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Fall 2007 Comments Received

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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 (Fall 2007).

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.  

Item

Date

From

Summary

1

5/22/07

(Rec'd in response to NYTimes Article 5/22/07)

Jack B. Siegel (Charity Governance Consulting LLC) Chicago

I understand the need to protect witnesses, but that could be accomplished through redaction rather than by denying access to important records. "Usually, the plea agreement is most important document in PACER because it describes in detail what transpired." IRS redacts confidential taxpayer information from private letter rulings -- offering the taxpayer an opportunity to suggest redactions before the document is made public. This provides the tax bar with access to documents that reveal the IRS's thinking without revealing sensitive information.

2

8/30/07

Chief Judge Kimba Wood (NY-S)

Two concerns: (1) that if an order to redact the cooperation information from the plea agreement under pending FRCrP 49.1 is issued and docketed, it would serve as a red flag of cooperation, raising the same concerns as if the cooperation were detailed in the plea agreement. (2) The cooperation has to be detailed as part of the sentencing and in the statement of reasons. (Not a public document). The detailed information on cooperation nevertheless needs to get to the judge to be a part of the sentencing decision.

3

8/31/07

Judiciary Employee

Some incarcerated clients 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, it could have the same effect.

4

9/10/07

Private Citizen

Public access has been invaluable to me as a landlord. I would also feel a bit safer to take a quick look at who's going to be teaching, coaching, etc. my daughter. You can always put an asterisk by a plea agreement noting that it wasn't necessarily a case of proven guilty.

5

9/10/07

Private Citizen

Records should remain public

6

9/11/07

Rob Ansley (Clerk of USDC, North Dakota)

The District of North Dakota will be implementing a policy change on October 1 that we believe will alleviate these concerns. In cooperation with the USA and FPD 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.

7

9/11/07

John Diedrich (Journalist, Milwaukee Journal Sentinel)

As a journalist who uses PACER on a regular basis, the system is an invaluable way for the public to keep easy track of public documents. 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 restricted in a case-by-case basis rather than as a blanket restriction.

8

9/11/07

Judge Donald Walter (LAWD)

It is a reasonable request from DoJ. I support it.

9

9/11/07

Judge John L. Kane (CO)

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. The proposal of DOJ 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. 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. The price paid is too dear for the imagined advantage to be gained.

10

9/11/07

Judge Richard Cebull (MT)

I am in favor of the proposal. In my court in Billings, Mt., all plea agreements are sealed which contain a "cooperation clause." I would expect that sealing the plea agreement would prevent public internet access to such a document.

11

9/11/07

Judge Dan Polster (OH-N)

I support restricting internet access to plea agreements. Many of them have cooperation provisions, and the compilation and dissemination of this information may interfere with law enforcement efforts and facilitate or encourage retaliation.

12

9/11/07

J. Steven Bush (Attorney)

The public probably does not need computer access to such documents, but allowing in-person access negates protection against people with a high motivation to see such documents. Protection is afforded only by careful drafting of the plea agreement to avoid any indications of whether a person actually is cooperating or not. ... Lawyers, obviously need full and convenient access to such documents in representing their clients.

13

9/11/07

Private Citizen

There has been way to much secret activity in the past few years. Citizens deserve access to court filings. All systems work best when the light of day illuminates the process.

14

9/11/07

Mary Hasbrouck (Paralegal) Alaska

Electronic access has been an invaluable asset to my work and our firms' clients. The reduction of cost and time is significant. 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.

15

9/11/07

Marcy Wheeler (Blogger, 'Firedoglake' and 'The Next Hurrah')

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. 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.

16

9/11/07

Private Citizen

They need to remain accessible. We have enough secrecy already in our government. Everything in a democracy should remain out in the open so that people are informed to be able to vote intelligently.

17

9/11/07

Private Citizen,
Manhattan Beach, CA

In the interest of accountability in government, I urge you to continue the policy of openness regarding plea agreements. My decision making has been significantly improved through this access.

