Keeping secrets : Judges sometimes hide all aspects of civil lawsuits
Posted on Sunday, August 10, 2008
Can knowing about the mere existence of a lawsuit be damaging ?
Recently, Circuit Judge Xollie Duncan requested that reporters leave her courtroom. The reason: A hearing in a civil lawsuit. The suit had been filed under seal, which meant not only court filings were sealed, but the proceedings in June were held outside of the press and public.
Everything about the case — the names of the parties involved in the suit, even the case number — was at first withheld.
At that time, Duncan said it was the discretion of the court to seal the case and close the proceedings. Duncan said the parties convinced her there were legitimate reasons to seal the case.
Duncan later ordered that portions of this closed case be opened. The names of the parties involved in the suit were also released.
The case involves several stockholders in Vision Technologies — Robert B. Thornton, Bill Schwyhart, Richard M. Dunleavy, Michael Dunleavy, James Phillips and the Laura Duke Revocable Trust — suing the company’s CEO, Robert Lee Thompson, and Robert Lee Thompson Jr.
Portions of the suit were redacted. The suit seems more of a stockholders’ disagreement with leadership of the company than trade secrets or other sensitive information.
So why the need to seal the entire case ?
Duncan said internal financial documents led her to seal the case.
The attorneys agreed that the case should be closed.
“ I agree that when people invoke the jurisdiction of the court to solve a dispute, then most everything and anything should be open to public view with very few narrow exceptions, ” Duncan said.
The redacted case file is open to public view, but the internal financial documents remain under seal, Duncan said.
The proceedings in the case are also now open to the public and press, except if any matters presently under seal are discussed, Duncan said. Benton County
Benton County Circuit Court Clerk Brenda DeShields provided a list of the 22 civil case files that have been sealed in Benton County. She also provided copies of all the available orders sealing the cases.
She said the content of a sealed case cannot be released, but it is permissible to release the names of the parties involved in the suit.
Chief Deputy Circuit Clerk Bontia Stubbs said the cases will remain sealed until a judge orders that the suits not be sealed.
Several of the Benton County cases involve the Arkansas Department of Human Services. Certain DHS cases are sealed as required by Arkansas law, Duncan said.
Two of the suits include sex offenders contesting the risk level that they were assigned.
Circuit Judges John Scott and Tom Keith preside over some of the sealed cases.
Scott said he has sealed two cases. One involved a juvenile wanting to keep his name off the sex-offender registry.
Keith agreed that redacting files instead of sealing cases could be done in most cases to make the information available to the public.
“ We want to allow the release of as much information as possible without the release being harmful to the parties, ” Keith said. Washington County
Washington County has seven known civil cases that have been fully or partially sealed by a judge and are not being made available for public inspection.
Washington County Circuit Clerk Bette Stamps denied a request under the Arkansas Freedom of Information Act to provide the names of the parties or the case numbers on four of the civil case files in her office.
Stamps said she will not comply with the FOIA request for case numbers and names of the parties unless ordered by a judge to do so.
Stamps released the names of the parties in three of the seven closed cases after she and Washington County Attorney George Butler determined that only parts of those files are closed. She provided access to the documents sealing those three files, but this did not include orders explaining why the cases were closed.
Butler said there may be more cases that have sealed documents or sealed files, but the clerk is unaware of them and does not have a list.
Butler said the clerk cannot comply with this request because of provisions in Administrative Rule Number 19 of the Arkansas Supreme Court.
He said that Rule 19, under its definitions, states that confidential and sealed means the existence of the records may not be disclosed.
Stamps and Butler said they cannot release the parties or the case numbers because they believe this information is also sealed.
A second FOIA request for the files cited Part C of Section IV of Rule 19: “ If a court record, or part thereof, is rendered confidential by protective order, by this order, or otherwise by law, the confidential content shall be redacted, but there shall be a publicly accessible indication of the fact of redaction. ”
Butler said the sealed file is not a redaction.
