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REPORT TO THE MARYLAND AD HOC COMMITTEEREPORT TO THE MARYLAND AD HOC COMMITTEE
ON ELECTRONIC ACCESS TO COURT RECORDSON ELECTRONIC ACCESS TO COURT RECORDS
CONSTITUTIONAL AND COMMON LAW RIGHTS OF ACCESS CONSTITUTIONAL AND COMMON LAW RIGHTS OF ACCESS
TO COURT RECORDS TO COURT RECORDS
June 25, 2001June 25, 2001
INTRODUCTION INTRODUCTION
The Committee on Electronic Access to Court Records must
parce out what constitutional, common, statutory and
regulatory law applies to release of court records and what
administrative and business practices currently operate. This
memorandum, briefly and without encyclopedic citations, will
lay out the constitutional and common law background. It
concludes, without question, the constitutional foundation is
an 800-pound gorilla; it controls the question of whether the
courts, the legislature or executive agencies have the power
needed to impose any limits on access, and if so, under what
circumstances.
I. The Constitution of the United States Requires a
Presumption that Court Proceedings Will be Open to the Public.
A quartet of U.S. Supreme Court cases, relying on
previous case law, on Anglo-American history, and on American
traditions, held that the public and the press have a First
Amendment right to attend and report on all parts of criminal
proceedings. Before that right can be limited, the Court
found that a trial judge must hold a hearing in advance to
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establish that conditions exist that justify prior restraint
or any closure of the proceedings, determine that no other
remedy will work and that the prior restraint or closure will
be effective. The standard for closure is high and rarely
met. Richmond Newspapers, Inc. v. Commonwealth of Virginia,
448 U.S. 555 (1980) (holding that the public has a First
Amendment right of access to a criminal trial); Globe
Newspaper v. Superior Court, 457 U.S. 596 (1982) (holding that
blanket closures cannot be mandated by law, but must be
determined by the trial court on a case by case basis; Press
Enterprise v. Superior Court, 464 U.S. 501 (1985) (holding
that the court could not seal the transcript of the jury's
voir dire without following the correct procedure); Press
Enterprise v. Superior Court, 478 U.S. 1 (1986)(holding that
the First Amendment right of access to criminal trials extends
to preliminary or pretrial hearings).
Without the presumption of open courts, its several
purposes would falter and our court system would be
fundamentally different. In performing the essential
functions of our court systems, participants must be aware of
an unbroken public gaze, the possibility of challenge, the
demand for accuracy and truthfulness. AThese policies relate
to the public's right to monitor the functioning of our
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courts, thereby insuring quality, honesty and respect for our
legal system.@ In Re Continental Securities 732 F.2d 1302 1309
(7
th
Cir. 1984). APublic scrutiny of a criminal trial enhances
the quality and safeguards the integrity of the fact-finding
process, with benefits to both the defendant and to society as
a whole. Moreover, public access to the criminal trial
fosters an appearance of fairness, thereby heightening public
respect for the judicial process. And in the broadest terms,
public access to criminal trials permits the public to
participate in and serve as a check upon the judicial process
-- an essential component in our structure of self-government.
In sum, the institutional value of the open criminal trial is
recognized in both logic and experience.@ Globe Newspapers,
supra, 457 U.S. at 605-606. In a word, closure is
inconsistent with the law and the traditions that have created
American court systems.
II. Maryland Has Identified Open Court II. Maryland Has Identified Open Court Proceedings as Required Proceedings as Required
under Federal and State Constitutional Provisions.under Federal and State Constitutional Provisions.
Maryland courts of appeal have had a number of occasions
to apply this black letter law, and did so relying on Article
40 of the Maryland Constitution as well as the First Amendment
to the U.S. Constitution. Maryland v. Cottman Transmissions
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Systems, Inc., 75 Md. App. 647, 656, 542 A.2d 859, 863 (1988);
see Buzbee v. Journal Newspapers, Inc., 297 Md. 68, 76, 465
A.2d 426, 431 (1983) (Athere is a right of public access to
pretrial hearings in criminal cases and that right is
predicated on the First and Fourteenth Amendments and on
Article 40 of the Maryland Declaration of Rights@); Hearst
Corporation v. Maryland, 60 Md.App. 651, 484 A.2d 292 (Md.
