February 28, 2003
SEALED COURT CASES
By: Susan Price-Livingston, Associate Attorney
You asked for more information about the docket of “super-secret” cases in Connecticut’s state courts.
Connecticut statutes and court rules, some of which are applicable to family courts in particular, permit judges to exclude the public from courtrooms and order confidentiality for documents in court files. But none specifically authorizes the so-called “super-secret” Level One cases. All information about Level One cases, including case captions and docket numbers, is confidential. Internal court guidelines specify procedures to ensure that publicly available court calendars and daily logs make no reference to Level One cases and that court opinions issued in them are not published. Court employees have been instructed that they can neither confirm nor deny the existence of any Level One case.
Each of the criminal, housing, and civil/family matters sessions of the Superior Court have Level One guidelines currently in place. As of January 29, 2003, there were 104 such cases on the civil/family docket (See OLR Report 2003-R-0173 for a description of the court’s internal rules and the distribution of these cases throughout the state. )
On February 3, 2003 Chief Justice Sullivan announced that a group of judges he asked to review the practice of sealing files unanimously concluded that the current practice must be discontinued. In agreement with the judges’ group, Sullivan found that secret files may undermine public trust and confidence in state courts. It appears likely that the judges will approve a change in Practice Book rules at their June annual meeting.
We found no case reported in Connecticut or elsewhere specifically dealing with super-secret court cases. State and federal courts have uniformly held that the U. S. Constitution’s First Amendment guarantees the public qualified access to civil trials and court records. Some courts have also found a separate right of public access based on a state constitution’s “open court” provisions or from common law principles pre-dating constitutions.
The closest analogy we found to Connecticut’s Level One procedures is the secrecy mandated for Immigration and Naturalization Service (INS) “special interest” deportation cases. The U. S. Attorney General has designated as “special interest” some cases involving people suspected of having information about the September 11, 2001 terrorist attacks. The INS places these cases on a secret docket and hears them in courtrooms closed to visitors, family, and the press. Guidelines direct that casefiles and electronic records have conspicuous warnings so that agency personnel will not disclose anything about these cases, including confirming or denying their existence.
One federal appeals court has upheld the INS guidelines on national security grounds. But another circuit court has ruled that they violate the news media’s First Amendment right to access to deportation hearings and records.
ANTICIPATED COURT RULE CHANGES
In announcing that the current Level One procedures should be changed, Chief Justice Sullivan concluded, “The court system exists for the benefit of the citizens it serves and is the cornerstone of our democracy. As such, the judiciary has the obligation to ensure that the administration of justice occurs in an open forum, unless there is an extraordinarily compelling reason to do otherwise. ”
The chief justice and the chief court administrator have referred the matter to the Rules Committee of the Superior Court Judges. Melissa Farley of the Judicial Department reports that the committee will seek public comment on proposed changes and then draft language for the judges to vote on at their annual meeting in June.
Rules changes generally become effective January 1 of the year following their approval, according to Farley. In the meantime, Chief Family Court Judge Gruendel has sent a memo to all family court judges alerting them that the Rules Committee is considering a rule change to ensure that the existence of a file is not kept secret. His memo states, “While you still have whatever discretion permitted by current law, you might keep this initiative in mind if you are asked to seal a file in that manner. ”
CONNECTICUT LAWS AND COURT RULES AUTHORIZING CONFIDENTIALITY IN FAMILY COURT PROCEEDINGS
Section 46b-11 of the General Statutes, originally enacted in 1959, authorizes judges to hear family relations matters in a courtroom from which the public and press have been excluded “if the judge hearing the case determines that the welfare of any children involved or the nature of the case so requires. ” Family relations matters affect or involve divorce, paternity, child support and custody, pre- and post-marital agreements, conservatorships, certain civil commitments, and “matters concerning children or family relations as may be determined by the judges of the Superior Court” (CGS § 46b-1).
Section 46b-49, enacted as part of the comprehensive 1973 divorce reform legislation, authorizes a family court to exclude the public from hearings “when it considers it necessary in the interests of justice and the persons involved. ” In such cases, judges can exclude all persons except the officers of the court, a court reporter, the parties, their witnesses, and their counsel. This law applies to all family relations matters and related hearings involving family court investigations, child support recoveries, and nonsupport prosecutions; dissolutions of joint tenancies when spouses divorce or have their marriage annulled; and will revocations.
CONNECTICUT COURT RULES
Practice Book rules originally adopted by the Superior Court judges in 1995 also contain courtroom closure and record confidentiality provisions for family and other court matters. Practice Book § 25-59 provides: “Subject to the provision of Section 11-20, any family matter may be heard in chambers or in a courtroom from which the public and press have been excluded, and the records and other papers in any family matter may be ordered by the court to be kept confidential and not to be open except under order of the court or a judge thereof. ”
Section 11-20(a), in turn, states the general rule that courts not order court proceedings or files to be sealed. Subsection (b) allows a court to seal a file "if the judicial authority concludes that such order is necessary to preserve an interest which is determined to override the public's interest in attending such proceedings or viewing such materials. Any such order shall be no broader than necessary to protect such overriding interest. " When closure is ordered, subsection (c) requires the judge to state on the record in open court the overriding interest being protected and the basis for this determination.
