Comments Received by the Administrative Office of the United States Courts in response to Request for Comment on Privacy and Public Access to Electronic Case Files
Each comment has a number, date, and where provided, a geographical identifier. In cases where the comment was sent by an individual with no business or professional affiliation noted, the name of the commentor is not included. In cases where the comment was sent by an individual in a professional capacity or on behalf of a group or organization, the name of the commentor and/or the name of the group is included.
The Administrative Office of the United States Courts reserves the right not to post a comment, or any part thereof, which contains irrelevant or scurrilous material. Footnotes and endnotes attached to comments have been omitted.
Jack B. Siegel
Charity Governance Consulting LLC
Chief Judge Kimba Wood
The entry of an order to have the parties submit a redacted plea agreement or to restrict public internet access to the plea agreement would have to be docketed and would also serve as a red flag of cooperation and have the same concerns as if the cooperation was detailed in the plea agreement. A standard order that a judge issued in each case might solve the red flag problem, but I am not sure this would be compliant with Fed. R. Crim. P. 49.1. Judge Wood also expressed concern that cooperation has to be detailed as part of the sentencing and in the statement of reasons. The statement of reasons problem has been solved by the creation of the two documents for sentencing purposes, with the statement of reasons not being filed.
I am an assistant federal defender. I read your Memorandum dated August 30, 2007 about issues surrounding the whosarat website and the suggestions made so far to address the problem. I write to let you know about what I vew to be a growing problem along these same lines.
I have had a number of clients who are incarcerated at variou BOP facilities advise me that they are under tremendous pressure from other inmates to produce their docket sheets for indications of cooperation. Therefore, even if plea agreements or parts thereof are sealed, if the docket sheet reflects cooperation, it could have the same effect.
I would prefer to be allowed public access to that. Public access has been invaluable to me as a landlord. In Milwaukee, if more landlords screened properly we could be a factor in cleaning up some troubled parts of otherwise good neighborhoods. I would also feel a bit safer to take a quick look at who's going to be teaching, coaching, etc. my daughter. It's obvious in these times that parents need additional tools to protect their children and the government shouldn't get in the way of that. You can always put an asterisk by a plea agreement noting that it wasn't necessarily a case of proven guilty.
Records should remain public
Rob Ansley (Clerk of USDC, North Dakota)
Judge Tunheim: The District of North Dakota will be implementing a policy change on October 1 that we believe will alleviate concerns with dissemination of names of cooperating individuals by "Whosarat.com" and other websites. In cooperation with the USA and FPD in the District, we have developed a procedure to file all plea agreements as public (unsealed) documents, sanitized by the drafter (USA) of any references to cooperation. All pleas are accompanied by a sealed document, "plea supplement". The sealed plea supplement contains either a cooperation agreement or a statement that no agreement exists. To the internet public every plea in North Dakota will appear identical: plea agreement void of cooperation language and sealed plea supplement.
Attached is the press release announcing this change to our ECF administrative policy effective October 1. I would be pleased to discuss any details of the change to our ECF procedures with your staff.
Clerk of Court
I am writing as a journalist who uses the PACER system on a regular basis. I would suggest the system is an invaluable way for the public to keep easy track of public documents. These documents are all available but not everyone can dedicate time to come to a courthouse and look them up.
The proposals specifically speaks to plea agreements. I have not seen any suspect information in a plea during my six months on the beat. I recall one plea being available only in paper form for that reason. The AUSA went to the judge and made that argument. I would suggest pleas can be restrict in a case-by-case basis rather than as a blanket restriction.
If you have further questions, please feel free to contact me.
Judge Donald Walter
It is a reasonable request from DoJ. I support it.
Judge John L. Kane
It should be born in mind that courts are public institutions and depend upon public confidence for their efficacy. In the last ten years, more documents have been classified as secret, sealed by courts and otherwise made unavailable to the public than in the entire period from 1785 to 1997. Of course this is a response to the glut of data now made available by technology, but the efforts to obstruct public access to information is inimical to the very function of courts in a democratic society. This proposal is yet another abuse and should be rejected.