App. 1984). This constitutional right of access applies to
both civil and criminal proceedings, See Doe v. Shady Grove
Adventist Hospital, 89 Md. App. 351, 359, 598 A.2d 507, 511
(1991) (civil proceedings); Patuxent Publ=g Corp. v. Maryland,
48 Md. App. 689, 692, 429 A.2d 554, 556 (1981) (criminal
proceedings) and to pre-trial proceedings, such as preliminary
hearings and jury selection, as well as to trials. See Press-
Enterprise Co. v. Superior Court, supra,(preliminary hearing);
Press-Enterprise Co. v. Superior Court, supra,(voir dire
proceedings).
Just as the Supreme Court of the United States has done,
Maryland courts recognize the functional role of the
presumption of access: Apublic access plays a >positive,= indeed
critical, role in ensuring the fairness of our judicial
system.@ Baltimore Sun v. Thanos, 92 Md. App. 227, 234, 607
A.2d 565, 568 (1992). As the Court of Special Appeals
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explained in Journal Newspapers, Inc. v. Maryland nearly two
decades ago:
What justifies the Aconstitutionalization,@ through
application of the First Amendment free speech and
press clause, of public access to a trial is the
legitimate interest that the public has in observing
the workings of its judicial and criminal justice
systems, to ensure that they are both fair and
effective. That same interest exists with respect
to pretrial judicial proceedings. If the policeman
has misbehaved and as a result has caused valuable
evidence to become forfeit[ed], if a request is made
to move the trial, or delay it, or to disqualify the
judge, or to set or revoke bail C the public has a
compelling interest in these things and thus a right
to observe the decisional process. Indeed, in a
democratic society, these matters are likely to be
of even greater interest than the guilt or innocence
of a particular defendant.
54 Md. App. 98, 109, 456 A.2d 963, 969 (emphasis added), aff=d
sub. nom Buzbee v. Journal Newspapers, Inc., 297 Md. 68, 465
A.2d 426 (1983) (constitutional right of access applies to
pretrial criminal proceedings); see also Patuxent Publ=g Corp.
v. Maryland, 48 Md. App. 689, 692, 429 A.2d 554, 556 (1981)
(same). The importance of this functional or structural role
of the presumption of open courts cannot be understated. Our
democracy lies on A. . . the antecedent assumption that
valuable public debate -- as well as other civic behavior --
must be informed. (Footnote omitted.)@ Richmond Newspapers,
supra, 488 U.S. 587.
III. The Same Constitutional Right of Access Extends to Federal and State, Civil and
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Criminal Court Records.
A. Maryland Criminal Records Access: In Maryland, only the Court
of Special Appeals has taken the opportunity to recognize that
the rights of access to judicial proceedings encompasses a
right to attend court proceedings themselves, but also to see
and copy records relating to public judicial proceedings.
Although the Maryland Court of Appeals has not ruled on the
question whether there is a constitutional right of access to
court records, see, Baltimore Sun Co. v. Mayor & City Council
of Baltimore, 359 Md. 653, 659, 755 A.2d 1130, 1134 (2000)
(declining to decide constitutional issue in light of common
law right of access to court proceedings and court records),
the Maryland Court of Special Appeals has held that such a
right exists in both criminal and civil cases. In Thanos,
supra, a newspaper was seeking access to a pre-sentence
investigation report admitted into evidence under seal in a
criminal case. 92 Md. App. at 231, 607 A.2d at 567. After
noting that A[a] number of courts have . . . expressly
recognized a First Amendment right of access to certain
judicial records in criminal cases,@ the Court of Special
Appeals held that the trial court could not deny access to the
pre-sentence report without first considering whether a
compelling interest in the report=s confidentiality outweighed
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the constitutional right of access to court records in
criminal cases, and without considering alternatives to a
broad seal. Id. at 233, 607 A.2d at 568.
