Keeping the Federal Courts Open
Leslie, Gregg, News Media and the Law
The federal judiciary has been coming up on the wrong side on openness issues lately, but it's up to reporters to make the case for greater access to information.
A funny thing happened in the federal courts as they started to formulate plans a few years ago to address electronic access to court records.
At first, it looked like the policy-making body of the courts, the Judicial Conference, would adopt a rule that allowed for full electronic access with one twist. That is, while everything that would be normally available at the courthouse would be accessible online, some information that had always been open at the courthouse - like bank account numbers and personal identifiers - would no longer be available, either there or online. It seemed like a reasonable compromise that would still demonstrate a commitment to openness.
But the policy contained one other compromise, which was introduced with little fanfare or warning: information about jurors would be quite a bit harder to find. And later, another bit of secrecy would arise, when the conference suggested that district courts should take a look at their system of hiding plea agreements for defendants who had become cooperating witnesses. (Both of these policies are covered in greater depth in the two articles that precede this column.)
Such blanket policies often take root easily because they seem simple and logical at first blush. Why not protect jurors from the possibility that someone might somehow use their information against them? Why not hide cooperating witnesses so that sometimes dangerous defendants don't know that an associate has turned against them?
Combine that with the fact that officials often do not see a public need for the same information - requests for access are often met with the blunt response, "Why do you want to know?" - and it's easy to see why secrecy takes hold even in otherwise reasonable minds. Worse, judges, prosecutors and attorneys can sometimes misinterpret a request for openness as an allegation of wrongdoing, which leads them to dig in their heels and maintain the secrecy.
So to fight for access, it's clear that the first hurdle is educating those who oppose it. Judges, lawyers, and court personnel (and remember, court clerks often are the main gatekeepers who question the interest in access) can get through a trial more easily if they don't have to worry about the public looking over their shoulders. But that resistance can often be overcome.
Part of this education comes in how reporters …
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Publication information: Article title: Keeping the Federal Courts Open. Contributors: Leslie, Gregg - Author. Magazine title: News Media and the Law. Volume: 32. Issue: 3 Publication date: Summer 2008. Page number: 8. © Reporters Committee for Freedom of the Press Fall 2008. Provided by ProQuest LLC. All Rights Reserved.
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