Why shouldn’t courts keep some documents secret?

Why shouldn’t courts keep some documents secret?
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Our times, rightly or wrongly, seem to demand transparency as never before.

We demand that our president let us behind closed doors when he meets with opposing leaders of the world, particularly given the current suspicion over President TrumpDonald John TrumpTwitter CEO: 'Not true' that removing Trump campaign video was illegal, as president has claimed Biden formally clinches Democratic presidential nomination Barr says he didn't give 'tactical' command to clear Lafayette protesters MORE’s meeting with Russia’s Vladimir Putin. This, even though one must admit that, at times, far more can be accomplished without transparency. The give and take, the back and forth, the posturing — success in a negotiation isn’t necessarily advanced if the world is watching.

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But, what about privacy in the courts? Isn’t it true that litigants can more effectively advance the criminal process if the court can order that parts of the proceedings remain under seal, beyond the public’s reach? Do we always advance the ball if the public, through the news media, can see and hear everything along the way to resolution?   

  

Most litigants, particularly criminal defendants, wouldn’t want the public to see the true back and forth. But the law largely has been that, once a case is filed, the First Amendment demands that all is fair game unless a judge signs a protective order (for a compelling reason) placing certain materials beyond public reach. Sometimes the protective order is for a limited period of time, such as until trial; sometimes it consists of redactions in otherwise available materials.

Though anecdotal, it seems that courts tend to lean toward the First Amendment — the public simply has a right to know. Indeed, the Justice Department Rules require prosecutors, as a matter of course, to oppose requests to keep proceedings secret: “Because of the vital public interest in open judicial proceedings, the government has a general overriding affirmative duty to oppose their closure.”

What are we really talking about when we say an item is sealed? It’s unlikely to be something that might embarrass a defendant, though it could be something that’s embarrassing to an innocent non-party. More likely, an item becomes unavailable if there is a realistic security concern to a defendant or a witness. Should the same policy concern suggest the requirement of First Amendment supremacy — the public has a right to know even if another societal value (such as privacy, or even safety) will fall by the wayside?

Let’s put this in perspective. Two decades ago, an item in the public domain could be seen by anyone who happened to read it. Sure, someone could copy and distribute it, but that’s about it.  Now, material goes “viral” online, shared on social platforms. It is never erased and can be found in a keystroke.

All of this came to a head in an ongoing federal criminal case in Los Angeles. A former police detective, John Belian, pleaded guilty and his plea agreement was to be filed under seal (unsealed documents are filed electronically and available to anyone with a court system account). Because of an error, it was available on the court’s website for 31 hours. The Los Angeles Times picked it up and published a story. Fearing for the detective’s safety — he had ties to organized crime organizations — his lawyer asked the court to direct the newspaper to remove the story and not write about the plea agreement again. Remarkably, the judge granted the detective’s request without even hearing from the newspaper.

So far as the paper was concerned, it obtained the document legally and had the right to publish. The Times immediately filed an appeal but withdrew it when, after a few days, the judge rescinded his initial order, stating there had been enough time to provide the detective and his family with protection. The Times re-posted its initial story, and detailed the detective’s prior cooperation with foreign organized crime syndicates.  

Now, while Belian’s effort was to get the court to basically rewrite history by clawing back a story already published, the case addresses the broader questions of how far a judge can go and how far the press should go. As the judge said when he allowed the paper to publish, he hoped it would “use some restraint … in light of potential consequences.”

Unquestionably, the public has a broad “right to know” once a proceeding is filed. Still, as long as the practice is not abused, suppose both parties agree to have a document sealed. If there is good reason, and the parties agree, shouldn’t the judge be able to use his discretion to keep certain information out of the public domain? Meaning, shouldn’t the bar for a sealing order be lower than it is (particularly if an immediate appeal, perhaps even the same day, is available), thus according judges more flexibility in deciding in favor of quarantine?

And put differently, shouldn’t some things just remain private?   

Joel Cohen, a former state and federal prosecutor, practices criminal defense law at Stroock & Stroock & Lavan LLP in New York. Cohen is an adjunct professor at Fordham Law School. He regularly lectures and writes on law, ethics and social policy for the New York Law Journal and other publications, and is the author of "Blindfolds Off: Judges on How They Decide” and “Broken Scales: Reflections on Injustice.”

Dale J. Degenshein is special counsel with Stroock. She writes frequently with Joel Cohen, and collaborated on both books.