecutors moved quietly to unseal several cases,” which the newspaper said “rais[ed] questions of whether some had remained secret by default.”

The newspaper cited two cases, both drug-related, in which the defendants had been convicted and sentenced to prison but whose case files had remained sealed. One woman had been sentenced to more than five years in prison on Nov. 28, 2006, but the case remained secret until Dec. 26, 2007, which the Star Tribune said was one week after it gave the U.S. district attorney’s office its list of sealed cases. Another man was sentenced on June 3, 2003 to 21 months in prison and five years of supervised release, but his case had remained sealed until Feb. 13, 2008, one day before the Star Tribune published its story.

The Star Tribune also reported that Paulsen said the safety of informants can play a role in keeping a case file secret, sometimes even after a defendant is sentenced. “What we’re talking about mainly is people who are out on the street cooperating,” he said. “In some cases, the risk to someone might never go away.”

The Star Tribune said Paulsen cited initiatives to publish dockets and court records online as heightening security concerns because of organized efforts to expose informants. For example, Who’s a Rat, found at http://www.whosarat.com/, is a Web site whose paying members can log in to post and view profiles of informants and government agents.

Sean Bucci, a Boston disc jockey, created Who’s a Rat in 2004 while awaiting trial in a marijuana conspiracy case, the Star Tribune reported. The Web site says it has profiles of more than 4,500 informants and 437 government agents.

The Star Tribune said Paulsen considered such resources a concern. “None of us wants to see a defendant get hurt or killed,” Paulsen said.

But Paulsen told the newspaper that his office would consider whether changes are needed to ensure periodic reviews of sealed cases.

If the U.S. District Attorney for the District of Minnesota were to consider a rule change or clarification based on the Star Tribune’s report, it would not be the first time such a report helped lead officials to make such a change. Last year, during a year-long investigative series by The Seattle Times on the vast number of civil, guardianship, and divorce case files under seal in Western Washington, state and local federal courts adopted rule changes. The newspaper reported in March 2006 that Seattle’s King County Superior Court had approved sealing entire files on nearly 2,000 such cases since 1990.

The Washington Supreme Court amended its rules in fall 2006 to say that parties’ desires for files to be sealed do not, by themselves, constitute a compelling reason for a court to seal a file. The U.S. District Court for the Western District of Washington changed its rules to require a judge’s permission before a lawyer can file a pleading under seal.

Additionally, The Seattle Times reported that King County judges and commissioners now receive extensive training on sealing restrictions. Old, outdated and inaccurate forms had also been discovered and updated, and the power to seal records was taken away from substitute court commissioners. (For the complete story, see “Washington State Courts Reopen Sealed Records” in the Winter 2007 issue of the Silha Bulletin.)

Investigative reporting by a newspaper in Las Vegas helped encourage the Nevada state Supreme Court to consider and eventually pass new rules on sealing civil court records that took effect Jan. 1, 2008, the Las Vegas Review-Journal reported.

A Feb. 11, 2007 report by the Journal-Review revealed that at least 115 civil cases had been completely sealed since the year 2000 in district courts in Las Vegas’ Clark County, and said that anecdotally, Las Vegas attorneys said the practice had become more common in recent years.

The report led to an inquiry by the state legislature later in 2007, the Journal-Review reported on Jan. 1, 2008, and in April 2007, the state Supreme Court appointed a “Commission on Access, Preservation and Sealing of Court Records” comprised of judges, attorneys, media representatives, and other interested parties that reviewed other state’s policies on sealing civil case files and held hearings.

On Dec. 31, 2007, all seven members of the state Supreme Court voted in favor of changes to the rules that had been recommended by the commission, the Journal-Review reported, ruling that the changes would take effect the next day.

Under the new Nevada rules, judges must identify in writing “compelling privacy or safety interests that outweigh the public interest in access to the court record,” the Journal-Review reported. Records can be sealed if permitted by state or federal law or to protect such information as trade secrets, personal identifiers such as Social Security numbers, medical or mental health records, or tax and financial records, the Journal-Review reported.

One change the Supreme Court justices made to the recommendations, the Journal-Review reported, was to set a time limit for individuals to ask the courts to unseal documents or files. The new rules state that any person, a litigant or nonlitigant, can challenge an order sealing documents and ask that the documents be unsealed, but those motions or petitions must be filed within five years of a case being closed or resolved, the Journal-Review reported.

The rules also state that when a court record is sealed, some identifying information about the case must be maintained on court indexes for public review, the Journal-Review report said, “including a case number, docket code or number; the date of the initial filing; the names of parties, counsel of record and assigned judge; the notation ‘case sealed;’ the case type and cause of action which may be obtained from the civil cover sheet; the order to seal and written findings supporting the order to seal; and the identity of the party who filed the motion to seal.”

Barry Smith, executive director of the Nevada Press Association and a member of the commission, told the Journal-Review that the new rules are “a significant statement for open government in Nevada.”

“[They] still allow judges to seal files, but they have to do so for the right reasons, and they have to make a public record of their decision,” Smith said. “That’s what open government is about: accountability.”

One member of the commission, Review-Journal Special Projects Editor A.D. Hopkins said he questioned the wisdom of the five-year limit on motions to unseal, “but at least remedies are provided.”

According to the February 2008 issue of the American Bar Association (ABA) publication Litigation News, an increasing number of jurisdictions have sought to reverse a trend toward sealing civil case files.

Litigation News said that in addition to Washington state’s 2006 rule change, in April 2007 the Supreme Court of Florida issued emergency rules that require judges to specify in writing their reason for the sealing order and to specifically explain why the order is no broader than necessary. The rules also stipulate that judges may not conceal the docket number of the action, and clerks must post all sealing orders at the courthouse and on the court Web site. Non-parties may move to vacate a sealing order, and, if the motion is contested, the court must hold a public hearing on the motion, Litigation News reported.

Litigation News said the change in Florida rules was a response to the discovery that one county had sealed files in more than 400 civil cases, some of which concerned divorce and domestic violence by judges, politicians, lawyers, police officers, or television personalities.

Erica L. Calderas, co-chair of the ABA Section of Litigation’s Pretrial Practice and Discovery Committee, told Litigation News that she acknowledges the importance of balancing individual privacy concerns with the public right of access to court information, but she strongly objects to sealed dockets. “The existence of secret dockets can cause the public to lose faith in the court system,” Calderas said, “as it implies that there is a double standard of justice – one for the haves and one for the have-nots.”

– Patrick File
Silha Fellow and Bulletin Editor