I hasten to point out that the proposal of the Justice Department would not accomplish its stated objective in any case. At most, it might require a little more time at the keyboard by those intent upon disclosing the names of informants. (I refrain from further comment about the dangers of an informant based law enforcement system because history is replete with examples.) I will, however, observe that the same information about these informants is available from those convicted, their attorneys, witnesses and unindicted conspirators. I have read literally thousands of pages of wire tap affidavits and transcripts of recordings and can assure you that the information sought to be sealed is known within literally minutes of the first arrest. Sealing in this instance is a formality the presence of which is detrimental to the principles of public courts. I thus submit the price paid is too dear for the imagined advantage to be gained
Richard F. Cebull
U.S. District Judge
I am in favor of a proposal to restrict public internet access to plea agreements to prevent disclosure of federal court case file documents showing that the defendant has agreed to cooperate with the prosecution. In my court in Billings, Mt., all plea agreements are sealed which contain a "cooperation clause" wherein the defendant represents he or she can provide "substantial assistance" thereby qualifying he/she for a 5K1.1 or a Rule 35 motion for reduction in sentence. I would assume and expect that sealing the plea agreement would prevent public internet access to such a document. Thanks for the opportunity to comment.
I support restricting internet access to plea agreements. Many of them have cooperation provisions, and the compilation and dissemination of this information may interefere with law enforcement efforts and facilitate or encourage retaliation.
Judge Dan Polster (OH-N)
The general public probably does not need computer access to such documents, but it is hard to see how allowing in-person access offers any measure of protection against people with a peculiarly high motivation to see such documents. Such protection is afforded only by careful drafting of the plea agreement to avoid any indications of whether a person actually is cooperating or not. Furthermore, with or without access to accurate information, it is perfectly possible for malevolent persons to publish information on the internet that is not true, whether the subject matter is cooperation with the government or any other subject.
In the case of lawyers, they obviously need full and convenient access to such documents in representing their clients. It is unlikely that any lawyer would publish information of that kind on the internet, but if the mere possibility is viewed as a problem, it would be a simple matter to prohibit lawyers from doing so or face discipline for having done so.
J. Steven Bush
Attorney at Law
There has been way to much secret activity in the past few years. The citizens and taxpayers of this country deserve access to court filings.
All systems work best when the light of day illuminates the process.
Mary Hasbrouck (Paralegal) Alaska
I am a paralegal with 20+ years of experience, most of which has been based in Alaska. Alaska is a big state far, far away from the rest of the country and its courts.
The ability to access public records electronically has been an invaluable asset to my work and our firms' clients. The reduction of cost and time is significant. A simple request for documents on file with an out of state court use to take weeks and several LD telephone calls. Nowadays I can get exactly what I am looking for in a matter of minutes - longer if I make a mistake.
To limit some documents from public internet access but not from local public access is arbitrary and unfair. This is not equal access to the legal system.
Thank you, Mary Hasbrouck
I oppose the suggestion to restrict access to plea agreements online.
I blog under the name "emptywheel" at the Next Hurrah and Firedoglake. I started covering federal trials closely during the CIA Leak investigation, and relied closely on PACER to do that coverage. With Firedoglake, I was part of a team that provided pioneering liveblogging of the Scooter Libby trial. In all of this work, I effectively served as a citizen journalist, scrutinizing the work of our government to make it more accessible to others.
Making plea agreements available online is crucial to this kind of work. Often, plea agreements are the best description of complex cases, which increasingly seem to include government officials. In particular, I have used the Griles, Cunningham, and Abramoff plea documents to report on such government corruption. If the plea deals are no longer accessible online, it would create exorbitant costs for average citizens to study the complex conspiracies of those in our government.
They need to remain accessible. We have enough secrecy already in our government and that is how we got most of the problems that we have. Everything in a democracy should remain out in the open so that people are informed to be able to vote intelligently. Please, no more secrecy.
In the interest of accountability in government, I urge you to continue the policy of openness regarding plea agreements. My own informed decision making has been significantly improved through this access.
Manhattan Beach, CA
Plea Deals in all forms should be restricted from public access
I believe very strongly that it would be a mistake to restrict Internet access to public files in criminal cases. If a document is under seal, then of course access should not be allowed. However, our government has gone to extreme lengths to keep its actions secret. The integrity of our system of justice is being severely challenged on many fronts. There is evidence that the Justice Department has been using its prosecutorial powers for partisan purposes. It is essential that the public have full access to all public files. PLEASE do not do this!
R. Alan Fryer
I would urge the judiciary to be as transparent as possible as regards public access to information regarding the legal process.
There is no question that public confidence in the administration of many departments of government, particularly the Department of Justice and the administration of Justice generally declined as we witness events including politically motivated prosecutions such as the reversal [from the bench at the conclusion of oral argument] by an appellate court of the conviction of a midwestern women convicted of improperly selecting a travel agent for state use. Many [including the undersigned] are increasingly skeptical of the proffered reasons for government secrecy as news reports of abuses of civil rights continue to surface.
The cornerstone of the justice system is the jury system. Do you really want to fan the flames of public skepticism of the judicial system further by increasing secrecy?
You may find yourselves with jurors unwilling to believe ANYTHING proffered by the witnesses for the government! The OJ Simpson case should indicate what happens when jurors have no confidence in the integrity of the judicial system.
