Balancing Public Access Rights with Sealed Court Records

In American courts, parties can file motions to seal dockets so that the public cannot gain access to them. Often, the intention is to shield the uglier, more contentious sides of a case from public scrutiny.

But if American courts are public fora, most hearings are open to the public, and the media is welcome to attend most cases, why should important documents be deemed inaccessible to the public simply because the litigants decide they don’t like the way some or all of the information makes them appear? Granted, there are situations in which sensitive or personally identifiable information should be shielded from public view, but negative or incriminating information, or information that uncovers unfavorable information about a party, should not be closed off from the public simply because the parties wish it so. Ultimately, the difference between obtaining information in a court hearing and reading it in a document online is convenience, and the public should not be precluded from accessing information due to inconvenience.

In a recent case, Kurland et al v. ACE American Insurance Company et al, aggrieved plaintiffs petitioned a Maryland court to seal a contentious, three-year old case involving an insurance claim filed over their mold-infested home. In doing so, they also petitioned the search engines and website owners to efface the ugly paper trail emanating from this case.

Here, U.S. District Chief Judge James Bredar in Maryland took a strong stand in favor of transparency. “A party’s mere desire to keep information confidential does not suffice,” he wrote. The bar to seal depends on the type of document, Judge Bredar noted. Filings for or against summary judgment, for instance, must pass a First Amendment test, and proponents must “proffer a compelling government interest and must show that the proposed sealing is narrowly tailored to serve that interest.” Judge Bredar found that in this case, the plaintiffs failed to meet even the lower standard for non-dispositive documents. The Kurlands “chose to air their grievance in a public forum, the records of which are public and presumed to be transparent to the public,” the judge wrote.

In a Law.com article about the Kurland case, journalist Jenna Greene bemoaned the willingness of American litigants to request the sealing of records in cases. After all, if the parties choose to take their disputes to a public forum, why should they have the benefit of concealing unflattering information about it? As Jenna notes, “to close off so much of a fight simply because the parties prefer it that way strikes me as an abdication of a court’s duty to the public.”

The Importance of Open Access to Court Records

1. The public availability of court records is essential to the public’s understanding of issues that affect them and the American judicial system.

Quite simply, access to court records enhances the public’s understanding of significant cases that impact their lives and the law of our nation. Making court records public helps the general populace become educated about how our judicial system works. This is important not only because it empowers individuals, but also because it can help our judiciary run more smoothly by keeping petty litigation off judicial dockets: When people are equipped to handle their own legal disputes, only the big-ticket legal issues remain for seasoned attorneys to handle.

Further, the publication of court records sheds light on the actions of various parties to litigation, the attorneys involved, and the judiciary. Above all, this discourages corruption and obfuscation by promoting transparency among those who carry the mantle of justice. We have previously discussed the importance of transparency among public officials, and this call for accountability transfers to the parties and judges in cases. By piercing the shroud of secrecy that surrounds cases, we expose all actions and omissions by litigants and judges, shine light on malfeasance and obstruction of justice, and secure the health of our judiciary.

2. The concept of public access to judicial records is a principle of law that the United States Supreme Court has long supported.

The highest Court in the land has recognized that the public has a fundamental and constitutional right to access both criminal and civil judicial proceedings: The First Amendment guarantees access to judicial proceedings and the court records of these proceedings, and the Court historically has opined that open access to records and activities is vital to a thriving democracy.

In a similar vein, our society generally values shedding light on the activities of our judicial and public officials. Resources like SCOTUS Blog and Justia also provide a bank of case law that is free to for the public to access and review. Keeping certain cases or portions of cases closed is not consistent with the American tradition of making the law accessible to the public.

3. Access to court records encourages honesty and openness in American media.

Throughout history, court records have provided news agencies with some of their most reliable sources of information for reporting on lawsuits and matters of public concern. The New York Times relied upon court documents that raised concerns about the safety of certain pesticides manufactured by the agricultural giant Monsanto. Similarly, a reporter recently relied upon public court records to show that certain members of the Bureau of Alcohol, Tobacco, Firearms and Explosives engaged in undisclosed and suspicious cigarette sales to funnel tens of millions of dollars into a covert bank account.

The public has a right to know about practices that may be harmful to them. Giving the media access to, and the right to promulgate information about, court records can save consumers from making dangerous or unhealthy purchases or from supporting organizations with questionable moral cultures.

4. Sealing court records is no longer necessary.

There are ample measures to ensure that particularly sensitive information is shielded from public view. As such, sealing off an entire docket in a case is not only unnecessary, but is an overbroad measure. Most notably, personally identifiable information can simply be redacted from filings. The local rules in virtually all courts require redaction of certain information like social security numbers, EIN numbers, dates of birth, and more.

For items that are not easily redactable, though, parties still have recourse: If a court record contains sensitive information that the parties legitimately want to shield from public view, courts have a procedure whereby the record can be sealed upon the proper application.

UniCourt’s Role in Promoting Access to Justice

UniCourt is committed to making all court records available to the public and just a Google search away. We allow users to search and track cases, look up parties for background checks, and help connect attorneys, parties, and judges with our legal analytics and litigation trends. We will continue promoting a culture of transparency and accountability in our courts and providing added value to the public to help make better data driven decisions.

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