18

9/11/07

Private Citizen

Plea Deals in all forms should be restricted from public access

19

9/12/07

R. Alan Fryer (Attorney) Boston

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. 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. It is essential that the public have full access to all public files.

20

9/12/07

Private Citizen, Princeton NJ

I would urge the judiciary to be as transparent as possible. Many are increasingly skeptical of the proffered reasons for government secrecy as new reports of abuses of civil rights continue to surface. 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 witnesses for the government! The long term damage resulting from reduced confidence in the administration of justice due to increased secrecy cannot be overestimated.

21

9/12/07

Private Citizen

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.

22

9/12/07

Private Citizen, Mountlake Terrace, WA

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. This includes plea agreements.

23

9/12/07

Federal Judiciary Employee

I think certain criminal documents should be withheld from electronic access. 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. 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.

24

9/12/07

Michael E. Stowell (Attorney at Law)

The recent plea agreements in public corruption cases such as the Abramoff, Libby and Kontogiannis cases have revealed government involvement, by public officials, in activities which should be scrutinized, and 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 they are so common it is important that the public understand the policies, 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."

25

9/12/07

Private Citizen,
San Pedro, CA

The proposed solution is 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. There is a high-level of public interest in criminal cases, especially those involving crimes in the public sphere and involving public officials and public acts. Plea bargains often contain appropriate and important information about the culpability and involvement of people who have sought to improperly influence public acts. Such restrictions would 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 prosecutions, 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.

26 

9/12/07

Private Citizen

I very strongly support the continued placing of court documents into the web, where everybody ... can get a look at particular court cases. Democracy means sunshine and open access. I 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.

27

9/13/07

Private Citizen

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 attorneys already have the interests of their clients at stake, and have ethical responsibilities. 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 violates the 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..

28

9/13/07

Private Citizen

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 DOJ which should be worried about protecting Americans – in the role of protecting the government from concerned Americans. Keep public records public – even if they turn out to be somewhat embarrassing or inconvenient for someone in power.

29

9/13/07

Private Citizen, Wayland MA

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?

30

9/13/07

Private Citizen, Portland, OR

The current system of openness and transparency regarding federal plea agreements should be retained. Access to these agreements provides the American people with a window into a contract that is being made with a defendant on behalf of the American people. 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 plea agreements from internet access limits the free flow of information while not actually protecting the needs of defendants.

31

9/13/07

Private Citizen

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. I believe that many of the commenters at Firedoglake are attorneys and they would help people like me 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. 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.

32

9/13/07

Robert Alberti
(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.

33

9/13/07

Private Citizen,Portland, OR

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.

34

9/13/07

Private Citizen,
Urbana IL

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 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.

35

9/13/07

Private Citizen,
Marble Rock, IA

I believe that our courts should endeavor to remain open and transparent, unless there is a compelling reason, 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. 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.

36

9/13/07

Private Citizen

The proposed solution 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. 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.

37

9/13/07

Private Citizen,Houston TX

It is my opinion that public Internet access to all non-sealed plea agreements should continue. The judiciary has the authority to seal plea agreements if necessary, and this is sufficient. Additionally, if DOJ is concerned about witness intimidation or retaliation, it may take steps to prosecute those offenses under federal law. 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.  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.

38

9/13/07

Private Citizen

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.

39

9/13/07

Private Citizen, Kansas City

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. Every nook and every cranny of every part of government has been politicized, even while violating a good many laws to do so. 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?

40

9/13/07

Private Citizen,
Arizona

While I endorse the same privacy protections for a cooperating defendant as I would for any witness, we shall equally take into consideration the public's right to know regarding the administration of Justice in our great Country. 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. 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. Thank you for opening your processes up to public comment: I feel like a participant.

41

9/13/07

Private Citizen,
Salinas CA

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 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.

42

9/13/07

David M. Browne (Attorney)

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. 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.

43

9/13/07

Private Citizen

Thanks for listening! Relying on court information on the internet, I can't believe that you are preparing to omit plea agreements 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!