The alleged behavior of the US Attorney of New Jersey, for example, would require me to place a substantially higher burden on the government than might have in the past were I asked to serve on a jury.
The long term damage to the fabric of our nation resulting from reduced confidence in the administration of justice due to increased secrecy cannot be overestimated.
I strongly believe that the citizens of our democracy should be able to access this information. Since access to the internet is readily available to most U.S. citizens, then public access via the internet should not be resticted. It should be maintained or expanded. Our democracy was designed for an informed citizenry. Any means to provide information to voters is desired
Sunshine is ALWAYS the best policy. There should be very very few cases where public access should be curtailed. Even in the case of "national security", there should be a definite and reasonable period of time for this information to stay under wraps.
Covering for a current or past Executive/Legislative/Judicial branch of the government's missteps/wrong doings is in no way a reason the public, "we the people", should be denied this information.
This includes plea agreements.
Mountlake Terrace, WA
Federal Judiciary Employee
I am writing to comment on the issues concerning public access to certain criminal documents.
I think that certain criminal documents should be withheld from electronic access. I agree that there should not be internet access to plea agreements and similar documents in criminal cases that often contain
information identifying defendants who are cooperating with law enforcement investigations. There are serious safety concerns for those cooperating individuals as well as their families. Such people are increasingly becoming victims of retaliation by criminals practicing the "no snitching" code of silence. Likewise, documents containing personal information such as social security numbers, should also be withheld from internet access.
Plea agreements and similar sensitive documents should be filed under sealed like presentence investigation reports. If someone needs that information, they should have to go through extra lengths to receive permission from the court and show cause why the information should be released to them.
Thank you for seeking my input and considering my comments.
The public has a strong interest in retaining open Internet access to plea agreements. The recent plea agreements in public corruption cases such as the Abramoff, Libby and Kontogiannis cases have revealed government involvement, by elected officials and other public officials, in activities which should be scrutinized. Such scrutiny allows informed citizens to demand ethical behavior and to influence public policy choices in our justice system. All attorneys in the field of criminal justice understand the importance of plea agreements to the efficient functioning of our overloaded Courts. Because plea agreements are so common it is important that the public understand the policies, generally and specifically, underlying those agreements. Continuing to allow Internet access to plea agreements is important in maintaining public oversight of the justice system which exists of, by and for "We the People."
Michael E. Stowell
Attorney at Law
The new regulations would fly in the face of the public interest with regard to public access and transparency about the resolution of criminal cases. The proposed solution of restricting access is also not the least restrictive way of resolving the problem of possible disclosure of information identifying cooperating defendants. This could be accomplished through redaction or delay of publication of plea agreements. Similarly, parts of agreements that include disclosure of this information could be filed under seal as an amendment. Our court process are supposed to be open to the fullest extent possible while still allowing for fair and just adjudication of cases. Shutting down or sharply restriciting public access via the internet is not the correct solution. Further, there is a high-level of public interest in the results of criminal cases, especially those involving crimes in the public sphere and involving public offiicals and public acts. Information contained in such plea bargains often contain appropriate and important information about the culpability and involvement of other people who have sought to improperly influence public acts. The internet is an important tool and has contributed much to public access. Such restrictions would in the end also not be effective as parties who are truly connected and in jeopardy would still have access in person. The only limitation would be on those pubic-spirited citizens who cannot afford or are distant from the court building. If the courts find they must restrict access because disclosure would hit hard at future prosectutions, the only logical rule would be to limit access to all. That, of course, would fundamentally change the way courts do business, undermine the integrity of the court system.
San Pedro, CA
As a regular reader of both of the blogs firedoglake and the Next Hurrah, I very strongly support the continued placing of court documents onto the web, where everybody from dirty "effing" hippy bloggers to pinstripe-suited lawyers and everybody in between can get a look at just what everybody is talking about in particular court cases.
Democracy means openness and sunshine and open access. I completely agree that documents to be placed on the web should undergo careful review to see to it that privacy concerns are seen to. If that means we pay more in tax money to see to it that courts have enough personnel to perform the necessary review tasks, so be it.
Please do not stop access to the documents in court filings, as I understand may be under consideration.
Our courts only function well when they are public, open and transparent. It is the authors of documents on file with you who must take responsibility for protecting the identities of individuals mentioned, or protecting the privacy of other information within. Those authors are generally attornys who already have the interests of their clients at stake, and who have ethical responsibilities enforced by their peers. It is not the responsibility of the Courts to anticipate what might happen, but to protect the integrity of the judicial process.
