PRESS RELEASE: The Reporters Committee for Freedom of the Press

FOR IMMEDIATE RELEASE -- Contact: Lucy Dalglish, (703) 807-2100; cell: (301) 379-5619

Hidden docketing system keeps hundreds of cases shrouded in nation's capital
March 4, 2006

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Defendants in more than 450 criminal cases in U.S. District Court in Washington, D.C., have been indicted and in many cases prosecuted, tried and sentenced to jail in complete secrecy during the past five years, an investigation by The Reporters Committee for Freedom of the Press shows.

During the five-year period ending Dec. 30, an average of 18 percent of nearly 3,000 federal criminal cases were not docketed in Washington, D.C., leaving the public in the dark about the cases' existence and unable to challenge the secrecy. Off-the-docket cases are different from sealed cases, which are assigned case numbers that appear on the public docket.

The findings are reported in the cover story of the winter issue of the Reporters Committee's quarterly magazine, The News Media & the Law.

The incomplete dockets raise important public policy concerns about open court proceedings, an attribute of English and American trials for centuries. U.S. Courts of Appeals the Eleventh Circuit -- covering federal district courts in Alabama, Georgia and Florida, and in the Second Circuit -- covering Connecticut, New York and Vermont, have ruled secret docketing unconstitutional because it infringes on the right of the public and the press to access criminal proceedings.

"Over the last five years, we had a sense that criminal cases were disappearing," said Executive Director Lucy A. Dalglish. "But we were astonished at how many there are. What this means is that we have federal convicts sitting in prison and there is no public track record of how they got there. That's not how democracy is supposed to work."

The Reporters Committee found the hidden cases by searching the court's entire criminal and civil docket from Jan. 1, 2001, to Dec. 30, 2005. Undocketed civil cases were so few -- 65 of more than 12,000 -- as to be statistically insignificant. The U.S. District Court in Washington, D.C., is one of 94 federal trial courts nationwide.

The Reporters Committee is a nonprofit association that provides legal defense and advocacy services to journalists working in the United States. It hosts a 24-hour legal hotline for journalists, refers journalists to pro bono lawyers in all 50 states, publishes reports, a magazine and newsletter and a Web site, and manages a fellowship and internship program for young lawyers and journalists.

In search of the secret docket

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When a federal judge tells you in front of 150 people that your claim - that there are hundreds of secret criminal cases in U.S. District Court in Washington, D.C. - is ridiculous, you're motivated to make sure you've got your facts straight.

U.S. District Judge Royce Lamberth publicly scolded me during a public forum at a December conference "Confidentiality in the Courts and Media " the Gathering Storm," co-sponsored by The Reporters Committee for Freedom of the Press.

He said there are only two types of "secret" cases in federal courts - those that involve civil False Claim Act cases and criminal cases involving guilty pleas that are unsealed after sentencing. All cases eventually become public, Lamberth said. I think the judge truly believes there is not a secret federal district court docket in Washington, D.C.

Reporters Committee legal fellow Susan Burgess and I exchanged incredulous looks when Lamberth said there are no secret cases in the federal courts. By that time, we knew that there were more than 460 of them in the District of Columbia federal court over the previous five years. So I sent journalfellow Kirsten Mitchell and intern Melanie Marquez back to the clerk of court's office to double check their work.

The scary truth is that once a case is off the public docket in U.S. District Court in Washington, it's likely to remain that way forever. Even after defendants have served prison sentences, witnesses have died or informants have gone into witness protection, the court won't transfer a case to the public docket unless someone - prosecutors or an interested member of the public - petitions the court to do so.

But how do you petition the court to open a case if you don't know it exists?

An open court system is a hallmark of democracy. Alexander Hamilton wrote in Federalist No. 84 more than two centuries ago that a policy that allows "confinement of the person, by secretly hurrying him to jail, where his sufferings are unknown or forgotten" is a "dangerous engine of arbitrary government."