44

9/13/07

Private Citizen,
West Long Branch NJ

The court system does not grant access 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 "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 access is just one more step in the direction of a police state. All cases, plea agreements, dispositions, and transcripts of trials should remain open.

45

9/15/07

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. 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. We must practice reasonable restraint and caution but still allowing access without violation of constitutional rights.

46

9/23/07

Karen Moody,
(Chief, Probation & Pretrial Svcs, D. Maine)

 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.

47

9/26/07

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.

48

9/30/07

Private Citizen, Coconut Grove, FL

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.

49

9/25/07 (rec'd 10/1/07)

Chief Judge Michael P. McCuskey (C.D. Il.)

Our court has previously adopted a rule to restrict public internet users or pacer users from having access to plea agreement or other documents in criminal cases which identify a person who is or has cooperated with law enforcement investigations. As such, we have no disagreement with the Justice Department's request to restrict public internet access to these documents. However, our local rule does not limit public access to plea agreements and other documents which are not under seal at the various courthouses throughout the Central District of Illinois. These documents are available for public inspection at the various clerk's offices in the district.

50

10/01/07

Alex Bunin (Fed. Pub. Defender), N.D.N.Y.

Prosecutors have a duty to protect persons with whom they have contracted to provide cooperation in the prosecution of others. Defense lawyers have a duty to protect individual clients. However, from an institutional and policy perspective, I do not believe the value of encouraging cooperation outweighs the benefit of allowing citizens access to public court documents. Cooperation is a suspect practice that can result in false testimony and disparate sentencing. Access to government information is the hallmark of a free and democratic society. The latter is clearly more valuable. Changes in technology will require that judges, prosecutors, and defense lawyers, anticipate their effect. If dissemination of plea and cooperation agreements is now vastly expanded, then lawyers must counsel potential cooperators of that fact. There was always danger. Now, it is just more obvious.

51

10/02/07

Tim Record (Attorney)

I believe these documents should be restricted to the PACER subscription system.  At least until after the case is disposed of.

52

10/03/07

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.

53

10/9/07

Chief Judge Harvey Bartle, III (PA-E)

Our court has adopted a protocol to prevent intimidation of witnesses while preserving public access to court documents not under seal. If this protocol saves one life or one prosecution, we believe it will be a success. As of 9/1/07, all documents on the ECF system related to pleas and sentencing and orders relating to these documents (other than the Judgment and Commitment Order) have been designated on the docket as Plea Documents, Sentencing Document, and Judicial Documents respectively, no matter what their specific content. PACER will contain these designations for anyone accessing the system, but it will no longer make the contents of the documents available to the public electronically and will not identify whether any such documents are under seal.  Under our protocol, the court, the U.S. Attorney's office, and counsel for the specific defendant will continue as before to have full access through PACER to all plea and sentencing documents and related orders not under seal. All such documents not filed under seal will remain available for inspection by the public in the Clerk's Office. Thus, we are not creating secret dockets or keeping documents outside the public record. We acknowledge that our protocol does not solve entirely the whosarat website problem. However, it does make it more difficult for the malefactors to achieve their objective of intimidation.

Our protocol was developed only after in-depth discussions with and input from the U.S. Attorney's Office, the Federal Public Defender, and the Defense Bar. It has the hearty endorsement of all these groups.

We reviewed Rule 49.1(e) of the Federal Rules of Criminal Procedure and do not believe that it conflicts with what we have done. We cannot afford to lost sight of the fact that we are attempting to protect people's lives. We strongly urge that we be permitted to continue with our protocol and that we as well as other courts be allowed at this time to experiment with efforts to combat the nefarious www.whosarat.com.

