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American Journalism Review
Keeping the Public in the Dark  | American Journalism Review
 AJR  Columns :    FIRST AMENDMENT WATCH    
From AJR,   July/August 1995

Keeping the Public in the Dark   

Two proposals would undermine the public's right to know about federal legal proceedings.

By Jane Kirtley
Jane Kirtley (kirtl001@tc.umn.edu) is the Silha Professor of Media Ethics and Law at the University of Minnesota's School of Journalism and Mass Communications.     


It is no secret that vocal and influential factions of the bench and bar are hostile to public scrutiny of the judicial process. Continuing efforts to banish cameras from federal courtrooms are only the most visible signs of this. Pious expressions of concern about debasing the dignity of the courtroom are often code words for initiatives designed to keep the unwashed masses from scrutinizing what goes on in the inner sanctum.

But while the camera debate at least has excited public interest and provoked extensive press coverage, two other low-profile campaigns, also intended to shroud legal disputes in secrecy, are simultanenously being waged before administrative bodies in Washington. If successful, they threaten to undermine the public's right to know in ways far more profound and far-reaching.

For more than three years the Judicial Conference of the United States, the policy making body that will decide the fate of cameras in federal courts, has been considering revisions of the federal rule that governs the sealing of documents exchanged by the parties in civil suits before a trial.

Rule 26(c) currently says these materials may be kept secret only if the parties are able to demonstrate good cause to justify doing so. "Good cause" traditionally has included protection of trade secrets, confidential government data or highly personal information. At the same time, courts in several jurisdictions have held that the public and press enjoy at least a common law, and in some cases a First Amendment, right of access to such material, and that courts must balance these competing interests before declaring documents off-limits.

A proposed amendment to the rule would dramatically change the situation, permitting judges to approve secrecy pacts crafted by the courtroom combatants. Although a separate provision of the amendment would permit others to intervene after the fact by asking the court to dissolve such orders, the net effect would be to cut off access to information of vital public interest.

The Judicial Conference was poised to approve the amendment in mid-March. However, a flurry of negative comments filed by media and lawyers' groups prompted the conference to postpone action and to refer the proposal to one of its committees for reconsideration in July.

Harvard Law Professor Arthur Miller excoriated the Judicial Conference for caving in to what he characterized as "special interest politics" when it declined to embrace the amendment. In an article in the National Law Journal, he complained that media groups criticizing the proposal acted only to advance their "parochial" business interests, by gaining access to information exchanged by litigants in a publicly funded proceeding – information which, Miller implied, the public has no right to know.

Meanwhile, the more obscure Administrative Conference of the United States, which makes recommendations for federal agencies, has been considering a proposal to exempt certain documents used in alternative dispute resolution (ADR) involving federal agencies from the federal Freedom of Information Act. These proceedings, which are of fairly recent vintage, are designed to settle administrative disputes outside the normal court process through the use of mediators.

Unlike private ADR – which involves business mediation between private parties administered by private dispute resolution services – conflict resolution under the ADR Act always includes federal agencies. The federal involvement suggests a clear public inter¸st in media access to the documents. But Mark Grunewald, associate dean at Washington and Lee University, argues that opening them up undermines essential confidentiality provisions.

An Administrative Conference committee briefly suspended consideration of the proposal after receiving comments objecting to it in March. But the panel rubber-stamped the measure in April, referring it for action at the organization's plenary meeting in mid-June, where it is expected to be approved.

Both of these proposals seek nothing less than an official endorsement of secret justice. They would permit participants in a controversy to conspire to conceal information from the public, even while utilizing public resources, funds and forums to settle their disagreements. The public interest in knowing, for example, why the Justice Department has dropped antitrust charges against a software manufacturer, or the details of the settlement of a sexual harassment complaint against a Fortune 500 corporate official, or the content of documents produced by chemical companies sued by veterans exposed to their products during combat, will be trumped by amorphous claims of "privacy," "confidentiality" and "expediency."

This kind of secrecy will only exacerbate the perception that the justice system promotes private interests rather than the public welfare. l

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