B. Maryland Civil Court Records: In Doe v. Shady Grove Adventist
Hospital, 89 Md. App. 351, 360, 598 A.2d 507, 511 (1991), the
Court of Special Appeals found that the constitutional right
of access to court records guaranteed by both the First
Amendment to the United States Constitution and Article 40 of
the Maryland Declaration of Rights applies in civil as well as
criminal proceedings. In that civil proceeding, the court
allowed the plaintiff to proceed anonymously (as John Doe)
while making clear that the court records in that case should
not be sealed so as not to Aintrude at all on the public=s
right of access to court records.@ Id. at 365, 598 A.2d at
514.
C. Federal Court Records: Federal courts, including the United
States Court of Appeals for the Fourth Circuit (which includes
the District of Maryland), have also confirmed that there is a
constitutional right of access to court records in both
criminal and civil proceedings. See In re Washington Post
Co., 807 F.2d 383, 390 (4th Cir. 1986) (First Amendment right
of access applies to documents filed in connection with plea
hearings and sentencing hearings in criminal cases); Rushford
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v. The New Yorker Magazine, Inc., 846 F.2d 249, 253 (4th Cir.
1988) (First Amendment right of access applies to documents
filed in connection with a summary judgment motion in a civil
case); Associated Press v. United States Dist. Court for the
Cent. Dist. of Calif., 705 F.2d 1143, 1145 (9th Cir. 1983)
(Athe public and press have a [F]irst [A]mendment right of
access to pretrial documents in general@); In re Continental
Illinois Sec. Litig., 732 F.2d 1302, 1308 (7th Cir. 1984)
(AThe public=s right of access to judicial records has been
characterized as >fundamental to a democratic state.=. . .
Recently, we recognized that this presumption is of
constitutional magnitude.@)(citations omitted). United States
v. Mitchell, 179 U.S. App. D.C. 293, 551 F.2d 1252, 1258 (D.C.
Cir. 1976), rev'd on other grounds sub nom. Nixon v. Warner
Communications, Inc., 435 U.S. 589, 55 L. Ed. 2d 570, 98 S.
Ct. 1306 (1978), quoted in United States v. Edwards, 672 F.2d
1289, 1294 (7th Cir. 1982) (AThe public's right of access to
judicial records has been characterized as "fundamental to a
democratic state[.])
D. Closure of Court Records
Trial judges may close records in individual cases, when
constitutional guidelines are followed carefully. Access may
be Aabrogated only in unusual circumstances.@ Stone v.
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University of Md. Med. Sys. Corp., 855 F.2d 178, 182 (4th Cir.
1988) (vacating and remanding order to seal entire case record
where lower court did not provide notice, reasons for sealing,
or opportunity for objection). A trial judge is required to
find that the reasons for closure outweigh the reasons for
access, that closure will address the problems raised by
access, that closure is as narrow as possible and lasts for as
short a time as possible. Thanos, supra, 92 Md. App. at 246-
47, 607 A.2d at 574 (vacating and remanding order sealing pre-
sentence investigation report). And see, e.g., Press-
Enterprise Co. v. Superior Court, 478 U.S. 1, 15 (1986).
IV. The Right of Access to Court Records Also Rises from Maryland Common Law.
Those courts that have not had occasion to address the
constitutional right of access to court records, including the
Maryland Court of Appeals, have recognized a public right of
access to inspect and copy judicial records arising from a
longstanding tradition of open records at common law:
Throughout our history, the open courtroom has been
a fundamental feature of the American judicial
system. Basic principles have emerged to guide
judicial discretion respecting public access to
judicial proceedings. These principles apply as
well to the determination of whether to permit
access to information contained in court documents
because court records often provide important,
sometimes the only, bases or explanations for a
court's decision.
