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February 2011

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This article is in the news archives --- for current news go to the Third Branch News.

 

Pocket Guide for Federal Judges Focuses on Sealed Records, Proceedings


A recently published pocket guide for federal judges focuses on the occasional need to seal court records and proceedings.

Published by the Federal Judicial Center, the 22-page pocket guide draws upon the voluminous case law the process courts use to keep some of their proceedings and records confidential.

“Essential to the rule of law is the public performance of the judicial function,” the guide states. “On occasion, however, there are good reasons for courts to keep parts of some proceedings confidential…. Usually that means that any transcript made of the proceeding will be regarded as a sealed record.”

"…whether a judicial record should be sealed depends on the judgment and discretion of the presiding judge… The court has discretion to weigh the need for secrecy against the public's right of access."

Protecting the confidentiality of national security information, ongoing investigations, trade secrets, and the identities of minors are examples of such good reasons, the guide said.

In addition, grand jury proceedings are held in secret to protect those not charged with crimes. And actions filed under the federal False Claims Act, in which persons allege that a fraud has been perpetrated against the government, are initially sealed without notice to the defendant.

The guide offers a procedural checklist of considerations when a record is sealed or a proceeding closed to the public:

  • Absent authorization by statute or rule, permission to seal must be given by a judicial officer.

  • Motions to seal should be publicly docketed.

  • Members of the news media and the public must be afforded an opportunity to be heard on motions to seal.

  • There should be a public record of permission to seal.

  • Sealing should be no more extensive than necessary.

  • The record of what is sealed and why should be complete for appellate review.

  • Records should be unsealed when the need for sealing expires.

“In the end, whether a judicial record should be sealed depends on the judgment and discretion of the presiding judge…. The court has discretion to weigh the need for secrecy against the public’s right of access,” the guide said. “Court records should be sealed to keep confidential only what must be kept secret, temporarily or permanently, as the situation requires. Sealing of judicial records is not considered appropriate
if it is done merely to protect parties from embarrassment.”

The guide is available online at http://www.fjc.gov/public/pdf.nsf/lookup/sealing_guide.pdf/$file/sealing_guide.pdf.

The Judicial Conference voted in March 2009 to make the existence of federal court sealed cases more readily apparent by having Internet-based lists of civil and criminal cases in district courts include a case number and generic name, such as Sealed vs. Sealed, for each sealed case.

Some courts previously had not included sealed cases on their docket lists.