54

10/9/07

Miriam L. Siefer (Federal Defender Office) Detroit

As a Federal Defender organization, our office is highly sensitive to the concerns expressed by DOJ that electronic access to plea agreements may disclose the identity of cooperators. However, we are also equally sensitive to the need for full public disclosure of information in court records, particularly as such information is often necessary to adequately represent our clients. The identity of cooperators and the terms of their agreements to cooperate are essential pieces of information in preparing to defend a criminal case. Generally, we are in agreement with the Committee's observations regarding the shortcomings of the DOJ proposal to restrict access to all plea agreements in all cases. Establishing an electronic filing system with broad public access has made filings in criminal cases more transparent. To people familiar with federal criminal proceedings, there are other ways than reviewing a plea agreement to determine if an individual has cooperated with the government from the general context of a case. Specifically, cooperation can be inferred from a plea to a drastically reduced charge or from a judgment reflecting a sentence substantially lower than the guideline range. (In an informal study, all those Federal Defenders who responded (20) agreed with the position stated in this letter.) As a rule we favor public internet access to all non-sealed plea agreements. Where extraordinary circumstances justify sealing plea agreements, we believe the existing procedures for doing so and pending Rule 49.1(e) provide adequate safeguards.

55

 10/9/07

Sunshine Investigations

We do not believe a more restrictive system is a good idea. This agency frequently receives CJA-31 appointments to work for defendants in capital cases. A number of these cases involve the testimony of informants who may have received some sort of consideration from the government. Our access to this information is crucial to our ability to adequately defend our clients, particularly because we have an obligation to diligently research the backgrounds of our clients, co-defendants, government witnesses, defense witnesses, and others. The Rule 11 information provides another necessary source of information, especially in non-capital cases. The scoring and sentencing information of similarly situated defendants within the same District is important to address sentencing and scoring issues and for discussing plea agreements with a client (which can save the government a costly trial). Another aspect of our business includes background investigation into witnesses from other cases and pre-employment screening of individuals. In both situations, an individual's prior conduct is very important, particularly where there is a criminal conviction. Because many plea agreements are to charges considerably less than those presented in the indictment, the records of the exact behavior to which the subject admits responsibility are very important for determining things like a witness's credibility of an applicant's employment worthiness. We believe there is already a mechanism in place for District Court judges to seal Rule 11 agreements where there is a legitimate concern for an individual's safety. W e think it is better to handle this on a case-by-case basis rather than through a blanket policy, particularly when many plea agreements do not involve cooperation and/or do not place the defendant at any risk. The proposed changes seem unnecessarily broad and would hinder the pursuit of justice.

Finally, beyond business considerations, we believe the public has an inherent and assumed "right to know" when it comes to the Federal Judiciary, and any impingement upon this right – however necessary in certain situations – must be carefully considered.

56

10/10/07

Fred Williams, Attorney,
Charlotte, NC

Former AUSA (deputy criminal division chief) and government attorney with nearly 30 years experience with plea agreements and privacy issues. Now is of counsel at a law firm and teaches a graduate level course on privacy law and policy. 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 involved serious witness protection concerns, in which witnesses were relocated and given help avoiding their former criminal associates against whom they had cooperated. 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. 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.

57

10/10/07

Tim McGlone (Staff Writer, The Virginian-Pilot) Virginia

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. (Also objects to the redaction requirements currently in place, which make it difficult for reporters to fully identify a defendant who has a common name.)

58

10/12/07

Elaine Terenzi (Chief Probation Officer, M.D. Florida) Tampa

In 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.

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10/24/07

David Beneman (FPD, D. Maine but submitting his personal views)

I am in support of continued public electronic access to all non-sealed aspects of criminal case files, including plea agreements. I am unaware of any threats since the use of ECF (or PACER) which were related to dissemination of information electronically. Instead, my experience with threats to cooperating defendants is based on paper discovery received, often in state cases. DOJ could avoid most of their concerns by using cooperation agreements that are separate from plea agreements. A plea agreement is filed on the docket and must be disclosed to the judge, generally in open court. Cooperation agreements are never mentioned in Rule 11. A cooperation agreement, may or may not need to be disclosed to the judge, depending in part on the terms of the agreement. A cooperation agreement need not be filed nor made part of the docket, obviating any need to seal or any concern of electronic dissemination.