A judicial process without public access is a judiciary in name only; it violates the very essence of democracy. The abuses of the secrecy of the FISA court are now well-known, and serve as a precautionary tale to why courts should not engage in hiding information, except in extremely rare (and case-specific) conditions.
Please reserve those decisions to jurists who are familiar with the specifics of a case, and can make such judgements in camera. Do not relegate those decisions to staff members who are not necessarily versed in the subtle practices related to law and/or privacy.
Dear Court Administration Privacy Staff –
Many of the country's citizens have watched, as I have, with growing concern as this administration has eaten away at the availability of what has been, in the past, public information.
This disturbing trend has hindered the press, the citizenry, and even members of the bar who defend those accused of crimes from doing their jobs, and has cast the Justice Department – which should be worried about protecting Americans – in the role of protecting the government from concerned Americans.
Please take a principled stand on this issue and keep public records public – even if they turn out to be somewhat embarrassing or inconvenient for someone in power. You work for all of us, not just for the ones with the most important friends.
I look forward to learning that your office has chosen to do the ethical thing, even if it is not the easiest thing.
I have read that limiting electronic access to PACER information is being considered by your committee and I am deeply troubled by this news. I urge you to continue to make all court records publicly available via the Internet to all citizens, except for those very rare cases where secrecy is imperative as determined on a case by case basis by a judge or similarly appropriate review panel.
The public's need to know far outweighs the needs of those made uncomfortable by scrutiny. How else can the public be informed about what's going on. There are occasions where keeping some information secret is warranted, but those occasions are rare and should be easily handled on a case by case basis. Please remember "government for the people"; that's us.
I am writing today to suggest that the current system of openness and transparency regarding federal plea agreements be retained. Access to these agreements provides the American public with a window into a contract that is being made with a defendant on behalf of the American people. I am not a lawyer and have had very little experience with the federal court system, but I feel strongly that access to information is my right as a citizen, as long as my right to information does not infringe on the rights of a defendant. As for the need to keep the cooperation of some defendants secret, current methods of sanitizing court documents are sufficient for those needs as they have worked for hundreds of years. I believe that removing these plea agreements from internet access limits the free flow of information while not actually protecting the needs of defendants. I feel that our Democracy is illuminated through openness and transparency, that a well informed citizenry makes the best choices for us all.
I am writing to you about the possibility that access to court documents which have to do with with cases that effect the welfare of our country and American citizens may be shut down.
During the Libby trial the links to the case files etc at the blog FireDoglake deepened my understanding of the Judicial process and had me feeling that it really mattered if a peasant like myself understood what was going on. I felt part and parcel to the Judicial process and found myself questioning, understanding and appreciating what our Constitution and laws are based on. The direct access had me hungering for more information, more facts. I believe that many of the commenters at Firedoglake are attorneys and they would help people like me ( farmer, landlord, soccer mom) when I would have questions about the documents and the court prodecures, it was truely enlightening. I have continued to go to other blogs to access and read other documents in Federal cases that effect American citizens lives, National Security and freedoms.
Also during the Libby trial I encouraged a group of Ohio University students (including my 20 year old daughter who is a student at Univ of Colorado who was home visiting) to join the Firedoglake blog community. They too became riveted with the process, began asking more questions and began to deepen their understanding of the Judicial process and what our founding fathers were after when they birthed the idea of a balanced, fair and just system divided into three "supposedly" co-equal branches. We read the documents and talked about this a great deal as the trial was going on. Being able to access these documents via the internet made the possibility of deepening that understanding possible.
Most of us know that the confidence in our Judicial system and Congress are at an all time low! I sincerely hope that the courts see the value in allowing common folks continued and easy access to the Judicial system via the Internet. You can only strenghten our Judicial system by continuing to allow us to deepen our understanding via this newly transparent process.
(Sanction, Inc.) Minneapolis
If they are public files, then they ought to be public. Period.
Making it harder to access those files by restricting them is wrong.
This is in reference to the Court Administration and Case Management
Committee of the Judicial Conference of the United States' proposal
to restrict public Internet access to plea agreements in criminal
cases, which may contain information identifying defendants who are
cooperating with law enforcement investigations.
Level of privacy on-line should be the same as in court. Case law
should provide the answer. Internet should provide greater and
faster access to documents already public. Standards of privacy do
not change because of technology; technology must change to meet
standards of privacy.
To preserve and enhance their legitimacy, courts must be open and transparent to the public to the maximum consistent with privacy rights and good judicial practice. As times change, as we enter in and engage more deeply with the electronic age, the definitions of open and transparent also change and the courts must reflect these changes. Public documents should be available to the public, not in a technical and increasingly restrictive sense, but practically so and in the public commons of our age, the internet. Making the public documents of the courts truly available to the scrutiny of the public which they serve will increase the professionalism with which such documents are written, filed, and processed. Currently, the expectation is that few outside those directly involved will review the records and form opinions on them because, due to their relative unavailability, few can.