Hamilton's warning is as valid today as it was when this nation was founded. We hope that reporters around the country will use our "How we did it" guide to do similar investigations in their local federal courts.

Disappearing dockets
When public dockets have holes, the public's right to open judicial proceedings is jeopardized.
By Kirsten B. Mitchell and Susan Burgess

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It was a novel defense by any stretch of the imagination: Julio, a.k.a. Pepe - he was known as both in the Colombian drug world - rebuffed an alleged deal that would have shaved time off his prison sentence if he paid $30 million-plus to federal drug informants.

To help prove his case - and the alleged massive U.S. government conspiracy - Fabio Ochoa-Vasquez, as he is known to U.S. prosecutors, wanted access to court documents in the case of Colombian drug lord Nicolas Bergonzoli, who could testify firsthand about the government's alleged corruption scheme.

But there was a problem. Bergonzoli was prosecuted, convicted, sentenced and imprisoned in total secrecy, hampering Ochoa-Vasquez's trial preparation. Bergonzoli's case was so secret, it wasn't even listed as "SEALED." The case number - 99-00196-CR - was missing from the public docket at the federal courthouse.

The case simply didn't exist.

The U.S. District Court in Miami, where both men went on trial, isn't unique. During the past five years, 469 cases in U.S. District Court in Washington, D.C., have been prosecuted and tried in complete secrecy, with no public knowledge even of the cases' existence and no way for the public to challenge the secrecy.

The Reporters Committee for Freedom of the Press found the cases by searching the court's entire civil and criminal docket for the past five years. During the five-year period ending Dec. 30, an average of 18 percent of nearly 3,000 criminal cases were not docketed in Washington's U.S. District Court - one of 94 federal courts nationwide. Undocketed civil cases were so few - 65 of more than 12,000 - as to be statistically insignificant.

Many, if not all, of the civil off-the-docket cases are believed to be whistle blower suits filed under the federal False Claims Act, which allows private citizens to sue on behalf of the U.S. government charging fraud by government contractors and other entities receiving or using government money. By law, such qui tam suits are filed under seal for 60 days while the government decides whether to intervene in the case, allowing time to investigate the alleged wrongdoing without the company knowing. After two months, such suits may or may not appear on the docket.

Cases missing from the criminal docket are typically gang-related prosecutions that tend to culminate in multi-defendant drug and murder conspiracy trials, say court officials and lawyers with access to the cases who were interviewed for this story. Very few, if any, of the cases are terrorism related, they say.

The incomplete public dockets raise important public policy concerns about openness to court proceedings, an attribute of English and American trials for centuries.

Although neither the U.S. Supreme Court nor the U.S. Court of Appeals in Washington, D.C., has ruled on the issue, two federal appellate courts have ruled secret docketing unconstitutional.

Off the docket v. sealed

Keeping cases off the docket - and off the public record - is different from sealing cases. The only way to determine the existence of off-the-docket cases is to scroll through public dockets searching for missing case numbers.

Sealed cases are assigned case numbers that appear on the public docket. Some 12 percent of cases, the vast majority of them criminal, were listed as "SEALED" in U.S. District Court in Washington, D.C., according to a June 2005 search of the U.S. Party/Case Index, an electronic federal court records database. All of those "SEALED" cases were assigned public docket numbers, allowing the public to know that they exist.

"You must disclose that a case exists and is moving through the courts. If you don't do that, you can't have monitoring by the public, press, or different government agencies on what these cases are all about," said Dan Christensen, a reporter who broke the 2003 story of Mohamed K. Bellahouel, an Algerian-born U.S. resident detained secretly for five months after the Sept. 11 attacks. Christensen, a former Miami Daily Business Review reporter now with The Miami Herald, spotted the case after its docket number disappeared from the public record. (Shrouded in secrecy, Bellahouel's case went all the way to the U.S. Supreme Court, which declined to hear the case in 2004.)

In Washington's federal district court, most off-the-docket criminal cases were kept off the public docket after prosecutors asked judges to seal the cases, according to those who handle such cases.