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10/24/07

Mary Alice Baish (Am. Assoc. of Law Libraries) Washington, DC

The AALL does not object to the Justice Department's request to restrict online access to certain sensitive documents. However, we encourage the Conference to consider less restrictive measures, such as redacting particular information from plea agreements, employing a case-by-case analysis to restrict internet access in those cases where it is necessary. We encourage the Conference to adopt the minimum restrictions needed to protect the safety of those defendants who choose to accept plea agreements. If plea agreements are removed, docket and minute entries should remain available through PACER.

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10/25/07

American Bar Association (Criminal Justice Section)

The ABA standards generally oppose restrictions on the public's right to access to court proceedings and pleadings. However, we believe that the Judicial Conference should consider the procedures recently adopted by the Eastern District of Pennsylvania, which we believe are consistent with the existing ABA standards, and which provide an alternative means of addressing the problem posed by the DOJ.

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10/25/07

Federal Bar Council (2nd Circuit, but not judges)

The council does not believe the judiciary should adopt the Department of Justice's proposal. In proposing the restriction of electronic access to plea agreements, DOJ raises valid concerns. Nevertheless, restricting electronic access to plea agreements would not fundamentally address these concerns, and in the long term, may prove to be detrimental to the overall interest of protecting cooperating defendants. The Council believes that procedural mechanisms and protections already in place, specifically the ability to seal sensitive information, better address the concerns raised by DOJ.

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10/25/07

Media Law Resource Center, NY

The MLRC urges the judiciary to reject the blanket proposal and instead continue the practice of providing the same access to plea agreements on the Internet as is available at the courthouse. DOJ's concerns could be addressed through more narrowly tailored means. The proposal as set forth is a significant restriction on the ability of the public to examine records of criminal cases for which there is a strong presumption of public access under the First Amendment and the common law. Of the 95 percent of criminal cases that end in a plea bargain, a "miniscule" subset include a cooperation agreement. It is the cooperation agreement that attracts the attention of those who would harm or harass cooperators. Leaving the plea agreements available at the clerk's office does not materially advance the government's concern about safety. The MLRC instead asks the judiciary to adopt a policy requiring U.S. Attorneys to file plea agreements and cooperation agreements, sealing the latter on a case-by-case basis, for good cause shown. The DOJ's assumption that the notation on the docket of a sealed entry is "often a red flag that the defendant is cooperating with the government" is disputed – plea agreements may be sealed for any number of reasons (matters of national security, for instance, are often sealed, as are sex offense or pleas that raise concerns regarding ongoing investigations). Furthermore, even if the "sealed" notation does "often" raise a "red flag" as to cooperating defendants, it is a far leap from that notation to the receipt of any tangible information about the suspected cooperation. Moreover, the DOJ proposal is premised on the assumption that every cooperator faces an identical risk to his or her physical safety, a factual foundation for the proposal that is self-evidently incorrect. Accordingly, the proposal is fatally overbroad.

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10/26/07

Newspapers Assoc. of America and specific newspaper publishers,

We strongly believe that the current case-by-case approach, grounded in the time-honored balancing analysis that requires the presence of a compelling interest in order to shield a plea agreement from public view, continues to present the appropriate framework for addressing any countervailing concern arising from Internet access to plea agreements.

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10/26/07

Department of Justice, Washington DC

The Department believes that the uniform removal of all plea agreements and corresponding docket entries presents the best balancing of public access with security protection. The Department stresses the need for removal of public access to the docket entry if plea agreements are restricted from public access. Offers its views on four alternative approaches that "may accommodate the Departments' [sic] interests to varying degrees:" (1) file all plea agreements electronically, but limit access court, counsel for defendant and counsel for the government (same as original proposal, but eliminates the DOJ's assumption that plea agreements would be in a paper case file); (2) for the clerk of court to remove remote internet access for particular plea agreements or other criminal documents that contain sensitive information on a case-by-case basis upon the filing of a motion for protective order (presumably under Fed. R. Crim. P. 49.1(e) after 12/1/07); (3) arrange a uniform system of tiered electronic access with the Clerk's office. Under it, certain documents would be restricted to that defendant's counsel and the government, others would be available to a broader group of counsel for all parties, and a third category would be available to the general public; (4) prosecutors file a generic plea agreement in all cases that contains standard and hypothetical references to cooperation. Where actual cooperation occurs, the prosecutor could notify the court of it through a non-public document.

