U.S. judges to colleagues: put fewer civil cases under seal

Kirsten Berg | Secret Courts | Feature | September 13, 2011

Too many civil lawsuits are closed off to the public, according to the policy-making body of the federal justice system, which unanimously recommended today that U.S. judges limit the number of cases kept under seal.

Civil case files should only be sealed when it is required by statute or “justified by a showing of extraordinary circumstances," according to the policy passed by the Judicial Conference, a body of senior circuit court judges that suggests rules for federal courts.

The conference also encouraged judges to consider alternatives to sealing entire case files such as sealing only discrete documents, redacting parts of documents and lifting seals when the reason for keeping information from the public has ended.

Chief Judge David Sentelle, a federal appeals court judge for the D.C. Circuit who spoke on behalf of the conference, said that judges “should not do something in secret” without compelling reasons, the Associated Press reported.

A report published by the Federal Judicial Center found that federal courts placed 576 of 245,326 civil cases filed under seal in 2006. Most of the sealed cases involved false claim actions, whistleblower suits that are sealed to provide the government with time to take the lead in a case, or because one or both parties in the case wanted to keep facts in the suit private, according to the study.

The same report also highlighted the lack of standards used to decide when to seal cases.

Currently, federal courts across the nation have varying procedures for determining when a civil case should be put under seal.

Most U.S. courts have held that there is a qualified First Amendment right of access to civil courts and that judges must, before restricting public access to cases, articulate specific, on-the-record findings demonstrating that closure is necessary to serve a compelling government interest and narrowly tailored to serve that interest. Other courts, however, continue to take the wider approach, making closure decisions by balancing the interests of the parties involved with those of the public and the press.