A Gap in Access to Court Documents
Denniston, Lyle, American Journalism Review
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 fight 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, pretrial 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. …