From the Hotline

From the Fall 2008 issue of The News Media & The Law, page 25.

The Reporters Committee operates a toll-free hotline for journalists with questions about free press and freedom of information issues. In this column, our attorneys discuss the latest hot-topic questions.

Note: The attorneys’ answers are not meant to be relied upon as legal advice specific to any reader’s situation. Rather, answers are for informational purposes to help journalists understand how the law affects their work. Consult a lawyer for help with any specific situation, or call the Reporters Committee’s legal assistance hotline for more information or for help in finding an attorney.

Q: While covering my local federal court, I recently noticed two sentencing hearings that were closed to the public. The court’s online schedule only shows the time and the words “sealed sentencing.” There is no name or case number listed, and the court deputy said she could not give me any information beyond the fact that the hearings were closed to the public. What can I do to challenge this closure?

A: The public and the press have a presumptive right of access to criminal court proceedings. But it can be difficult to intervene formally and challenge a closed hearing where you don’t know the name or case number. If there is a hearing prior to the closure, you can identify yourself as a reporter and politely assert your right to observe court proceedings.

If there is no opportunity to object in person, you can write a letter to the judge (or the chief judge of the district if you don’t know who is presiding over the sealed case). You should file the letter with the clerk’s office and send copies to the parties if you can find out who they are. Your letter can say that you understand there will be a closed hearing at the time listed, and respectfully request that the hearings be opened. If the court does not do so, it should at least issue on-the-record findings that there is a compelling interest in closure and that there is no other way to serve that interest. Finally, you can ask the court to give the public a chance to challenge the closed hearings in open court before they occur.

Often, this is enough to unseal the hearing, or at least find out more information about the case. If your letter is ignored, or your request is rejected, you should talk to the Reporters Committee or a local media lawyer about other options for challenging secret court proceedings.

Q: When the local police make an arrest, it’s easy to get information from them about who was arrested and where. But recently the U.S. Marshal’s service made an arrest in my town and they wouldn’t release any information. Don’t they have to under FOIA?

A: Unfortunately, it’s not as easy to get arrest records and incident reports from the federal government as it can be to get them from local officials. Most state sunshine laws have some provision which guarantees arrest records are open when state law enforcement officials make the arrest.

However, when federal officials make an arrest, the records are governed by the Freedom of Information Act and the Privacy Act.

In cases interpreting FOIA, courts have ruled that arrest records are similar to rap sheets, and thus can be exempt from disclosure under the privacy protections in FOIA. A D.C. District Court even held in a 1992 case, Epps v. Dep’t of Justice, where a prisoner requested information, including felony arrest records, from the FBI and Drug Enforcement Administration that the arrest records were “categorically exempt from disclosure.”

In many cases, it is possible to request information from the FBI that includes arrest data and incident reports if the requester has a Privacy Act waiver from the person that the information is about.

Arrest warrants are also public in many cases. And in situations where local jails hold federal prisoners, it may be possible to use state open records laws to access information about the federal detainees.