“ These files are completely sealed, so there is nothing to redact; revealing case numbers and names would violate Administrative Order 19 — see definitions of sealed and confidential in the order, ” Butler wrote in his reply to the request.
Butler also responded: “ Your request cannot be complied with. Only a court can determine if a court went beyond its inherent authority or that a file should be unsealed. That is not a decision that I or the clerk can make. ” About sealed cases
J. D. Gingerich, director of the state’s Administrative Office of Courts, said his office does not keep track of any statistical information on the number of sealed cases filed in judicial districts across the state.
“ That’s not an issue for us, ” Gingerich said.
Butler concedes that state law provides no procedure for closing access to civil case files. Case law states that the courts have the power to seal entire files, he said.
“ The courts themselves have recognized they have the right, ” Butler said.
Richard Peltz, a law professor at the University of Arkansas at Little Rock Bowen School of Law, noted that sealing cases can be a confusing process.
“ It’s a little bit tricky and complicated process when it comes to sealing cases, ” Peltz said. “ The law provides that the courts will have a presumption of openness. ”
Peltz agrees that it may be necessary for judges to seal some cases, but he described the decision as a balancing act.
“ The problem in sealing cases is that it is not uncommon for both attorneys to come in and ask a judge to seal a suit, ” Peltz said. “ Both parties agree, and there’s no one there to object. The case is sealed, but that’s not how it is supposed to work. ”
Judges should balance the presumption of openness with whether the lawsuit should be sealed, Peltz said.
He questioned whether courts can seal cases and then refuse to provide orders explaining why the cases were sealed.
Courts sometimes seal cases when there is sensitive information — such as trade secrets or other confidential information — contained in the legal filings, said Scott Dodson, an assistant professor of law at the University of Arkansas School of Law in Fayetteville.
Courts will “ unseal a case file if the danger of damaging disclosure has passed, ” Dodson said.
Keith said it’s necessary at certain times to protect trade secrets or other proprietary information in lawsuits.
“ The matters are sealed to protect the interest of parties where publicizing the information will be extremely harmful, ” Keith said.
Scott agreed with Keith and said one of his biggest concerns is protecting trade secrets.
DeShields said the parties’ names and case numbers will be available when a case is sealed, unless otherwise ordered by a judge. There will be proof of a lawsuit’s existence.
She believes the content of a sealed case cannot be released, but it is permissible to release the names of the parties involved in the suit.
It means there will be proof of the existence of a sealed lawsuit in Benton County, but if Washington County refuses to release any information on sealed suits, then there’s no public record that the suit exists.
“ Judges should not seal cases without doing some analysis of necessity, ” Peltz said, “ because both the First Amendment and the American common-law tradition demand public access to the courts. ” What’s the issue ?
• Are records contained in civil-court case files available for public inspection ?
• Can documents or entire civil-case files be sealed ?
The Arkansas Freedom of Information Act does not specifically address which court records are public records. It provides an exemption for “ documents that are protected from disclosure by order or rule of court. ”
State law prohibits disclosure of all juvenile court records and provides a method for sealing criminal records after certain conditions are met, but the law does not specify if or how civilcase records may be sealed.
Case law provides that judges may seal records or entire case files to protect trade secrets, national security, and privacy concerns of juveniles, for example.
Administrative Rule Number 19 of the Arkansas Supreme Court, under its definitions, states that confidential and sealed means the existence of the records may not be disclosed.
The purpose of this order includes promoting access to court records. According to part C of Section IV of Rule 19: “ If a court record, or part thereof, is rendered confidential by protective order, by this order or otherwise by law, the confidential content shall be redacted, but there shall be a publicly accessible indication of the fact of redaction. ”
The Arkansas Supreme Court has ruled against closing files forever with no reason, as shown in its decision in Arkansas Department of Human Services v. Hardy: “ We said the inherent authority to seal parts of court files is tempered by the requirement that a request for sealing part of a file must be particularized, that there be some good cause for sealing part of that file, such as a trade secret, and it should be in effect for as long as is necessary to protect the specified interest. ”
Source: Staff reports
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