Will there be abuses? Yes, but good practice in anonymous reference to at risk parties, for example, can mitigate these. Moreover, as long as documents are in any way public those who would seek to use them abusively will do so. Efforts to restrict access will not harm or impede them, but the public's right to know the operations of its government through its courts will be greatly damaged. The situation opposes an onerous and ineffective remedy against a few prudent precautions, the public good, and the public trust. The answer to which of these must take precedence is clear.
I believe that our courts should endeavor to remain open and transparent, unless there is a compelling reason, in specific cases, to keep information from the public. In such cases, judges are the best arbiters of whether disclosure will be harmful. I urge you not to impose a blanket rule, keeping plea agreements from the public. If a specific defendant in a specific case will be at risk if the details of his agreement are disclosed, the courts can protect him.
Plea agreements in cases involving governmental misconduct are part of the "sunshine" brand of disinfectant that helps us keep our democracy healthy. The name "Jack Abramoff" comes to mind. I urge you not to change the rules.
I respectfully submit the proposed changes are contrary to the public interest in that they seek to diminish Governmental transparency in the resolution of criminal cases.
The proposed solution of restricting access to documentation is not the least restrictive way of resolving the problem of possible disclosure of information identifying cooperating individuals. The issue could easily be resolved through the redaction of any pertinent identifying information contained within the documents. Similarly, the portions of those agreements which include disclosure of this information could be filed under seal as an amendment.
Our judicial processes are intended to be open to the public to the fullest extent possible, while allowing for just adjudication of the matter before the Court. Halting or sharply restricting public access via the Internet is inequitable, as it would deprive a vast majority of the concerned citizenry the opportunity to access Court documentation. There is a high-level of public interest in the results of criminal cases, especially those involving crimes in the public sphere and involving public officials and/or public acts. The plea bargain agreements arrived at in such cases often contain important information relating to the culpability and involvement of other persons who have sought to improperly influence governmental affairs or act in other ways that are contrary to the public interest.
The Internet is an extremely effective medium which is only beginning to realize it's full potential as a tool to allow public access to the workings of their Government. The proposed restrictions would ultimately serve to deny that access to those public-spirited citizens who are constrained, by either temporal or fiduciary concerns, from traveling to the Courthouse and duplicating the relevant documentation.
If the Courts find that they must restrict access because disclosure would intolerably impede future prosecutions, it would seem that access must be limited to all. That, then, would fundamentally change the way our Courts do the People's business, and undermine the integrity of the public Court system. For these reasons, I ask that the Court maintain the Electronic Case Management and Public Access to Court Electronic Records Systems in their present forms. Thank you for your kind consideration.
It is my opinion that public Internet access to all non-sealed pleas agreements should continue. The judiciary has the authority to seal plea agreements if necessary, and this is sufficient. Additionally, if the Justice Department is concerned about witness intimidation or retaliation, it may take steps to prosecute those offenses under federal law.
It has long been a hallmark of the United States government that the public is permitted to access documents concerning the everyday operation of government, with few exceptions. This is because the government serves the people, and should not pretend that it is the other way around. Additionally, many states now have provisions in their public access laws that provide that any information which may be easily distributed in electronic form be available on the Internet. For the US judiciary to change this procedure would be a regression not only for its own policies, but for the country in general.
Finally, intimidation in any given case will not be discontinued by halting Internet access to plea agreements. It is trivial for a malicious party to pay a small stipend to an innocent party to acquire court records on the malicious party's behalf. The entire reason for prohibiting Internet access to plea agreements is then circumvented, and the same goals of intimidation or retaliation are easily accomplished, whereas legitimate goals are foiled or made difficult.
 For example, a Ph.D. candidate in criminal justice might analyze certain aspects of plea agreements to better understand how to prevent crime.
Your organization has been a liberalizing effect on public access to this kind of information.
Transparency is so vital, and many of the harms we fear can be minimized. You have done great work & addressed prior privacy concerns with care.
I suggest extending access to citizens for the continued growth &health of this our fragile constitutional republic.
Since 2000, we have been treated to the most secretive administration since the Nixon era. There have been more corruption cases involving elected officials than at any time in history. Since the 80's era of "me, me, me"
greed and corruption have grown while integrity and reputation and honor have all declined.
Every nook and every cranny of every part of government has been politicized, even while violating a good many laws to do so. The Hatch act, Government Information Act amongst others have been throw aways. (Along with the constitution's bill of rights!)
