Judges decide to release financial disclosure forms to news service

From the Spring 2000 issue of The News Media & The Law, page 7.

Reversing a decision made by its Committee on Financial Disclosure, the U.S. Judicial Conference voted 16-8 on March 14, 2000, to release financial disclosure forms for all members of the federal judiciary to APBnews.com, a web-based news service that had previously announced that it would be posting the disclosure forms online.

The Administrative Office of the U.S. Courts stated that it has rescinded the December 1999 decision of the financial disclosure committee “to withhold the release of judges’ financial disclosure reports where the requester indicates that the reports will be posted on the Internet.” The Administrative Office also released a memorandum written by U.S. Supreme Court Chief Justice William Rehnquist and addressed to the Judicial Conference that recommended release of the forms.

*

Twenty-six federal judges comprise the U.S. Judicial Conference, which is chaired by U.S. Supreme Court Chief Justice William Rehnquist and which makes policy for all federal courts. Fort Lauderdale Federal District Judge William Zloch chairs the conference’s financial disclosure committee, which includes 15 federal judges.

A 1998 amendment to the Ethics in Government Act of 1978 allows a federal judge to temporarily withhold financial disclosure statements — which list stock holdings and other financial interests — from public disclosure “only to the extent necessary to protect” the judge.

Requests for a federal judge’s financial disclosure statement are not handled under the federal Freedom of Information Act, which only applies to the executive branch of government. Instead, a request must be made in writing to the administrative office in Washington, and the judge whose form has been requested must be informed of the request and the name and occupation of the person making the request before the information is released.

Web-based APBnews.com submitted a request to the Administrative Office of U.S. Courts for copies of the 1998 financial statements of all federal judges and intended to put all of the records on its web site. The news organization mailed a check for approximately $2,500 to cover copying fees for approximately 12,500 pages of documents in November 1999.

Before the APBnews.com request was filed and while it was pending, other news organizations had posted some of the information on their web sites, including The Kansas City Star and WNBC-TV in New York City.

Zloch instituted a moratorium at the beginning of December 1999 that indefinitely halted the public release of financial disclosure forms of more than 1,600 federal judges. Zloch’s action, which was taken at the beginning of December but which was made public on Dec. 7, kept the Administrative Office of the U.S. Courts in Washington from releasing the information to APBnews.com. Zloch also called an emergency meeting of the committee for Dec. 10, 1999.

The Reporters Committee for Freedom of the Press filed a protest letter with the committee and its individual members. The letter acknowledged “the legitimate concerns over security problems that may accompany release of too much personal information.” But it noted that “conjecture about potential harm neither justifies withholding information that helps inform the public about the judiciary nor outweighs the public benefit that accompanies abiding by congressional intent and releasing the financial disclosure forms. . . . [T]he issuance of a secret moratorium barring the legislatively mandated disclosure of information violates a legislative enactment, impairs the media’s constitutional rights to gather information, and harms the public’s trust in the judicial branch.”

Following the four-hour emergency meeting, the Committee on Financial Disclosure announced Dec. 14 that it was lifting the two-week-old moratorium but rejected the request of APBnews.com to get copies of the forms for posting on the Internet.

The committee stated that releasing the records to APBnews.com for posting on the news agency’s web site would allow any visitors to APBnews.com to view a judge’s disclosure form without that judge knowing who was gaining access to his or her records. Therefore, according to the committee, granting APBnews.com’s request would lead to the violation of the law, because those viewing the forms on the Internet would not be following the established procedure.

APBnews.com announced in response that it would file a lawsuit for release of the information. It also issued a press release quoting the chairperson of the House of Representatives’ subcommittee that oversees the federal courts as saying that he wanted to hold a hearing to consider the legality of the committee’s decision.

APBnews.com filed its lawsuit in the federal District Court in New York City. The lawsuit named the committee, the individual members of the committee, the Administrative Office of U.S. Courts, and the U.S. Marshals Service as defendants. It requested that the court require the committee to release all of the forms to APBnews.com without assessing any copying fees, declare that the committee violated the U.S. Constitution and federal statutes and award APBnews.com attorney’s fees and costs.

APBnews.com alleged that the disclosure reports are judicial records that should be made available to all of the public, including the news service. It also alleged that the rejection of the request for copies of the reports abridges its access rights under the First Amendment and the Fifth Amendment’s equal protection and due process provisions.

APBnews.com later added a First Amendment “right-to-publish” claim to its federal lawsuit. The new First Amendment claim alleges that APBnews.com properly submitted its request for copies of the disclosure reports and that the denial of the request “necessarily implies that if APBnews.com posts copies of disclosure reports on its Web site, it and its employees may become the subject of criminal or civil proceedings and any sanctions that flow therefrom.” According to the complaint, that implication violated the U.S. Constitution because “the First Amendment does not permit the imposition of sanctions on the publication of truthful information contained in records that are open to public inspection. . . . [Therefore, the defendants] have improperly, unlawfully and unconstitutionally violated APBnews.com’s First Amendment right to publish.”

As the lawsuit was pending, The Spokesman-Review of Spokane posted information on its web site that it took from its copies of the financial disclosure forms of six federal judges.

Before trial, the U.S. Judicial Conference voted 16-8 on March 14 to reverse the decision of the financial disclosure committee and to release financial disclosure forms for all members of the federal judiciary to APBnews.com. The decision was announced at the Conference’s biannual meeting by Judge Ralph Winter, chief judge of the U.S. Court of Appeals in New York City (2nd Cir.).

The Judicial Conference also released a six-page Feb. 15 “Memorandum to Members of the Judicial Conference” written by Rehnquist. The memorandum explained that the conference’s executive committee “unanimously opposes the Financial Disclosure Committee’s decision” and added five of the Chief Justice’s own “observations for your consideration.”

Included among Rehnquist’s observations were the following: that “it is to be expected that closer public scrutiny will be applied when judges decide issues affecting judges”; that although “some distinctions may be made with regard to a judge’s potential exposure to threats as compared with other government officials, on balance Congress as of now has determined that government officials from all three branches should file public disclosure reports”; that even if the APBnews.com lawsuit failed, “success in court could prove to be a Pyrrhic victory” because both Democratic and Republican Senate and House leaders had expressed support for passing additional legislation to ensure that all of the reports can be disclosed.

The Administrative Office’s press release accompanying the announcement of the decision noted that the Judicial Conference was instructing three of its committees “to consider proposed legislative amendments to the Ethics in Government Act that would balance the public’s need for information on judges’ financial interests with judges’ security needs.” It added that while those committees considered the legislative amendments, the Disclosure Committee will now invite a judge to review the information contained in his or her report when a request is made “that may result in dissemination [to the public] of the report” and that “the judge may request redaction of personal and sensitive information that is otherwise confidential and could endanger the officer or other person if obtained by any member of the public hostile to the judicial officer.”

As of mid-April, the lawsuit was still active, but the court had scheduled a hearing to determine if it should be dismissed as moot — even though APBnews.com had not received any of the reports by that time.