Should A Court Allow A Case To Disappear Entirely Because The Person Regrets Filing It?

from the public-records dept

We write about lots of nutty court cases around here, and semi-frequently, parties engaged in those lawsuits aren't always happy about our coverage. Not too long ago, we received a series of emails and phone calls and more from an individual who was involved in some lawsuits that we covered. Without providing too many details at all, the individual in question made a pretty straightforward case that he or she absolutely regretted filing the lawsuits, and provided some additional information about why it had happened, while also noting that the Google searches on this person's name were now linking to the few news stories that covered the lawsuit, including the court documents that we had posted. It was explained that these search results were making life difficult for this person who was trying to get his or her life back on track and believed that Google searches on the name were making it harder to find a job.

The story was compelling, and we were asked to remove our post as well as the links to the documents, something that we won't do. However, there was one intriguing bit to the communication, telling us that the court in question had "sealed the case" and asking us to respect that decision. That seemed odd to us. We've certainly seen filings sealed. And even some instances where almost all of the details in a docket were done under seal, but the case would still exist. Usually, though, those were cases involving at least a semi-plausible claim of national security. This was a case where someone just regretted filing questionable lawsuits (for a good reason). Even more amazing, after searching through PACER, it appeared that the judge in question did not just seal documents in the case, but made the entire case disappear. This happened for at least three cases. They do not exist in the court's electronic records system at all. It is as if the cases never happened at all.

This is not how the system is supposed to work. Public records are public records.

Through a lawyer, we reached out to the court directly to see if we could understand the decision to disappear the cases. An initial response was that it was done under local court rules. But when it was pointed out that the rules only allow for the sealing of certain documents, not the existence of the entire case, the court told us that it would answer no further questions because of the sealed nature of the case.

At this point, I'm somewhat stymied. Again, the individual in question has made a very credible case that the existence of these records is making it difficult for the person to move forward in life, and they truly regret the filings. They also have presented credible reasons for why the decision was made to file the cases in the first place. I honestly have no wish to further trouble this individual. I also will not delete our original post or the documents in question, because that, too, feels wrong. But we will not tell you who it is, and if you try to guess, you're probably wrong.

But... I'm still quite concerned about a court totally disappearing public records. I know of the three specific cases involving this one individual that have disappeared from the docket. But I have no idea if this is a standard practice of the court, and if it's made other cases disappear as well, without any public notice or explanation. The court says that it waited two weeks before sealing the dockets, in case anyone objected, but we had no way to know that this was even a possibility since it involved cases from a while back that we no longer follow. Some have suggested that we could go to court over this -- and there is precedent supporting our position, such as Company Doe v. Public Citizen. But, at least that case felt like one worth fighting for. I have little interest in dragging this particular individual back through a court process.

But, at the same time, I'm quite concerned about the idea that courts may be magically making dockets disappear, and know of no way to find out how often this practice is happening. Thus, I'm posting this, in part, to see what our readers think, and if there are other options out there on how to deal with these kinds of situations. I recognize that some will argue that we should reveal the specifics here, and that whoever filed the cases should live with that decision. And I'm sympathetic to that argument, but there are times when other arguments can make sense as well. So for this post, we will not be sharing that info. If we come across other such cases where the details are different, the calculus may be different as well.

Filed Under: dockets, pacer, public records, sealed cases

US Court System Just Another Extension Of The Government's Ongoing Opacity Project

from the nothing-checked,-little-balanced dept

FBI director James Comey and Manhattan DA Cyrus Vance say we're "going dark." Others more attuned to the vast amount of data generated by everyday life say the opposite. But US magistrate judge Stephen Wm. Smith, writing for Just Security and speaking from firsthand experience, says there's a real darkness out there, but it's government-generated and it's obscuring the inner workings of one of the few checks against government power.

Over the last 40 years, secrecy in all aspects of the judicial process has risen to literally unprecedented levels.

It's not just the FISA court -- which, in contrast, is probably more transparent than it's ever been. It's the regular court system where criminal prosecutions are pursued. Documents which used to be easily accessible by any member of the public are now withheld by the request of the government with alarming -- and increasing -- frequency.

That traditional aversion to court secrecy has been overcome in the last few decades. To take but one example, the case name In re Sealed Case first appeared in 1981; it is now the most common case name on the D.C. Circuit Court of Appeals docket.

The same law that gives the government warrantless access to citizens' electronic communications -- the Electronic Communications Privacy Act -- also gives the government the privilege of preventing service providers from disclosing any information about these requests to targeted users. This blanket opacity is a problem for several reasons (First and Fourth Amendment concerns), not the least of which is no one -- not even Congressional oversight -- can provide an accurate accounting of these requests and their accompanying gag orders.

How large is this secret ECPA docket? Extrapolating from a Federal Judicial Center study of 2006 federal case filings, I have estimated that more than 30,000 secret ECPA orders were issued that year alone. Given recent DOJ disclosures, the current annual volume is probably twice that number. And those figures do not include surveillance orders obtained by state and local authorities, who handle more than 15 times the number of felony investigations that the feds do. Based on that ratio, the annual rate of secret surveillance orders by federal and state courts combined could easily exceed half a million. Admittedly this is a guess; no one truly knows, least of all our lawmakers in Congress.

The courts may be acting as checks against government power. Or they may be acting as rubber stamps. Given the number of gag orders and sealed documents, it's impossible to make that call. The courts are supposed to act as a check against government overreach and the only way to verify they're actually performing this function is to allow the public to see warrants, orders, motions, responses, and other court documents. But the government has pretty much destroyed this part of the accountability process by abusing a multitude of transparency loopholes -- most of those linked to "national security" or protecting law enforcement means and methods.

The government far too routinely -- in far too many routine criminal prosecutions -- deploys gag orders, sealed documents, ex parte presentations, in camera submissions and other tactics like parallel construction to ensure the judicial playing field is never level. These same tactics also prevent the public from seeing what's being done in their name and with their tax dollars.

Smith also points to the inevitable consequences of the government leading by example: the desire to treat public forums as somehow private arenas has bled over to civil litigation as well.

The same FJC study found that 576 civil cases filed in 2006 were completely sealed, meaning that the public was denied any information about the case, including the docket sheet. Rationales for the blackout varied from weak (“the parties wanted them sealed,” “to protect physicians reputations,” “to protect a party’s credit rating”) to non-existent (“17 pro se actions,” “30 habeas corpus and prisoner actions,” “33 forfeitures and seizures”).

Many of those listed still have a government nexus, but even cases that have no government intersection other than the use of the court system will still routinely contain sealed documents.

Even the most mundane employment suit will have a docket sheet littered with “Sealed event” entries.

As Smith notes, the numbers provided by the study are far from comprehensive. To fully tally the number of civil cases with sealed documents would take an examination of nearly every suit filed in federal court. Redacted dockets and sealed documents are apparently just as common in the civil arena, a large number of which can also be attributed to direct government intervention.

It's not one administration or one branch. It's everyone and it's been trending towards opacity for over 30 years. The government desires power without responsibility. The worst part is that the courts appear to be allowing it.

Filed Under: court system, dc circuit, ecpa, in re sealed case, laws, opacity, public, sealed cases, transparency