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Brown & Williamson Tobacco Corp. v. FTC, 710 F.2d 1165, 1177
(6th Cir. 1983); see also Nixon v. Warner Communications Inc.,
435 U.S. 589, 597 (1978). The Court of Appeals has traced the
tradition of open courts, termed the Alegacy of open justice,@
from its English roots to colonial America where it Abecame an
intrinsic element of early colonial governments.@ Baltimore
Sun Co. v. Mayor & City Council of Baltimore, 359 Md. 653,
662, 755 A.2d 1130, 1135 (2000) (quoting Richmond Newspapers,
448 U.S. at 590).
The Court of Appeals has recently confirmed that in
Maryland, the common law does provide a public right of access
to court records as well as to the underlying judicial
proceedings: AThe common law principle of openness is not
limited to the trial itself but applies generally to court
proceedings and documents.@ Baltimore Sun Co. v. Mayor & City
Council of Baltimore, 359 Md. at 661, 755 A.2d at 1134
(emphasis added); see Baltimore Sun Co. v. Colbert, 323 Md.
290, 305, 593 A.2d 224, 231 (1991) (Athere is a common law
right to inspect and copy judicial records and documents@);
Thanos, 92 Md. App. at 233, 607 A.2d at 567. The Court of
Special Appeals has explained that A[t]he purpose behind the
right of the public and media to attend trials and inspect
court records is obvious. It is through the exercise of such
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a right that the public knows what transpires in its courts.@
Hearst Corp., 60 Md. App. at 658, 484 A.2d at 295.
The common law right of access to court records may be
overcome by a showing that an important competing interest
outweighs the public interest in access. See Stone, 855 F.2d
at 180; Rushford, 846 F.2d at 253. It is true that common
law principles may also be modified by statute, court rule or
order, unlike constitutional law. See Baltimore Sun Co. v.
Mayor & City Council of Baltimore, 359 Md. at 662, 755 A.2d at
1135. But in Maryland, the General Assembly has actually
confirmed and expanded, through statute, the general right of
public access to court records. Md. COURTS AND JUDICIAL
PROCEEDINGS Code Ann. '' 2-203 (2001) '' 2-203. Inspection of
records:
Unless otherwise provided by law or order of court,
any person may, without charge, inspect, examine,
and make memoranda or notes from an index or paper
filed with the clerk of a court.
Maryland Rule 16-308 applies to Circuit Courts:
c. Inspection of criminal history record information
contained in court records of public judicial
proceedings. Unless expunged, sealed, marked
confidential or otherwise prohibited by statute,
court rule or order, criminal history record
information contained in court records of public
judicial proceedings is subject to inspection by any
person at the times and under conditions as the
clerk of a court reasonably determines necessary for
the protection of the records and the prevention of
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unnecessary interference with the regular discharge
of the duties of his office.
Maryland Rule 16-503 applies the same rule to District Courts.
V. As the Right of Access to Records Applies to Individual Cases, It Also Applies to
Collections of Information.
Because the public is to know Awhat transpires in its
courts,@ supra, the public is allowed access to individual
trials and their records. It is impossible to comprehend the
broad operational success of any government process without
knowing how the process impacts the individual. And on the
flip side the constitutional right of access to court records
has been held to extend not just to court records filed in a
particular case, but also to compilations of data drawn from
the records of numerous cases. Specifically, in Globe
Newspaper Co. v. Fenton, 819 F. Supp. 89 (D. Mass. 1993), the
court held that the First Amendment right of access to court
records encompassed alphabetized indices to closed criminal
cases. In that case, the state court records custodians had
declined to allow unrestricted public access to such indices
on the basis of a generalized concern for the privacy
interests of defendants. See id. at 93. The federal court
analogized the indices to a Acard catalogue@ for the Avast
library of volumes@ of courthouse papers. Id. at 94. The
federal court held that the ban on access to the indices
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Aimpose[d] a substantial burden on the ability of the press to
provide fully developed criticism of the institutions which
administer criminal justice through the Massachusetts state
courts,@ and thus violated the First Amendment. Id. at 96.
VI. In Matters Concerning Access to Court Records, Judges Have the Power To Exercise
Discretion; Agencies and Administrators Do Not.