While Justice Department guidelines recognize a strong presumption against closing criminal proceedings and outline limited reasons allowing for closure, they don't specifically address nonpublic docketing.

Both the department's arguments for and the judge's approval of sealing an undocketed case are shielded from public view, making it impossible to know whether the guidelines are followed. What's more, the U.S. Attorney's Office in Washington does not monitor how many requests it makes to seal cases or how many requests are approved.

Prosecutors seek to seal cases in part to protect ongoing investigations by the government with an eye toward nabbing more criminals and keeping informants and witnesses alive, said Stevan E. Bunnell, chief of the Criminal Division at the U.S. Department of Justice.

Under the department's "Policy with Regard to Open Judicial Proceedings," requests to seal cases must be approved by a deputy attorney general, a sufficiently burdensome and time-consuming process that prosecutors are reluctant to do unless they really need to, Bunnell said.

The guidelines say that proceedings may be closed if failure to close them will produce "a substantial likelihood and imminent danger to the safety of parties, witnesses, or other persons."

In the nation's capital, "there are people who would be in serious danger, who would be killed, if it was known they cooperated with the government," said an official with the Office of the Federal Public Defender for the District of Columbia. "And all the stake holders in the situation understand that and so the case is sealed to protect the individual."

A former public defender who requested anonymity said "when a case is not even docketed, that presumably reflects a decision by a judge that the existence of a case on the docket - even without more identifying information - could be detrimental to the government's investigation or the safety of the defendant, although one may tend to view that rationale with skepticism from the perspective of the public's right to know."

In Washington, a 67-square-mile city sharply divided by income, education levels and race, the bulk of criminal investigations take place in a small geographic area, increasing the likelihood that cooperators will run into the people that they have informed on.

At one point, prosecutors noticed that criminals used public court records to spot cases in which nothing had happened since an arrest. The criminals, correctly concluding that defendants in such cases were cooperating, often retaliated by killing them, said an official with the U.S. Attorney's Office.

"In 30 years, I don't know how many gangs I've seen prosecuted. There's the K Street gang, the L Street gang, the M Street gang and on and on," said one court official who did not want to be named because he does not speak for the court. "I think there's a heightened concern by this court over the health and welfare of witnesses."

That plays out in the number of off-the-docket criminal cases, which has risen in recent years  from a low of 79 in 2003 to a high of 111 in 2005.

The vault

How do off-the-docket cases end up in the secret vault?

All cases - public and secret - are randomly assigned to one of 21 federal judges in Washington and then sent by those judges to the clerk's office where clerks enter the cases into the docketing system. The judge will have specified any cases that are to be kept off the docket. Cases that are off the public docket are entered in a section of the docketing system closed to the public and even to some employees of the clerk's office. No note is made in the public docket that the cases even exist.

While Chief Judge Thomas F. Hogan does not approve non-docketed criminal cases, he does review civil cases that are not on the public docket, according to Sheldon Snook, administrative assistant to the chief judge and spokesman for the court.

Court officials say the judges follow the "Rules for the U.S. District Court in Washington, D.C.," in sealing cases, but the rules, like the rules prosecutors follow, provide no procedures for keeping cases off the public docket.

And judges who agree to seal cases or keep them off the docket do not justify their actions publicly through a public order weighing the public's right to know against the need for secrecy.

But Snook said judges are careful not to abuse their power to shield entire cases from the public.

"The judges here in Washington, they are sensitive to the whole issue of sealing cases," he said. "There's a presumption that the court's business should be done in public."

All 21 U.S. District Court judges contacted by the Reporters Committee either did not return phone calls or declined to discuss secret docketing, referring all questions to Snook.

The federal district court's rules outline a process in which "(a)ny news organization or other interested person, other than a party or a subpoenaed witness" can apply to the court for "relief relating to any aspect of the proceedings in a criminal case." But, as Ochoa-Vasquez learned in defending his case, that is difficult or impossible when the only thing anyone knows about these cases is that they are not docketed.