So now, when sunshine is and would indeed be a very powerful disinfectant, while fresh air is sorely needed, why stuff all of it back into a closet to mold and pollute and fester?
Don't do it!
Everyday, more and more information about how our government seems to be hidden from the citizenry. The public needs to know how how things are actually working in this country. The following are not my words, but I couldn't agree more or said it as well. Thank you for taking comments regarding Internet Access to certain aspects of criminal cases involving cooperating defendants. While I welcome and wholeheartedly endorse the same privacy protections for a cooperating defendant as I would for any witness, it is my sincere hope that you will equally take into consideration the public's right to know regarding the administration of Justice in our great Country. I am not a lawyer, but I am an interested citizen who follows news of our Justice system in action, and constantly marvels at how lucky we are to live in such a free and transparent legal system. Much of what I have learned in the last two years has come as a result of blogging, where the better sites, on both right and left, take filings before the various Courts and analyze them for their relation to both precedent and prevailing circumstances. This 'living civics' approach has been invaluable in making me a better-informed citizen, as I am sure it has for many others, as well.
Consider a redaction scheme, if you must, but by all means, please leave the evidence of our fair and impartial system available to all via the Web in plain, public view.
Again, thank you for opening your processes up to public comment: I feel like a participant.
I appreciate the Administrative Office of the U.S. Courts taking the time to approach the general public the issue of possibly restricting internet access of plea agreements in criminal cases.
As a citizen layperson your internet access has offered me and many other ordinary citizens the opportunity to better understand and appreciate the judicial process. If there was a chance that internet access was restricted people like me who are members of internet sites which have comprehensive, thought-provoking, and intelligent discussions would be severely constrained.
I believe the safeguards regarding acquisition of court documents that are already in place (such as restricting access of private personal information or sensitive data) are essential tools that address the need to protect the rights of defendants or any vulnerable data. These safeguards, of course, should be adhered to regardless what mode court documents are obtained.
Allowing the general public access on the internet is an effective instrument for the courts to permit healthy, educational, and transparent discussion of the judicial process. Thank you so much for this internet "window" of opportunity that has allowed everyday citizens like me to view the justice system in action.
Please don't close that "window", allow it to continue.
I am an attorney licensed to practice in various federal courts in California. I do not practice criminal law.
The problem that is described had to have existed prior to internet access -- the same information would be available at the courthouse. Someone needs to explain why prior procedures worked regarding this problem but allegedly will not work with the internet. The internet clearly makes it easier, but I would assume someone motivated by improper reasons to inquire concerning the situation would still be more than motivated to check courthouse records.
Second, the problem can be addressed by a rule permitting sealed filings upon a showing of good cause. Good cause should be narrowly defined, and require a showing of the specific concerns that justify non-disclosure. It should also have a time limitation for any order, requiring a renewed request or otherwise the protection lapses and the records become public. Although this overall does create a procedural burden to enact protection, court records should be subject to a strong presumption of being public. The burden should be on the party seeking non-disclosure to overcome that policy. The reverse should definitely not be true -- to keep records secret because it might be beneficial.
Thanks for listening!
Relying on court information on the internet, I can't believe that you are preparing to omit plea agreementsw and other pertinent "public" information from public view on the internet! You have another thing coming if you think that people that rely on this information to keep up with federal cases are going to sit for this!
Now is the time for Congressional oversight! Use it, or lose it!
Everyone is accountable!
There is only one reason to reseal any portion of a public document system that is open to the public. That reason is, that someone is trying to get away with something. The court system does not grant acess to people. The people of this country cede a certain amount of control to officials to do the business of the people. "power obtains from the people." The public's business should be done in public, and in this day and age that means leaving everything that belongs to the public where the public can get at it. The people who put the open system together understood this, understood that for a small fee, it is the public's right to see that which is the theh "public's business." Including cases where the reading of any docket begins with the words "The people of the the United States VS.....whomever."
To remove this acess is just one more step in the direction of a police state. All cases, plea agreements, dispositions, and transcripts of trials should remain open. One can only surmize that someone who wishes to clcose them has something to hide, and that, in itself, merits an investigation.
Lois M. & Hiram (Larry) Adams
(Adams Family Trust & Foundation)
We are in support of open access to records under certain conditions. The general public must be allowed to obtain information for a purpose and not just for kicks. Like access to the Fair Credit reporting Act there must be a place on the web where one must state a purpose before proceeding.
Any confidential should be redacted unless the person can prove a need to know then we feel that such a request must come in writing preferably under a notarized signature or a court order and in some case under the Freedom of Information Act.
In our case we as investigators are qualified to do business under the PACER program.
