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FOI Columns
Return to The FOI Center
March-April 2003
Courts slamming doors on media and public access
by Jennifer LaFleur
Those of us who are caught up in tracking the latest secrecy moves by the new Department of Homeland Security or worrying about what data some government agencies may have removed from their Web sites, need to add another item to our watch list of processes chipping away at media access: the courts.
In the name of privacy and security, access to documents, proceedings and electronic records are coming under tighter scrutiny in courts at all levels.
From hearings for the alleged Washington, D.C.-area snipers to immigration hearings for U.S. citizens detained since Sept. 11, reporters trying to inform the public about the justice system are increasingly running into closed doors.
Closed hearings
Although subsequent hearings have been open to the public and press, the original pretrial hearing for accused sniper John Lee Malvo was closed.
Malvo, along with John Allen Muhammad, is accused of shooting 19 people, killing 13 and wounding six in Alabama, Georgia, Louisiana, Maryland, Virginia and Washington, D.C.
A judge denied media requests to attend Malvo's November hearing, which resulted in his detainment. But another judge refused to close Malvo's preliminary hearing in January. Camera access to proceedings has been spotty in the sniper proceedings. Most recently, a judge banned camera access to the hearing to determine Malvo's court date.
Malvo's alleged accomplice, Muhammad, is scheduled to go on trial in Prince William County in October. The judge there has ruled against allowing TV cameras, but will allow still camera access.
Immigration hearings for those detained since the Sept. 11 terrorist attacks also are slamming shut.
In September 2001, Chief Immigration Judge Michael Creppy issued a memorandum closing access to all "special interest " immigration cases.
Two federal appeals circuits are in conflict whether or not such hearings should be open. One, a federal appeals court in Cincinnati, ruled that proceedings for Rabih Haddad, the Lebanese co- founder of an Islamic charity, should be open to the press and the public. In late January, the Sixth Circuit denied the government's request for a rehearing by the full court.
But another federal appeals court in Philadelphia said deportation proceedings should not be public.
Under seal
Important information hidden under seal by courts has prevented many important stories from coming to the forefront. Settlements between the Catholic Church and victims of sexual abuse by priests were tucked away under seal until only recently. Settlements between manufacturers and consumers have kept safety problems under wraps and out of news reports.
In some cases, those documents have been opened. In fact, federal judges in South Carolina adopted a new rule that bans secret settlements. The rule applies to all federal district courts in South Carolina.
But in other cases, important information remains hidden in court files.
Court records will remain sealed in the high- profile case of Stephen Roach, a former Cincinnati police officer acquitted of criminal charges for the shooting death of a 19-year-old, unarmed African American male, Timothy Thomas, that led to city riots in April 2001.
The Dec. 31, 2002, decision by the Ohio Court of Appeals ended The Cincinnati Enquirer's yearlong battle to obtain access to the court records.
Access to jurors
When the initial trial for Fred Neulander, a rabbi and former community leader accused of murdering his wife in Camden County, N.J. , ended in a hung jury in November 2001, the judge ordered that journalists could not contact or interview discharged jurors.
The Philadelphia Inquirer challenged the court's order and lost at the trial court level. On appeal, the New Jersey Supreme Court affirmed the lower court's decision and expanded the order to prohibit communications with the press initiated by the discharged jurors. It reasoned that it was necessary to ban juror interviews to prevent the prosecution from obtaining an unfair advantage in the retrial of the defendant by the disclosure of information regarding the jury's deliberations.
In a friend-of-the-court brief filed by The Reporters Committee for Freedom of the Press, several media groups urged the U.S. Supreme Court to accept the Inquirer's petition for review of the case. The brief contends that the court's order prohibiting juror interviews was an unconstitutional prior restraint that "severely restricts the First Amendment rights of the press and limits the exchange of information about the administration of justice in our society. "
Although after media intervened the court vacated its order, the Missouri Supreme Court established rules that would have closed access to juror lists and will continue to close access to juror questionnaires in Missouri.
Electronic access
Access to electronic court records is at a pivotal point as courts decide what they will and will not make available.
Starting in 2001, the Justice Management Institute and the National Center for State Courts developed a model on electronic access to court records. The groups listened to testimony from those advocating for open access to online court records and those who claimed that stalkers could use court information to invade individuals' privacy.
According to an analysis by The Reporters Committee, the guidelines the organizations produced do not provide for public access. The guidelines actually have the potential to discourage states from making court records fully avail- able electronically.
In October 2002, reporters for WOAI-San Antonio (formerly KMOL) used electronic court records to show that thousands of accused criminals in Bexar County, Texas, were getting off the hook because the justice system there couldn't process their cases fast enough. (See The IRE Journal , November-December 2002. )
The Tulsa World has asked a federal judge to make public a database of police data including officers names, complaints, pedestrian stops and other information created as part of a settlement in a police discrimination lawsuit. A hearing was held Jan. 29.
Access to such information is important to the newspaper.
When the World wanted to look at juvenile court outcomes, reporters had to build their own database using paper records. Reporters requested a redacted version of the database, but an exemption in the open records law allowed the courts to withhold the data.
"If I had the database, we really could have had a clearer picture of how the system was working, " said Ziva Branstetter, projects editor for the World.
"A court record is one of the most fundamentally public records in our society, " Branstetter said. "You're talking about taking someone's freedom in a criminal case or someone's money in civil. The public has a right to know how the courts are operating. "
Jennifer LaFleur is the McCormick Tribune Foundation journalism fellow at The Reporters Committee for Freedom of the Press. She is chairman of IRE's First Amendment Task Force and a former training director for IRE.
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