Access to Court Proceedings and Files
The basic First Amendment rule is that court proceedings that have been historically open to the public and in which public access plays a significantly positive role may be closed only if based on a finding that closure is essential to preserve higher values and is narrowly tailored to serve that overriding interest (Press-Enterprise Co. v. Superior Court, 478 U. S. 1 1986)). The U. S. Supreme Court has also found a common law (judge-made) presumption that the public has the right to copy and inspect court records (Nixon v. Warner Communications, Inc. , 435 U. S. 589, 597-598 (1978)). But it has also found that courts have inherent authority to limit public access to records when their use is for spiteful purposes or to serve as “reservoirs of libelous statements for press consumption” (Id. ).
Rationales for giving the public and press access to court proceedings and records include (1) enhancing the quality and safeguarding the integrity of the factfinding process, (2) fostering the appearance of fairness and public respect for the judicial process, and (3) permitting the public to participate in and serve as a check upon the judicial process (Richmond Newspapers, Inc. v. Virginia, 448 U. S. 555 (1980)). A Connecticut federal court judge identified the following basis for the constitutional rule:
The adjudicative process…is a function of the law which is derived from the community’s delegation to the courts and to the legislature of the power to establish and enforce the substance of the law. That process is a matter of public concern as the enforcement of the law has a broader impact than just the decision in the dispute of particular parties. So also the community has a real concern as to the process by which the law is justly enforced. The public’s concern is accommodated by the openness of the court’s record. By access to the record, the public best ensures that the authority it has delegated to the courts and the substantive law enacted under the authority delegated by the community are exercised and enforced consistent with the charge to the court implicit in the delegation of authority.
Hartford v. Chase, 733 F. Supp. 533, 535 (D. Conn. 1990), reversed on other grounds, 942 F. 2d 130 (2d Cir. 1991).
Connecticut appellate courts have approved limited courtroom closures and record sealing when ordered to restrict disclosure of testimony related to minor children (Genmarini v. Genmarini, 2 Conn. App. 132, 1139 (1984)) and to protect non-public information about a large, publicly-traded corporation (Wendt v. Wendt, 59 Conn. App. 656 (2000)). But they have reversed trial court sealing orders when the judge failed to articulate on the record the overriding reasons being protected (Doe v. Roman Catholic Diocesan Corp. , 51 Conn. App. 287 (1998)).
Published trial court opinions indicate that courts have declined to seal files when a party argued that it was necessary to protect his good reputation (Reed v. Zyzka, 24 C. L. T. 26 (1998)) or when a party raised only generalized concerns about damage flowing from financial disclosures (Sabanosh v. Durant, 1997 WL 804871 (Dec. 17, 1997)).
Use of Fictitious Names
A litigant’s right to use a fictitious name also implicates the First Amendment and the principle of open courts (See J. Steinman, Public Trial, Pseudonymous Parties: When should litigants be permitted to keep their identities confidential? (Hastings L. J. 3-18 (1985)). The Connecticut Supreme Court has ruled that such a right ought to be granted only in the rare case where (1) the nature of the issue litigated and the interest of the parties demand it and (2) no harm can be done to the public interest (Buxton v. Ullman, 147 Conn. 48, 60 (1959)).
Trial courts applying this rule have concluded that permission to proceed anonymously may be appropriate in situations involving social stigmatization, real danger of physical harm, or risk of an unfair trial (Doe v. Diocese Corp. , 43 Conn. Supp. 152, 158 (1994)). Reported court cases generally conclude that there must be a strong social interest in concealing a party’s identity. Anonymity was approved in a civil action that a man convicted of having sexual intercourse with minor girls filed against the girls and their parents, based on the statutory prohibitions against revealing sexual assault victims’ names (Doe v. Minor Female One, 33 Conn. L. Rptr 359 (Oct. 25, 2002)). But the possibility that a
litigant may suffer some embarrassment, economic harm, or loss of reputation have been found not to be sufficiently overriding interests to justify anonymity (ABC, LLC v. State Ethics Commission, 31 Conn. L. Rptr. 339 (Dec. 12, 2001)).
“SPECIAL INTEREST” DEPORTATION CASES: THE CREPPY DIRECTIVE
On September 21, 2001, Chief Immigration Judge Michael Creppy issued a directive to all U. S. immigration judges requiring closure of “special interest” cases. The directive requires that all proceedings in such cases be closed to the press and public, including family members and friends. Records of the proceedings cannot be disclosed to anyone except a deportee’s attorney or representative, “assuming the file does not contain classified information. ” This restriction on information includes confirming or denying whether such a case is on the docket or scheduled for a hearing.
The only two federal appellate courts that have been asked to grant the media access to information about special interest cases have disagreed on whether the secrecy rules violate the First Amendment. The Third Circuit ruled that national security concerns override a newspaper’s right of access (North Jersey Media Group v. Ashcroft, 308 F. 3d 198 (3d Cir. 2002)). But the Sixth Circuit concluded that, although ongoing anti-terrorist investigations implicate a compelling governmental interest, the guidelines are unconstitutional because they are not narrowly tailored and do not require the immigration judge to make particularized findings before ordering closure (Detroit Free Press v. Ashcroft, 303 F. 3d 681 (6th Cir. 2002)).