A Gap In Access To Court Documents   

The Supreme Court rejects a challenge to a law sealing criminal records.

Day after day, courthouse reporters across the country saunter into clerks' offices and sift through documents, looking for stories. It is so routine that it seldom raises a question, unless a reporter gets too pushy. The reality, though, is that there is no constitutional right to see court files – especially if a judge decides to put them out of reach.

The U.S. Supreme Court had a chance recently to deal with the claim that the First Amendment includes a right of access to court documents. It chose not to do so. That leaves a significant gap in a string of decisions, going back to 1980, protecting public and press access to court proceedings.

The high court has ruled repeatedly that the First Amendment does assure a broad – though not unlimited – right of access to the "public" activities of courts. So far, however, the court has guaranteed that right only for open hearings, pre-trial proceedings and public trials, and transcripts of those activities.

In many states, there has long existed a common law right of access to court papers; other states have extended their open records laws to court documents. But without a federal mandate, reporters may be barred from seeing some files – including many that could be quite newsworthy.

Indeed, 46 states and the federal government have laws authorizing their courts to expunge or put under seal court files on criminal cases that did not result in conviction. One of those state laws, Florida's, led to an unsuccessful constitutional challenge in the Supreme Court.

Over the past 20 years, courts in Florida have often sealed criminal court records, relying upon the authority of the state's law. That measure allows sealing of "criminal history information" in cases that involved first-time accusations of crime, when those charges do not lead to a guilty verdict. The law permits sealing only under "unusual circumstances," but it does not define that phrase.

One of the problems with the Florida procedure is that once a criminal case's files have been put under seal, anyone wishing to see them has the burden of proving a need for access. A Florida court of appeals ruled in 1992 that sealed records are not "public" but rather "former court records, now sealed, subject to being reopened as public records upon 'good cause shown.' "

That ruling came in a case growing out of the Miami Herald's investigation of questionable fundraising activities by a Tampa-based charity, the Bureau of Missing Children. The charity's head, John Lewis Russell III, had been arrested on criminal charges going back to 1977 but had not been convicted. He obtained court orders sealing the files in those cases; the Herald and the Times Publishing Co. of Tampa sought access. State courts refused to unseal the records.

In a second case, another Florida court of appeals ruled in 1992 that the First Amendment requires access only to actual court proceedings. Once those proceedings have occurred in the open, it ruled, there is no constitutional right of access to the judicial records if a court seals them.

Florida newspapers, along with the state of Florida, took the cases to the Supreme Court, asking the justices to broaden the right of access to include judicial records. Courts should not be free to seal their files, the appeals argued, unless there are strong reasons for the secrecy. Just as courts must justify closing a hearing or trial, or a part of those proceedings, they should have to justify blocking access to their records, the appeals suggested.

The justices turned aside both appeals without comment. While that was not a full-scale ruling, it had the practical effect of leaving intact two state court precedents firmly rejecting a right of access. It would be hard to imagine a case in which news media interest in open records would be stronger than in the Florida charity investigation. And so it would be foolish to speculate that the court simply was waiting for a more compelling claim of access before confronting the issue.

One can speculate, though, that the Supreme Court may have seen its own authority to seal records at risk. Although the court seldom seals a case file, it assumes the authority to do so, with no known standards to govern such action.

The court's spat with professor Peter Irons over the public distribution of recordings of its own hearings (see "The Press and the Law," November 1993) left no doubt of the court's keen interest in retaining control. In that instance, however, the court ultimately relented. Rather than continuing the dispute with Irons, it reversed its position in November, lifting restrictions on copying and publication of audiotapes of its hearings. "The court has now examined those restrictions and has determined that they no longer serve the purposes of the court," said the court's marshal,
Alfred Wong.

The power to withhold, this gesture demonstrates, is also the power to disclose. l