Ochoa-Vasquez intervened in Bergonzoli's case and succeeded in unsealing a few docket entries in that case, but he was able to do that only because a record in U.S. District Court in Connecticut, where the indictment was first filed, contained the post-transfer case number assigned by the U.S. District Court in Florida.

The court record now reflects that Bergonzoli cooperated with the government, entered a plea agreement, and, on Jan. 30, 2002, was sentenced to just over three years in prison. But many key documents in the case remain sealed to this day. Bergonzoli was never called to testify in Ochoa-Vasquez's case.

In Washington, D.C., and many federal district courts nationwide, once off-the-docket cases have been entered on the secret docket, they don't go onto rows and rows of shelves holding burgeoning case files. They go straight to a vault in the clerk's office, shielded from the public and where few court employees have access.

Courts weigh in

Secret dockets have been ruled unconstitutional in the Eleventh Circuit - covering federal district courts in Alabama, Georgia and Florida - and in the Second Circuit, covering Connecticut, New York and Vermont.

In Ochoa-Vasquez's case, which was combined with Bergonzoli's case on appeal, the U.S. Court of Appeals in Atlanta (11th Cir.) ruled in October that sealed dockets violate the First Amendment. Magistrate judges in Ochoa-Vasquez's case had ordered transcripts and court orders related to a co-defendant not only sealed, but "held in the vault and not docketed," according to the appellate court ruling.

Although the U.S. District had since moved those documents to the public docket and unsealed many other documents at issue in the case, the three-judge appeals panel used its authority to weigh in on secret docketing.

Acknowledging that the issue was not properly before the court, "We nevertheless exercise our supervisorial authority to remind the district court that it cannot employ secret docketing procedures that we explicitly found unconstitutional" in United States v. Valenti in 1993. In that case, the court ruled that a dual docketing system, one public and one nonpublic, unconstitutionally infringed on the public and press' right of access to criminal proceedings.

"(P)ublic docket sheets are essential to provide 'meaningful access' to criminal proceedings," Judge B. Avant Edenfield, a visiting U.S. district judge from Savannah, Ga., wrote for the panel in Ochoa-Vasquez.

Dockets act "as both an index and a publication," Edenfield wrote. "As an index, the docket catalogues all the proceedings and information taken before a court in that case. It permits both the court and observers to locate documents and proceedings that otherwise would be lost within the court's vast record collections. It also allows one to quickly determine the status of a case, the actions of the parties, and the determinations of the judge, without requiring the inspection of every item in the case file. As a publication, the docket sheet provides the public and press with notice of case developments. This role assumes particular importance when the court is considering sealing a proceeding or judicial record."

The Reporters Committee for Freedom of the Press submitted a friend-of-the-court brief in the Ochoa-Vasquez case but took no position on anything other than courtroom openness.

The appellate court, which noted the centuries-old history of open criminal proceedings in England and America, affirmed Ochoa-Vasquez's conviction and sentence, ruling that he had not shown that he did not receive a fair trial because of the secret docketing or the court's failure to articulate its reasons for sealing documents.

The entire appellate court denied rehearing the case in January.

In the Valenti case, the 11th Circuit case cited by the Ochoa-Vasquez panel, a different three-judge panel ruled that a dual docketing system used in U.S. District Court in Tampa violated the public's First Amendment right of access to criminal proceedings by rendering it impossible for anyone to exercise that right. The public and the press had no knowledge that the case at issue  which involved conspiracy, extortion and bribery charges against a Florida defense attorney and an assistant state attorney  even existed.

Judge Joseph W. Hatchett wrote for a unanimous three-judge panel that the "maintenance of a public and a sealed docket is inconsistent with affording the various interests of the public and the press meaningful access to criminal proceedings" and that the "dual-docketing system can effectively preclude the public and the press from seeking to exercise their constitutional right of access to the transcripts of closed bench conferences."

