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Sunday, August 19, 2007

Courts - "Sealed documents in otherwise 'unsealed' cases" redeux

This ILB entry from July 12th reported on the ILB's efforts to assure that there are docket entries in all cases on the appellate docket in Indiana, whether they are entirely sealed, or contain some sealed material. At the time, the ILB wrote:

The ILB was very surprised today when it attempted to check the docket in the recent case of Guardianship of Patrick Atkins; Brett Conrad v. Thomas Atkins and Jeanne Atkins, which was reported here on June 27th. A search using the docket number, 29D01-0506-GU-44 (lower court), and 29A02-0606-CV-471 (court of appeals) returns no results other than "No records found for this search." Efforts using the litigants names also returned no results.
The ILB contacted the Clerk of the Court and ultimate received this response:
Your understanding is absolutely correct -- you should have been able to find out from the public on-line docket that an appeal in the Atkins matter had been filed and that the case had been sealed by court order. * * * I do not know why Atkins is not appearing on the docket in a limited fashion like it should be, as it was my understanding that this issue had been put to rest last February. I have, however, contacted our Director of IT to find out why, and he has assured me he will look into it. Hopefully, he finds it to be a glitch with Atkins only and not a systemic problem. I appreciate your bringing this issue to my attention so I can work to get it corrected.
This problem is not unique to Indiana, as a number of previous ILB entries about "sealed" cases in other jurisdictions will attest.

Today Frank Geary of the Las Vegas Review-Journal reports:

Clark County's District Court authorities now admit they don't know how many lawsuits have been sealed from public view, why they were sealed, how many were sealed inappropriately, or who sealed many of them.

Judges making their own rules, clerks sealing court records without legal authority, and an outdated computer system were causes courthouse administrators last week blamed for interference with public access to court records that should not have been sealed.

Though ongoing for years, the scope of the problems was brought to light only after a Review-Journal series earlier this year and the court's subsequent examination of its own practices.

Chief Judge Kathy Hardcastle said the court is developing new policies for handling sealed cases and individual court records, in part because the Nevada Supreme Court is considering statewide regulations on the same issues, and calling on local courts to provide better public access to court information.

"Some of the business practices were put in place 50 years ago when everything was on paper. We are looking at our practices, asking if they make sense and asking that, if they don't make sense, why are we doing it this way," Hardcastle said. "The more we delve into it, the more we realize there is more work there than what was on the surface."

Lucy Dalglish, executive director of the Arlington, Va., based Reporters Committee for Freedom of the Press, said courts in other states and the federal court system are experiencing similar problems with computer databases, and that it's "ludicrous" public access isn't given greater consideration before new computer systems are installed.

"Obviously, this is a problem. We have a presumption in this country, particularly with the criminal courts but also with civil matters, that anything filed with the courts is public. This goes way back to English Common Law. This isn't anything new, and it should have been in the forefront of the brain of anyone who designed a computer system to manage court records," Dalglish said. "This is important and the public has a need and right to know what the justice system is up to."

Entire lawsuits, and individual records within lawsuits, have been sealed from public view inappropriately either because improperly trained clerks entered data into the courthouse computer using inconsistent methods, or because the 15-year-old computer system wasn't programmed to distinguish sealed lawsuits correctly in a database that holds thousands of cases, court administrators said. [ILB - This is the situation that seems to be the case in Indiana's appellate docket.] * * *

"They are not sealing some cases that should be sealed, and, in some cases, they are sealing the whole thing (case) when the whole case shouldn't be sealed. ... It's been hard to identify the practices and where the inconsistencies are," Hardcastle said. "In some cases, clerks made the decision to automatically seal case records, even though there was no court order to seal the records. We are identifying these practices so that we can have consistent practices across the board."

The District Court established an internal committee earlier this summer to look at a variety of problems affecting public access to court records, including how sealed cases and court records are handled; how to clean up the records before a new, $8.1 million computer database is launched next year; and how to protect personal information contained in court records while making them public, Hardcastle said. * * *

"With respect to the civil caseload, it's hard to distinguish whether a case has a record sealed or whether the entire case is sealed," Short said. "You would have to go case by case to determine whether a case has a record or two sealed or whether the entire case is sealed."

The database contains tens of thousands of cases.

Short said it's vital that court staff separate the sealed cases from the cases with a record or two sealed before any case information is fed into the new computer database next year.

Staff could identify all those cases that are sealed or have a sealed record and separate them so the same confusion isn't duplicated, he said.

However, the situation could prove more difficult than that.

The Review-Journal located several sealed lawsuits in the database that were missing from a list of sealed cases provided to the newspaper by court administrators earlier this year. The newspaper received a list of about 390 sealed lawsuits filed between 1990 and 2006.

Since receiving the list, and while doing research on sealed cases and other topics, the newspaper came across a dozen lawsuits that had been sealed since 1990 and that were not included on the District Court's computer-generated list of sealed cases. If the computer database couldn't identify all the sealed cases for the Review-Journal, the question arises whether it can provide a comprehensive list for court administrators.

For instance, none of the five sealed lawsuits involving controversial real-estate developer Jim Rhodes were included on the list of sealed civil cases provided to the newspaper. Nearly one lawsuit per year involving Rhodes was sealed by a judge between 1998 and 2003, a period during which he was sued by home buyers, business partners and others.

Rhodes, the developer of the Rhodes Ranch development in southwest Las Vegas whose bid to build a massive housing project next to Red Rock Canyon was shelved in the face of public outrage, was mentioned as a generous campaign contributor during the recent bribery trials involving former county commissioners who are now in prison or on their way there.

Posted by Marcia Oddi on August 19, 2007 06:28 PM
Posted to Courts in general