When citizens think of the issue of openness in government, they usually thinks of the Executive Branch and FOIA requests to access information. But the functioning of the Judicial Branch also creates significant but often unacknowledged instances of lack of transparency that can significantly affect public health & safety.
One such area is court-approved secrecy in the form of protective orders and sealed documents as the outcome of federal civil cases, frequently in product liability cases. Plaintiffs have sued for injuries sustained due to such issues as medical drugs and devices, defective car parts or dangerous cribs and playground equipment. Very frequently they have had to acquiesce to defendant company demands for secrecy, to ensure that they would be individually compensated. Few plaintiff’s attorney are willing to risk challenging this demand for secrecy as it might jeopardize their client’s chances for a settlement.
Judges with heavy caseloads are concerned with achieving speedy and concrete resolutions to the cases. And so may all to often accede to the demands for secrecy.
While consumers may have reported their injuries to a government agency. Almost all the information that results from their court case becomes inaccessible after a settlement. This is information that could be reported to alert other consumers of the hazards associated with a particular product.
This situation in our court system has been “under the radar” mostly due to the extremely restrictive confidentiality agreements that may only have the court docket showing that the action was dismissed by agreement between the parties. These practices virtually cloak the conduct of cases filed against product manufacturers, hiding the evidence of patterns of injuries that do not get disclosed to government or to the public.
“Under current law, there are no limitations on settlement agreements, reached privately or filed with the court, regarding the restriction of public health or safety information. As with protective orders, judges are free to consider public health and safety when reviewing other orders that restrict access to information, including settlement agreements, but no such consideration is required. ”
An attempt by Congress to ameliorate this legal but obviously socially costly process, has taken the form of a bill S.623, “The Sunshine In Litigation Act Of 2011″, reported by the Senate Judiciary Committee this past August. According to the report (Senate Report 112-045), the bill “…will not displace current practices under the Federal Rules of Civil Procedure or common law. Instead, it merely requires an additional step–consideration of public health and safety–before issuing protective orders, orders sealing court records, or settlement agreements in cases pleading facts relevant to public health and safety. ”
It is hoped that if this bill becomes law, it will put a brake on the too easily granted confidentiality in these civil cases and bring to light issues that have for too long been effectively hidden from government agencies and the public.
The federal courts themselves are addressing the issue of the too easily granted sealing of records in federal civil cases, as evidenced by their own new guidance on the practice :
From “The Third Branch”, September 2011
Judicial Conference Approves Standards & Procedures for Sealing Civil Cases
“At its September meeting, the Judicial Conference adopted a national policy that encourages federal courts to limit those instances in which they seal entire civil case files. The policy emphasizes that “an entire civil case file should only be sealed when . . . sealing . . . is required by statute or rule or justified by a showing of extraordinary circumstances and the absence of narrower feasible and effective alternatives, such as sealing discrete documents or redacting information, so that sealing an entire case file is a last resort.”
Any order sealing an entire civil case should contain findings justifying the sealing, and the seal should be lifted when the reason for sealing has ended, the policy says. The Conference also endorsed modifying the Judiciary’s Case Management/Electronic Case Files system to include a mechanism “that would remind judges to review cases under seal annually.”
The wording of the guidance from the Judicial Conference, actually seems broader and more detailed than what the Sunshine In Litigation Act of 2011 proposes. Perhaps the Judiciary can require procedures that the legislature can only suggest to another branch of government. It may be beneficial to have both the judicial guidance and the possible requirements of legislation, to help change practices that have severely impaired the transparency of part of our judicail system.