The U.S. Court of Appeals in New York City (2nd Cir.) similarly ruled in 2004 that the press and public have a qualified First Amendment right to inspect docket sheets. Writing for a unanimous three-judge panel in The Hartford Courant Co. v. Pellegrino, Judge Robert A. Katzmann explained that "the ability of the public and press to attend civil and criminal cases would be merely theoretical if the information provided by docket sheets were inaccessible."

"(T)he docketing of a hearing on sealing provides effective notice to the public that it may occur," Katzmann wrote.

Striking down the Connecticut state court's secret docketing system, the panel reasoned that both history and logic support the finding of a presumptive First Amendment right to access court dockets. As early as the 1800s, the court explained, English dockets were open to the public, as demonstrated by the definition of the word "docket" in Thomas E. Tomlins' "Law Dictionary" of 1809: "[w]hen rolls of judgments are brought into (Common Bench) they are docketted, and entered on the docket of that term; so that upon any occasion you may soon find out a judgment, by searching these dockets, if you know the attorney's name." And in the United States, the court noted, early legislatures passed state laws mandating the use of open docket books to permit public viewing and copying.

The public policy behind a First Amendment right to court proceedings supports an open docket system as well, the court said. "Precisely because docket sheets provide a map of the proceedings in the underlying cases, their availability greatly enhances the appearance of fairness. They have also been used to reveal potential judicial biases or conflicts of interest," Katzmann wrote. "In addition, docket sheets furnish an 'opportunity both for understanding the system in general and its workings in a particular case.' By inspecting materials like docket sheets, the public can discern the prevalence of certain types of cases, the nature of the parties to particular kinds of actions, information about the settlement rates in different areas of law, and the types of materials that are likely to be sealed."

Katzmann explicitly noted, however, that the presumptive openness of docket sheets could be rebutted "upon demonstration that suppression is essential to preserve higher values and is narrowly tailored to serve that interest." For instance, if the government alleges an "extraordinary situation" where "'an individual might be (put) at risk' from public docketing, the district court may take steps to protect the privacy interests involved." This did not mean, however, that courts could withhold all information about the case's existence from the public docket, only that identifying information could be withheld if it was necessary to protect the privacy interests at stake.

The Reporters Committee also filed a friend-of-the-court brief in the Courant case.

Changes

Under Connecticut's old system of sealing, parties to cases could request that everything about the case be sealed and kept off the docket; that only the docket number but no other information be made public; or that both the docket number and parties' names, but nothing else, be public.

Secret docketing no longer exists in Connecticut. The state's Superior Court judges adopted new rules abolishing the use of secret dockets as a result of The Hartford Courant case and a subsequent legislative investigation, said Dan Klau, attorney for The Connecticut Law Tribune, one of the plaintiffs in the case. The rules incorporate the state high court's standard for sealing cases, which dictates that a judge must give notice when he considers sealing something and an opportunity for the public to speak out against closure.

The judicial branch also added a section to its Web site listing all sealing motions on a court calendar.

Before the docketing procedures were revised, some Connecticut courts were keeping cases off the docket at the request of litigants because some judges incorrectly believed that keeping the case off the docket was a reasonable way to seal the case, Klau said.

"There was a real lack of understanding of the constitutional limitations when it comes to sealing files," he said, "and as a result of the case, judges have a much more heightened awareness of the constitutional standards that must be met when you seal something."

Sheryl Loesch, the clerk of court in Florida's middle district - which covers a broad swath of central Florida from Jacksonville to Tampa, said that secret docketing also is a thing of the past in federal courthouses there. All cases, even those that are completely sealed, are on a public docket sheet, she said.

But an electronic search of the criminal docket for the U.S. District Court in Tampa found that between Oct. 20, when the 11th Circuit ruled in Ochoa-Vasquez, and Feb. 10, there were 11 of 175 criminal cases missing from the docket, suggesting that at least in Tampa, secret docketing continues. Court staff in the middle district explained that those docket numbers are assigned to sealed criminal cases that are stored in a vault until they become public. But it is unclear when - or if - those cases will be made public.