Now as a retired corporate(including computers) airport,seaport security consultant we must practice reasonable restraint and caution but still allowing access without violation of constitutional rights
(Chief, Probation & Pretrial Svcs, D. Maine)
Theoretically, the public has the same access through ECF that it had previously with paper. However, as a practical matter, very few individuals with nefarious intentions would walk into the courthouse, through security, and request file materials. Now, anyone with a computer can anonymously look through multiple defendants' files without any scrutiny whatsoever.
The reality in many districts, including this one, is that plea agreements are boilerplate. They give no details regarding a defendant's cooperation but for the fact that he/she has an agreement with the government. The defendant may never provide any information to the government at all under this agreement. However, the fact that the agreement exists allows individuals such as the owner of whosarat.com to imply and allege all kinds of things that are likely not accurate. Without the internet access, it is highly unlikely that the defendant who developed whosarat.com would have personally entered the courts and obtained even the bare information that a plea agreement existed.
Docketing a plea agreement in ECF, but then sealing another document with the details, as has been suggested in some districts, does nothing to address the problem. The only solution is to file all plea agreements as sealed documents. I understand the policy implications as regards public access, but the world has changed and ECF has changed the courts. Our practices need to change with them. Although no one has been injured in the pilot districts over the two year test period, we hear anecdotally that many defendants have been intimidated and threatened. Our local jails and the BOP prohibit defendants from having their presentence reports and any other paperwork in their possession because they are "shaken down" by other inmates who want to read their documents in order to determine whether they are cooperating. In Maine, we have been told about many things that inmates "assume" from what is and isn't in reports and they freely spread these assumptions around. This is the essence of whosarat.com. I'm sure the developer of whosarat.com is satisfied with the chaos he has created by posting misinformation, and even more satisfied that he has the government (DOJ and Judiciary) expending resources to counter him !!
Federal Judiciary Employee
If plea agreements relating to cooperation are sealed while other plea agreements are not sealed, it would be immediately apparent to the public that a defendant whose plea agreement is sealed is cooperating. Not all individuals who enter into cooperation plea agreements actually cooperate. When groups of documents are routinely sealed, it becomes extremely cumbersome to view a record.
I would like to register my support for public internet access to plea agreements in criminal cases which may contain information identifying defendants who are cooperating with law enforcement investigations.
I believe the public's right to know such information supercedes all other concerns.
Chief Judge Michael P. McCuskey (C.D. Il.)
Federal Public Defender
Tim Record (Attorney)
I believe these documents should be restricted to the PACER subscription system. At least until after the case is disposed of.
Bryan Gates, Attorney
(CJA Panel Attorney in NC)
Plea agreements should continue to be accessible to the public and over the internet. Creating exceptions to the general rule that court proceedings are open undermines public confidence in the courts. If a person has chosen to cooperate with prosecutors in exchange for sentencing consideration, the public is entitled to know the details of that arrangement, which is being carried out in its name. The benefits of a blanket rule sealing all plea agreements will not provide any greater protection then the current practice of sealing plea agreements upon a showing of cause. It is generally pretty easy for criminal defendants to learn from the grapevine who is and is not cooperating.
Chief Judge Harvey Bartle, III (PA-E)
Miriam L. Siefer (Federal Defender Office) Detroit
Attorney, Charlotte, NC
I drafted, reviewed, cleared, signed, and implemented an extremely large number of plea agreements during my 16 years as an AUSA. A large number of these agreements included language relevant to USSG 5K1.1 cooperation. A few cases in my district involved serious witness protection concerns, in which witnesses were relocated and given help avoiding their former criminal associates against whom they had cooperated. We prosecuted major drug cases with murders during the investigation, and other violent crime organizations, including several rounds of prosecution of the Outlaws Motorcycle Club (we had to re-locate one witness and his family several times during the trial because information leaked to the defense).
I firmly believe that there is almost never a real need to keep a plea agreement off the public record. A plea agreement is a fundamental public record, necessary for the public's evaluation of what the government is doing. In extremely rare circumstances, the Court should have authority to keep one under seal to protect the life of the defendant. The plea agreement need never contain sensitive information. The existence of a plea when an undercover investigation is still being conducted need never be put on the record -- the plea need not be filed until the case goes overt and Grand Jury testimony can ensure the defendant is unlikely to back out.
The real need for secrecy to protect a cooperating witness is during the trial, but that would be unconstitutional. Sentencing, where cooperation that did not include trial testimony, is the other area where there can be a legitimate need for temporary secrecy to protect the cooperator from retaliation, especially when the sentence will entail active time in a prison where cooperators are generally abused. When truly needed, however, the government can usually obtain a sentence with appropriate credit for cooperation without detailing that cooperation The judge will understand the need to be discrete. In normal but high profile cases, I preferred to place on the public record a detailed sentencing memorandum summarizing for the Court, the public, and especially for victims the defendant's conduct and culpability, his/her cooperation, and the government's full rationale for its sentencing position. Victims seemed to appreciate the individualized explanation and the fact it was readily available.