The Court of Appeals has adopted rules that protect
confidentiality in limited instances supported by historical
practice. Nonetheless, no record is absolutely closed. In
every instance, the court retains the power to open the
confidential records when circumstances warrant disclosure:
criminal investigations, Md. Rule 4-642 (AFiles and records of
the court pertaining to criminal investigations shall be
sealed and shall be open to inspection only by order of the
court.@), attorney disciplinary hearings, Md. Rules 16-704 &
16-718, (AFiles and records of a court pertaining to any
motion filed with respect to a subpoena shall be sealed and
shall be open to inspection only by order of the court.@)
adoption and guardianship, Md. Rule 9-112, (AThese dockets are
not open to inspection by any person, including the parents,
except upon order of court. If the index to a docket is kept
apart from the docket itself, the index is open to
inspection.@) and juvenile proceedings, Md. Rule 11-121,
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(Files and records of the court in juvenile proceedings,
including the docket entries and indices, are confidential and
shall not be open to inspection except by order of the court
or as otherwise expressly provided by law.@) It is
interesting to notice, however, that the General Assembly has
changed its in loco parentis approach to juveniles recently
and now permits access to juvenile proceedings. Maryland
Juvenile Causes Rule 3-812 et seq.
While legislatures can follow common law traditions in
closing particular categories of court records, legislatures
may not give administrative offices the power to exercise
discretion. Neither law nor regulation may empower
administrative employees to grant access to some segments of
the public and not to others. Courts have repeatedly held
that, even in circumstances where a particular form of access
to governmental proceedings or records is not guaranteed under
the First Amendment, it nonetheless violates the First
Amendment for the government to pick and choose who may enjoy
such access unless such discrimination is necessary to advance
a compelling governmental interest. See Anderson v. Cryovac,
Inc., 805 F.2d 1 (1st Cir. 1986) (although press had no First
Amendment right of access to discovery materials protected by
a protective order, First Amendment prohibited court from
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Aselectively excluding@ newspaper from access after material at
issue was made available to health officials and one
television station); Sherrill v. Knight, 569 F.2d 124, 129
(D.C. Cir. 1977) (although there is no First Amendment right
of access to the White House, grant of access to some members
of press requires that access not be denied to other members
of the press Aarbitrarily or for less than compelling
reasons@); American Broadcasting Cos. v. Cuomo, 570 F.2d 1080,
1087 (2d Cir. 1977) (although there was no right of press to
attend political candidate=s post-election party, Aonce there
is . . . [access] by some of the media, the First Amendment
requires equal access to all of the media@).
Other courts have held that discrimination in the
provision of access to government records violates the Equal
Protection Clause of the Fourteenth Amendment to the United
States Constitution. See McCoy v. Providence Journal Co., 190
F.2d 760, 765 (1st Cir. 1951) (city official=s withholding of
access to tax records from one party while granting it to that
party=s competitor Aconstitutes a denial of equal protection of
the laws@); Donrey Media Group v. Ikeda, 959 F. Supp. 1280,
1286 (D. Haw. 1996) (access to government records cannot be
selectively administered consistent with equal protection);
Quad-City Community News Service, Inc. v. Jebens, 334 F. Supp.
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8, 16 (S.D. Iowa 1971) (denial of underground newspaper=s
request for access to police department records made available
to other requestors violated First Amendment and Equal
Protection Clause of the Fourteenth Amendment, regardless of
A[w]hether this access is denominated a >right= or a
>privilege=@).
Similarly, even if there were not an independent
constitutional right of access to court records, First
Amendment principles would nonetheless independently prohibit
courts from setting up any system for access to court records
that vests court officials with broad and subjective
discretion to decide whether to grant a request for access or
whether one requestor or type of requestor should be favored
over others. The Supreme Court has squarely held that the
First Amendment bars any regulatory scheme that vests
government officials with wide-ranging discretion to decide
who may engage in Aexpression or conduct associated with
expression,@ even if the First Amendment would not
independently guarantee any right to engage in the conduct at
issue. City of Lakewood v. Plain Dealer Publ=g Co., 486 U.S.
750, 760 (1988) (striking down regulation granting mayor
unbridled discretion to grant or deny licenses to place
newspaper dispensing machines on city sidewalks, even though
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the court assumed it may have been permissible for the city to
impose a total ban on such machines).