It also is unclear whether federal district courts in southern Florida have changed their practices. Clerk of Court Clarence Maddox did not return several telephone calls and e-mail messages, and it is impossible to run docket reports remotely because the state's Southern District does not yet use Case Management/Electronic Case Files, the Web-based case management system used by most federal bankruptcy and district courts.

"There's no way to know if there's been a change," said G. Richard Strafer, one of Ochoa-Vasquez's defense attorneys. "Most judges may be less inclined to go along with prosecutors' requests (for secret docketing), but how you ever know that - that's the problem with this."

Christensen shared Strafer's skepticism, recalling the coincidences that led him to uncover the secret docketing in southern Florida's federal district courts. "The nature of this is that you may never know that something is going on," he said. "There are cases going on in secret and you wouldn't even know to ask a question in the first place."

Ochoa-Vasquez's case illustrates several problems caused by undocketed cases, including defendants' inability to confront their accused when government cooperation programs shield the people who outed them, and the public's inability to learn about allegations of corrupt government prosecutors, Strafer said.

The case, "was a perfect source of material for an investigative reporter to dig into - (but) it took years to unearth it all and since the revelations were so piecemeal, no reporters really got into it. The sealing helped prevent the public and the media from doing their job. There's a corrupt sentencing program that the government has admitted to - you'd think there would be judges upset they'd been bamboozled by the government's own attorneys."

None of the federal courts' oversight agencies have dictated any rules regarding secret dockets for the nation's 94 federal courts. The Judicial Conference of the United States, a committee of federal judges who set policy for the federal courts, has never officially addressed the issue, said Bob Deyling, assistant general counsel at the Administrative Office of the U.S. Courts. The office, which does not monitor courts' docketing procedures, expects courts to administer their dockets independently.

Even if district courts tracked such data, they would not necessarily report on it, said David Sellers, the office's assistant director of public affairs.

And in Washington, D.C., the federal court's Rules Committee, a panel of lawyers that advises the court on its rules, has not dealt with secret docketing, Snook said.

Once and forever

Once a case is off the public docket in U.S. District Court in Washington, D.C., it's likely to remain that way forever. In some cases, a judge may order a case sealed for a particular amount of time - say two years - unless the parties seek to keep it sealed longer. But in most cases, there's no such provision.

Even after defendants have served prison sentences, witnesses have died or informants have gone into witness protection, the court won't transfer a case to the public docket unless someone - prosecutors or an interested member of the public - petitions the court to do so.

"The court would not arbitrarily lift a seal without being asked," Snook said.

Nor does the D.C. U.S. Attorney's Office review cases it has requested be kept off the public docket. "From a cooperator's perspective, there's almost never a reason to unseal his or her case," said a former public defender. "Depending on the case, a cooperator may face potential danger both in prison and after he or she returns to the community. A defense lawyer in these circumstances has a duty to try to protect his or her client to the maximum extent possible."

That means that even after a case ends, the public remains completely in the dark about defendants prosecuted, tried and sentenced in a court system based for centuries on judicial openness. The cases, for all intents and purposes, simply do not exist. Stacey Sutton, an attorney who filed a brief on behalf of the American Civil Liberties Union in Ochoa-Vasquez's case, is troubled by that.

"It's a bedrock of our constitutional system that courts are open to the public," she said. "That there are entire cases closed to the public is inherently adverse to our system."

A summary of the docket listings in U.S. District Court in Washington, D.C.

Finding hidden dockets

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Tracking missing cases in the federal courts isn't difficult, it just takes time. And if you don't do the work in the federal clerk's office, it costs.

Either way, become familiar with the Case Management/Electronic Case Files, or CM/ECF, a Web-based case management system used by most federal bankruptcy and district courts. Some courts provide only civil case information on CM/ECF.

A handful of district courts are not yet using the system: the southern district of California, the southern district of Florida, Montana, Nevada, New Mexico, North Dakota, the eastern district of Oklahoma, and the western district of Texas. Reporters interested in those courts can still track missing cases by reviewing the dockets at the courthouse using the principles outlined here for electronic searches.