Those rare circumstances where the defendant's cooperation needs to be explained under seal to protect the defendant can be readily handled under current law and practice.
As a suggestion for alternative policies, I would suggest that, generally speaking, the criminal process needs to be open except on the most stringent of narrowly defined reasons that serious efforts are made to ensure that each order to seal is factually justified. Too often Courts seal based on prefunctory, unsupported in-camera motions. Except for warrants which areautomatically unsealed on execution, authority to seal or otherwise keep records off the public record should be limited to Article III Judges, and all such orders should be limited to 30-90 days. The Court should require an in camera hearing in which the presumption should be strongly against sealing, admissible evidence introduced under oath and on the record, and the Court should cross-examin the witnesses in the same manner that a good defense lawyer would use. Renewal should be de novo, and failure to renew should result in automatic unsealing. All sealing orders should be revealed on the public record with information similar to the privilege log required when a party refuses to produce privileged information in discovery. It should be easy for the press and others interested to find out that information is sealed, move for un-sealing, and appeal if that motion is denied. Eventually, all records must be unsealed, including the records of the proceedings seeking orders to seal.
We cannot afford to have a government which operates in secrecy. This year's controversies over political intrusion into the criminal process is plenty of reason to reject any further ability of the government to hide what it is doing.
Openness fosters responsibility. Many times during my carreer, I asked policy makers "how are you going to explain this to the press?" If you can't explain what you are doing and why you are doing it, you shouldn't be doing it. Almost always they didn't do it after being asked that question.
I oppose any new rule to allow plea agreements and other essential records of the government's conduct of its core responsibility, protecting the public from crime and criminals, to be kept off the public record. Current law and practices allow too much secrecy rather than too little.
Tim McGlone (Staff Writer, The Virginian-Pilot)
I strongly object to any new rule that would further restrict access to federal court records. The identity of a cooperating defendant, presumably already a public record through his or her own case, should not be sealed or redacted in plea agreements. The identity would no doubt come out at trial or pre-trial hearing anyway. Cooperating witness names are already redacted. Any further attempt to conceal details of plea agreements from the public will only add to the public's mistrust of the workings of the federal court system and would also erode the rights of the defendant, who may want the public to know that a cooperating co-defendant has something to gain by cooperating.
In addition, on a related matter, I would like to once again voice my objection to information that currently is redacted in electronic filings. Specifically, I am referring to defendant identifying information, such as addresses and dates of birth. As a member of the media, it is my duty to report on criminal cases in the federal system. That becomes difficult when I cannot fully identify someone accused of a crime. "John Jones was charged with rape and robbery yesterday." With several hundred John Jones' in the local phone directory, it is impossible for the public to know which John Jones we are reporting about. My suggestion is to change the rule to allow for the release of month and year of birth and street and city address. That way, we can narrow down the identity but the specific date of birth and house number remain concealed.
Elaine Terenzi (Chief Probation Officer, M.D. Florida) Tampa
In way of clarification, I am assuming that the proposal is that all plea agreements would then not be in PACER. If only those which contained "sensitive information" were excluded, the exclusion itself would be telling. This is similar, but less severe from a public accessibility standpoint, to that which was done with the Statement of Reasons for very similar reasons. Offenders in custody were being forced to produce copies of the Statement of Reasons (SOR) which were attached as part of the Judgement and Commitment Order, to prove that they were not "cooperating" with the government. The BOP (DOJ) requested that this information not be made readily available. The SOR is no longer maintained by the Clerk of Court at all, but rather is maintained by the Probation Office in a separate, non public, record.
Not putting the plea agreement in the electronic record would reduce, but not eliminate, the public scrutiny it gets. I am sure websites like "Smoking Gun" and "Whose a Rat" would still seek out the paper record in cases of high notoriety, but it would make it more difficult.
(FPD, D. Maine but submitting his personal views)
Mary Alice Baish (Am. Assoc. of Law Libraries) Washington, DC
American Bar Association (Criminal Justice Section)
Federal Bar Council (2nd Circuit)
Media Law Resource Center, NY
Newspapers Assoc. of America and specific newspaper publishers
Department of Justice, Washington DC
Reporters Committee for Freedom of the Press
The American Society of Newspaper Editors
Society of Prof. Journalists
National Assoc. Criminal Defense Lawyers
Chief, U.S. Probation & Pretrial Office, D. New Mexico