AUnfettered discretion@ is not permitted and Aneutral
criteria@ are essential to insure that governmental decisions
relating to conduct associated with expression are Anot based
on the content or viewpoint of the speech@ in which the person
applying for permission wishes to engage. Plain Dealer, 486
U.S. at 760-61. Absent Aneutral criteria,@ there is a Adanger
of censorship,@ which is anathema to the First Amendment. Id.
Obtaining access to court records clearly is Aconduct
commonly associated with expression,@ id. at 759, in the sense
that it is a basic prerequisite for enabling the press and the
public to report about, discuss, and criticize the activities
of the judiciary. ARegulations which permit the Government to
discriminate on the basis of the content of the message cannot
be tolerated under the First Amendment.@ Regan v. Time, Inc.
468 U.S. 641, 648-9 (1984).
VII. DOJ v. Reporters = Committee Does Not Provide Authority for Limiting Access to Court
Records.
Those who voice support for implementing across-the-board
restrictions on access to electronic court records rely on
United States Department of Justice v. Reporters Committee for
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Freedom of the Press, 489 U.S. 749 (1989). The case
interprets the federal Freedom of Information Act (AFOIA@). 5
U.S.C. 552 et seq. It should be apparent from this fact and
from the foregoing law, the Reporters= Committee case provides
no legal authority that would permit or justify a fundamental
change the presumption in favor of access to court records.
The Reporters= Committee had joined CBS News in seeking
the matters of public record contained in the so-called Arap
sheet@ for an organized crime figure identified by the
Pennsylvania Crime Commission. ARap sheets@ are compiled by
the Justice Department from local, state and federal agencies
to reflect identification of an individual and his/her
criminal history. The creation of such records, authorized in
1924, tacitly acknowledged that criminal investigations
frequently cross state lines and detection is aided immensely
by access to a central repository of information. Generally,
but not consistently, the records have been treated as
confidential. Department of Justice v. Reporters= Committee,
489 U.S. 749 (1989).
The CBS/Reporters= Committee request for the records were
made under the federal FOIA and the access question was
considered under Exemptions 6 and 7(C). 5 U.S.C. '552(b).
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Exemption 6 protects personnel, medical and Asimilar@ files
where disclosure would Aconstitute a clearly unwarranted
invasion of personal privacy.@ '552(b)(6). Similarly,
Exemption 7(C) protects records of law enforcement agencies if
disclosure would become Aan unwarranted invasion of personal
privacy.@ '552(b)(7)(C).
As a first point of distinction, the records are compiled
by agencies, not courts, and though some of the information
may also be contained in court records, the purpose of the
agency record is to aid in law enforcement, not in the
operation of the courts.
Second, the concern underlying the Reporters= Committee
decision was that the data itself was a compilation of
information about a person that was gathered from disparate
sources. When these records were assembled in a central
location presented a cumulative personal portrait that might
amount to an Aunwarranted@ invasion of privacy. Reporters=
Committee, 489 U.S. at 764. Or, as Judge Kenneth Starr put it
at the court of appeals level, "computerized data banks of the
sort involved here present issues considerably more difficult
than, and certainly very different from, a case involving the
source records themselves." Id. at 760, quoting 831 F.2d at
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1128 (Starr, dissenting). (Emphasis supplied.) Repeatedly,
the Supreme Court emphasized the "difference between scattered
bits of criminal history and a federal compilation." Id. at
767.
In considering the question of enhanced access to court
records of criminal dispositions, there is no "computerized
summary" of judicial and non-judicial records no "compilation"
of "scattered bits" of information about an individual that
might in assembled form implicate some interest in personal
privacy. Here the public would simply have electronic access
to "the source records themselves," the same court files that
are accessible today at the courthouse, or on-line through the
Maryland Administration of Courts Judicial Information System.