If you want to access CM/ECF without leaving your newsroom or home computer, you must register with PACER, or Public Access to Court Electronic Records. It's free to register, but costs 8 cents per page to run reports, with a cap of $2.40 per document.

For more information and to register, go to http://pacer.psc.uscourts.gov/

Accessing CM/ECF in the clerk's office costs nothing - and it has the added advantage of clerks who can help navigate the computer system, which is user friendly.

Either way, go to the CM/ECF Web site for the court you are interested in. The site http://www.uscourts.gov/allinks.html provides links to all federal district and appellate courts.

Once you are on the court's CM/ECF site, click on "Reports," then choose either "Civil" or "Criminal." For criminal cases, be sure to include all four types of defendants under "Case Flags": "Pending, Terminated, Fugitive and Non-fugitive." For civil cases, be sure to include both open and closed cases.

Choose an office - for example, White Plains or Foley Square, Manhattan, for the southern district of New York - and highlight "Criminal" under "Case types."

Then plug in the dates you are searching for and click on "Run Report." (We searched month by month from Jan. 1, 2001, to Dec. 31, 2005.)

A report will come up with the docket numbers for the time period searched. The docket numbers are sequential by year. For example, the first criminal case of 2005 is listed as 1:05-cr-0001, the second as 1:05-cr-0002 and so on. The first several numbers are likely to be old cases that were reopened in the time frame searched.

Read through the reports, searching for missing docket numbers. Then, to double check that the dockets are indeed missing, click on "Query" and enter each of the missing docket numbers. If the case is missing, the computer will tell you "No such case" or "Not a valid case number."

After we came up with 469 missing criminal cases and 65 missing civil cases over the five-year period, we presented the intake records clerk with a list of the missing docket numbers. He entered a dozen or so in his computer and confirmed that the cases were completely sealed from the public - and were being kept off the docket.

"The case you specified is SEALED and you are not authorized to see it," the computer on clerk Mike Darby's desk told him.

That's because only certain docket clerks - Darby is not one of them - have access to the section of the computer system used for docketing hidden cases.

And where do the case files of these super-secret cases go? In D.C.'s District Court, they go to what everyone in the courthouse calls "the vault," though they declined to elaborate.

Kirsten B. Mitchell

Melanie Marquez contributed research to this project.

The current issue of The News Media & The Law

Courts curbing public access to records
By Sue Lindsay, Rocky Mountain News, March 8, 2006

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Courthouses across the state are limiting public access to court files as a means of coping with budget reductions.

Officials say they are under orders from the chief justice to remove confidential information from files but don't have staff to do the work.

"The problem is the caseload keeps going up and staffing isn't keeping pace," said Laurie McKager, court administrator for the 18th Judicial District in Arapahoe County. "We have to focus our resources on the things that absolutely have to get done."

As a result, many jurisdictions are limiting access to divorce and probate files to those involved in the cases. Some have put restrictions on other files.

Steve Zansberg, lawyer for the Colorado Press Association, said that such policies undermine core constitutional foundations.

"You should not have to petition the court to see a file. There is a presumption of access, that everything is open, unless you show why they should be closed," Zansberg said.

Restrictions on public viewing of files were prompted by an order from Colorado Chief Justice Mary Mullarkey in April that directed each district to comply with laws protecting confidential information.

But staffers don't have time to remove the information from case files, especially when more cases are filed each year, judges said.

"We're trying to comply with what our understanding is of the statutory requirements," Mullarkey said. "Certainly we would like to be more responsive to the public need for access to records, and we are struggling with that."

Mullarkey noted that courts lost 300 positions statewide in budget cuts over the past few years.

"We want to make as much access available as we can while keeping in mind our primary function is to run the courts," said Justice Alex Martinez, chairman of the court's public access committee.

Martinez said that removal of confidential information eventually will be handled automatically with electronic filing. Meanwhile, each jurisdiction has been given leeway to develop its own plan.