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10/26/07

Reporters Committee for Freedom of the Press, The American Society of Newspaper Editors and the Society of Prof. Journalists

These commenters urge the Judiciary to continue providing public internet access to criminal plea agreements in keeping with the public's longstanding constitutional right of access to courts and court records. Precluding access to this information online does not preclude its widespread access via private Web sites. Safeguards and measures have long been in place to protect against releasing sensitive information that should not be shared with the public. We strongly urge the Judiciary not to strike an entire category of documents form online availability based on unsupported fears, and instead encourage its continued reliance on case-by-case analyses in cases where the release of records may cause actual harm.

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10/26/07

National Assoc. Criminal Defense Lawyers

The proposed blanket prohibition of all references to plea agreements in the PACER system

sacrifices the principle of public access in obeisance to unspecified and conjectural benefits for those who are particularly fearful of being in peril. And it protects those persons only to the slightest degree, by restricting access to one possible source of information about their cooperation with law enforcement only when such exposure might come about through the contents of the PACER system. The impact of the removal of plea agreement content from PACER would have negative consequences for criminal defense attorneys seeking to fulfill their Sixth Amendment mission to afford effective counsel to the accused. Attorneys will not have the ability to compare terms of plea bargains in similar cases or gain information to advise their clients as to what plea terms have been negotiated in like cases.Federal prosecutors, and to some extent Public Defender's offices, will still have knowledge of their offices' own general plea practices in similar cases and circumstances and assistant U.S. attorneys will have the national resources of the Justice Department in recognizing plea and cooperation trends among the U. S. Attorney's offices. The privately retained and court appointed defense counsel and their clients will be deprived of the invaluable contextual and comparative insight about the terms and conditions of all plea agreements of record in similar cases, not just in those plea agreements securing cooperation... It is impossible to achieve the result sought by the Executive Office for the U.S. Attorney with the proposed ban on PACER plea agreement content because the bulk of the information published on websites like www.whosarat.com is not from court records, but from social networks of 'snitch activists' who provide information from personal knowledge, rumor, Internet research and attendance at court proceedings. The narrow exclusion of plea bargains from PACER will handicap legal professionals far more than it will limit this online community's ability to share information about informants, officers and attorneys. Other Internet sources beyond the reach of Court's prohibition supply more information that would give notice of cooperation than does PACER. Westlaw has its Court Express service by which the user can search terms within all federal court electronic documents across multiple jurisdictions. Google, FaceBook and MySpace and all social networking websites could be used for the purpose of gaining information about or exposing cooperating individuals and informants.

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10/29/07

Anita Chavez, Chief U.S. Probation & Pretrial Office, D. New Mexico

The District of New Mexico agrees with the Department of Justice proposal, and would respectfully request that electronic access to plea agreements for cooperating defendants by non-related case parties be restricted, since it relates directly to the safety of officers. This restriction should include any documents in the Court file which identifies cooperation with law enforcement by any defendant. Should this sensitive information be broadcast on websites such as www.whosarat.com, it gives me grave concern for not only the well being of my officers in New Mexico, but for officers serving the Federal Judiciary across this country. Anyone wishing to retaliate against cooperating defendants could place an officer's life in harm's way during a routine home visit. The safety of these officers, as well as the cooperating defendants they supervise, should be of paramount importance. Making the plea agreements available at the clerk's office is also a safety-related concern. To address these concerns, the protective order issued by the Court under Fed. R. Crim. P. 49.1(e) could redact cooperation information for public access purposes.