Electronic access does enhance inspection of public records,
but making public records easier to reach does not create an
invasion of privacy. See, e.g. "There is no liability when
the defendant merely gives further publicity to information
about the plaintiff which is already public. Thus there is no
liability for giving publicity to facts about the plaintiff's
life which are matters of public record A Restatement of
Torts 2d, '' 652D. A. . . even the prevailing law of invasion
of privacy generally recognizes that the interests in privacy
fade when the information involved already appears on the
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public record. Cox v. Cohn 420 U.S. 469, 494-495 (1975)
(where the record revealed the name of a rape victim.) And in
fact, even when the very records addressed in Reporters=
Committee were released to the public, the subject of the
records had no cause of action for invasion of privacy.
[S]everal curious officers accessed the National
Crime Information Center ("NCIC") and the Arkansas
Crime Information Center ("ACIC") computer systems
in an effort to confirm rumors that Eagle [the
subject] had a felony record. . . . [Nonetheless]
the situation in [this]case . . . seems more
analogous to circumstances in which courts have
refused to recognize a legitimate expectation of
privacy. See Nilson v. Layton City, 45 F.3d 369, 372
(10th Cir. 1995)("Criminal activity is . . . not
protected by the right to privacy."); Holman v.
Central Arkansas Broadcasting Co., 610 F.2d 542, 544
(8th Cir. 1979)("No right to privacy is invaded when
state officials allow or facilitate publication of
an official act such as an arrest."); Baker v.
Howard, 419 F.2d 376, 377 (9th Cir. 1969)(holding
that constitutional right is not implicated even
when police officers circulate false rumors that
person has committed a crime). . . . Far from being
"inherently private," the details of Eagle's prior
guilty plea are by their very nature matters within
the public domain. Accordingly, we decide without
hesitation that Eagle has no legitimate expectation
of privacy in this material.
Eagle v. Morgan, 88 F.2d 620, 626 (8
th
Cir. 1996).
Third, there is an important practical difference between
the issue of electronic access to court files and the issue of
access to FBI "rap sheets" under FOIA that was presented in
the Reporters= Committee case. Requiring DOJ, or any law
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enforcement agency to produce rap sheets in response to any
person's FOIA request for anyone else's rap sheet, a prospect
that would invite routine requests from employers and others,
place an unimaginable burden on the agency, and result in the
wholesale dissemination of FBI records that have not been
traditionally available to the public. Allowing electronic
access to public court files would place a burden on no one,
because access would be simple and automatic; and it would
result in the dissemination of no information that is not
already available to the public.
Finally, because Reporters= Committee involved executive
branch records sought under FOIA, the sole issue before the
Court was whether the disclosure of FBI rap sheets to third
parties "could reasonably be expected to constitute an
unwarranted invasion of personal privacy" within the meaning
of FOIA Exemption 7(C). Id. at 751. None of the First
Amendment or common law rights that attach to court records
were implicated by the FOIA request for FBI rap sheets.
Instead, the Court was deciding purely "what the framers of
the FOIA had in mind" when they created the statutory
exemption at issue. Id. at 765. The Supreme Court's
balancing analysis to determine whether disclosure of FBI rap
sheets could result in an "unwarranted invasion of personal
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privacy" was purely a matter of statutory interpretation. It
should be clear that had court records been at issue, the
Court would have had to address a different and, as above,
much more demanding test.
CONCLUSION
The demanding nature of the standard for sealing court
records is grounded in our long-standing commitment to open
courts and open court records. Because of this commitment,
the first question asked to determine whether a record should
be public is the source of the record, not its contents.
Especially when records are produced by the criminal courts,
they carry a heavy presumption of openness and open access,
difficult to overcome and possible to overcome only under
judicial review of the individual case. The records treated
in Reporters= Committee are not part of that tradition, (the
Court specifically noted that "most States deny the general
public access to their criminal-history summaries" and that it
was "reasonable to presume that Congress legislated with an
understanding of this professional point of view.") Id. at
767. Thus, the holdings do not apply to a decision to enhance
access to criminal court records.
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Respectfully submitted,
Alice Neff Lucan, Esq.
Ad Hoc Committee on Access to Court Records
N.B. To accomplish the drafting of this memorandum and to
avoid needless duplication of work, I have, in some parts,
copied and paraphrased from the legal discussion in the
written testimony submitted by the Washington Post and others
to the original Court Records Access Committee.