"Hopefully in the meantime we will not do any damage by disclosing information about people that should not be disclosed or concealing any information that concerns us and how we operate," he said.

In districts where divorce and probate cases are now closed, the general public must file a special request and then wait for the judge to approve the request and the staff to remove the information. They often also must pay fees for the service.

Restrictions, fees and delays already apply to sexual assault cases - policies that went into effect when laws were passed to protect the identity of victims.

The need to curtail access was prompted mainly by businesses requesting large number of files for commercial reasons, not the individual resident, Martinez said.

Ed Otte, executive director of the Colorado Press Association, said he is concerned that the sealing of the records is too broad.

"They are public records," he said. "This isn't just a press issue. . . . The public has a vital interest in knowing how the system works and whether or not there are abuses."

Zansberg questions whether court officials are going overboard in the categories of information they believe must be removed. The Colorado Court of Appeals has ruled that financial affidavits in ordinary divorces are not subject to sealing, he said.

After receiving the list of items deemed confidential in the chief justice's directive, Jefferson County Chief Judge Brooke Jackson said he contemplated closing all files.

"That solution, while simple and easy, would not be consistent with the idea of open access to courts, which I believe in strongly," he said.

So he crafted a policy which he called "thoughtful, practical and fair," providing "as much access as we felt we could handle."

Clerks receive requests for at least 100 files each day, he said.

"There is no way that our clerk's office has the time or manpower to go through thousands of files searching for and trying to remove or redact information listed in the (directive.) . . . The employees there are carrying the workloads, in some cases, of two people," Jackson said

In Jefferson County, civil and criminal cases filed after Jan. 1 are deemed "open" and no fees apply to viewing those cases. This also applies to "new" misdemeanor, traffic and small claims cases.

Many valid reasons exist for removing the information, Jackson said. "Identity theft and misuse is a major problem, and people who can gain access to court files can find a gold mine of opportunity in some of them if they look hard enough."

Chief Judge John Leopold, who presides over courts in Arapahoe, Douglas, Elbert and Lincoln counties, entered a similar order Jan. 6 that classified criminal and civil cases filed before Jan. 1 as "old" files subject to fees, including a $5 name search, 75 cents per page for copies and $20 an hour for redactions.

The fees later were rescinded for media requesting open civil and criminal cases filed before Jan. 1. But they still apply to other members of the public.

Otte said that fees should apply equally to the media and residents.

"The press represents the public when researching stories, but there shouldn't be a two-tier system," Otte said.

Jefferson County obtained an exemption on redacting information from "old" cases filed before Jan. 1, clerk Shirley Williams said.

"According to our procedure, these files would be open to anyone," she said.

Newly filed cases are screened and redacted as they come in.

"It is our goal to provide full public access to as many files as we possibly can," Williams said.

Delays in getting redacted files varies.

"It depends on what day or time of day the request is made, the work load at the time and the size of the file," McKager said. "We try to expedite it by getting people to tell us exactly what they are looking for. We can provide a couple of documents much easier than the entire file."

McKager said the new policy hasn't caused too many problems.

"There has not been as much reaction from (the) public as we thought there would be," she said.

Zansberg has asked Jackson to reconsider the policy of closing probate and divorce cases. He questions whether the courts have been inundated with requests for these types of files.

"I'm skeptical about how much of a burden on court staff these types of files are," he said. "There are much more narrowly tailored methods of protecting privacy interests than closing entire categories of files."

Open and shut

Colorado jurisdictions are restricting access to court files because of cost.

" Jurisdictions that have closed probate and divorce cases: Jefferson, Arapahoe, Adams and Mesa counties, as well as the 7th judicial district, which covers Gunnison and Montrose counties. Denver courts have not implemented any such policies.

" Typical fees to redact files: $20 to $30 an hour. Some jurisdictions also charge a $5 research fee to pull the case.

lindsays@RockyMountainNews.com or 303-892-5181

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