5.01 Procedures for the Release of Information Pertaining to
Activities Under the Criminal Justice Act and Related Statutes
A. General Principles.
Neither the Freedom of Information Act (5 U.S.C. § 552) nor the Privacy Act (5 U.S.C. § 552a)
applies to the Judiciary and neither is applicable to requests for release to the public of records and
information pertaining to activities under the Criminal Justice Act (CJA) and related statutes.
Generally, such information which is not otherwise routinely available to the public should
be made available unless it is judicially placed under seal, or could reasonably be expected
to unduly intrude upon the privacy of attorneys or defendants; compromise defense
strategies, investigative procedures, attorney work product, the attorney-client relationship
or privileged information provided by the defendant or other sources; or otherwise adversely
affect the defendant's right to the effective assistance of counsel, a fair trial, or an
impartial adjudication. (See 5 U.S.C. § 552(b).)
Upon request, or upon the court's own motion, documents pertaining to activities under the
CJA and related statutes maintained in the clerk's open files, which are generally available
to the public, may be judicially placed under seal or otherwise safeguarded until after all
judicial proceedings, including appeals, in the case are completed and for such time
thereafter as the court deems appropriate. Interested parties should be notified of any
modification of such order.
Requests for release of information pertaining to activities under the CJA and related statutes
in the custody of the Administrative Office will be disposed of in accordance with internal
directives of that office.
B. Payment Information
For All Payments in Cases Commenced Before April 24, 1996:
The general principles regarding the release of information stated in subparagraph 5.01 A govern.
For Payments to Providers of Services other than Counsel in Cases Commenced on or after
April 24, 1996, and for Payments to Attorneys in Cases Commenced on or after April 24,
1996 but before January 25, 1998:
The Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. No. 104-132, 110 Stat.
1214, amended the CJA, 18 U.S.C. § 3006A, and the Anti-Drug Abuse Act of 1988
(ADAA), codified in part at 21 U.S.C. § 848(q), expressly to provide for disclosure to the
public of the amounts paid for representation with respect to cases commenced, and appellate
proceedings in which an appeal is perfected, on or after April 24, 1996. With respect to non-
capital cases, the CJA, as amended, 18 U.S.C. § 3006A(d)(4) and (e)(4), provides that the
amounts paid under those subsections in any case "shall be made available to the public."
With respect to capital cases, the ADAA, as amended, 21 U.S.C. § 848(q)(10)(C), provides
that the amounts paid under that paragraph in any case "shall be disclosed to the public, after
the disposition of the petition." The timing of disclosure should be consistent with the
principles stated in subparagraph 5.01 A. But see below regarding further legislation and
requirements for payments to attorneys only in cases commenced on or after January 25,
1998.
For Payments to Attorneys Only in Cases Commenced on or after January 25, 1998:
The Fiscal Year 1998 Judiciary Appropriations Act, Pub. L. No. 105-119, 111 Stat. 2440,
amended paragraph (d)(4) of the CJA, 18 U.S.C. § 3006A, to mandate disclosure of amounts
paid to court appointed attorneys upon the court's approval of the payment. The Fiscal Year
2000 Judiciary Appropriations Act, Pub. L. No. 106-113, 113 Stat. 1501, further amended
paragraph (d)(4) to provide that, in death penalty cases where the underlying alleged criminal
conduct took place on or after April 19, 1995, the amount of the fees shall not be considered
a reason justifying limited disclosure. (Although amended paragraph (d)(4) expired on
January 24, 2000, the guideline below continues to apply as a matter of Judicial Conference
policy.) Prior to approving such payments, courts are required to provide reasonable notice
of disclosure to counsel in order to allow the counsel to request the redaction of specific
information based on the considerations set forth in subparagraph (d)(4)(D) of the CJA (and
listed below in subparagraph 5.01B(2)(a)). To comply with this notice requirement, it is
recommended that, contemporaneously with the issuance to counsel of the CJA 20 or CJA
30 form, courts give appointed counsel a copy of the form created and distributed by the
Administrative Office ("Notice to Court Appointed Counsel of Public Disclosure of Attorney
Fee Information").
To satisfy the requirements of this law, courts may release copies of the payment vouchers
(the top sheets of completed forms CJA 20 or CJA 30), redacted or unredacted, depending
on the stage of the particular case and the statutory considerations involved.
Documentation submitted in support of, or attached to payment claims, is not covered by the
law and need not be disclosed at any time.
Attorney payment information should be made available as follows:
(1) FOR ATTORNEY PAYMENTS APPROVED BEFORE OR DURING THE
TRIAL: After redacting any detailed information provided to justify the expenses,
the court shall make available to the public a copy of the voucher showing only the
amounts approved for payment. Upon the completion of trial, an unredacted copy
of the voucher may be released, depending on whether an appeal is being pursued and
whether the court determines that one or more of the interests listed in subparagraph
5.01 B(2)(a) require the redaction of information.
(2) FOR ATTORNEY PAYMENTS APPROVED AFTER THE TRIAL IS
COMPLETED: The court shall make available to the public either a redacted or an
unredacted copy of the voucher as follows:
(a) If trial court proceedings have been completed and appellate review is
not being pursued or has concluded at the time payment is approved: The
court shall make an unredacted copy of the payment voucher available to the
public unless it determines that one or more of the interests listed below
justify limiting disclosure to the amounts approved for payment in the manner
described in subparagraph 5.01 B(1). The interests that may require limiting
disclosure include:
i. the protection of any person's 5th Amendment right
against self-incrimination;
ii. the protection of the defendant's 6th Amendment right to
effective assistance of counsel;
iii. the defendant's attorney-client privilege;
iv. the work product privilege of the defendant's counsel;
v. the safety of any person; and
vi. any other interest that justice may require (with the
exception that for death penalty cases where the underlying
alleged criminal conduct took place on or after April 19,
1995, the amount of the fees shall not be considered a
reason justifying any limited disclosure).
(b) If appellate review is being pursued at the time payment is
approved: The court shall make available to the public only the amounts approved for
payment in the manner described in subparagraph 5.01 B(1) unless it finds
that none of the interests listed above in subparagraph 5.01 B(2)(a) will be
compromised.
(3) FOR ATTORNEY PAYMENTS APPROVED AFTER THE APPEAL IS
COMPLETED: The court shall make an unredacted copy of the payment voucher
available to the public unless it determines that one or more of the interests listed in
subparagraph 5.01 B(2)(a) justify limiting disclosure to the amounts approved for
payment in the manner described in subparagraph 5.01 B(1).
5.02 Annual Report of Attorneys Claiming Compensation for
More Than One Thousand Hours. Not later than three months after the end of each fiscal year, the
Administrative Office shall prepare reports listing all attorneys who have claimed compensation of more
than one thousand hours of services in the preceding fiscal year. The chief judge of each
court of appeals and each district court shall receive a copy of the report regarding
attorneys within that district or circuit.
|
