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FOI and the Courts
— Does the FOIA cover federal courts?
— Is every trial and court proceeding open?
— Can judges make court records secret?
— Why aren’t recording devices allowed in federal
courts?
— What about state and local courts?
— Can a reporter or the public challenge a judge's
secrecy order?
Does the FOIA cover federal courts?
No. Federal courts are not covered by the FOIA. However, under the First Amendment
the public and the news media have a right to attend trials and hearings in
most cases.
Court files also are presumed to be open to the public, but not necessarily
under the First Amendment. The right to inspect those files may be rooted in
case law or court procedural rules. Federal courts themselves are not unanimous
in where the right emanates from, although federal appellate courts have ruled
in favor of the public’s right to have access to court files.
The FOIA also does not cover the Judicial Conference of the United States or
the Administrative Office of United States Courts, which govern and provide
administrative services to the federal court system. Meetings and records of
these organizations are made public to the extent the judiciary sees fit to
provide access.
[Top]
Is every trial and court proceeding open?
No. Judges presiding over cases are often asked by the parties to close proceedings.
However, because most proceedings are presumed to be public, a judge must conclude
that closure is necessary to protect a “compelling government interest.”
In other words, the judge must decide that openness will harm the parties and
the only way to prevent the harm is to make the information secret.
Judges may order participants in a case – lawyers, law enforcement personnel,
witnesses, litigants, etc. – not to discuss the case with non-participants
outside of the courtroom. These orders, referred to as “gag orders,”
may seriously restrict public access to information about the case. How far
judges can go in barring public comment is an open question under federal case
law, but judges have the power to impose limits on participants, but not on
the media.
There is no public right of access to proceedings that traditionally have been
secret, such as grand jury sessions.
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Can judges make court records secret?
Judges also may be asked to seal court records in a given case. Again, the
judge must determine that there is good cause for secrecy and must cite a compelling
government interest before making records secret.
In 2001, the Judicial Conference ruled that the federal courts implement an
electronic filing system in which most court documents will be filed and stored
on computers.
Under this system, the public will have access over the Internet to federal
court files to the same extent the files are available for review at the court
clerk’s office. In other words, if you can walk into the clerk’s
office and see a document, you will be able to see the same document through
the Internet.
Initially, this rule will apply to civil, bankruptcy, tax and appeals cases,
but not to criminal cases in the U.S. district courts.
(NOTE: Users must register for Web service.)
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Why aren’t recording devices
allowed in federal courts?
Although reporters can attend federal court proceedings and cover them, the
visual media are barred from bringing their cameras and tape recorders into
courtrooms. The media, Congress and some federal judges have advocated permitting
electronic coverage, which is allowed on a limited basis in most states’
courts, but the federal courts are not yet open to the electronic media.
At this writing, Congress is considering a bill (S-986) to grant federal judges
the discretion to open their courtrooms to cameras and recording devices. The
bill also would instruct the Judicial Conference to draw up guidelines for the
use of recording devices in federal courts.
[Top]
What about state and local courts?
Only a few state FOI laws apply to the courts. However, state courts, like
their federal counterparts, are required by the First Amendment to provide public
access to most proceedings and, under similar principles, to most court records.
Grand jury sessions and other proceedings traditionally held behind closed doors,
such as juvenile and adoption cases, are not public under the First Amendment.
However, some states have statutes providing limited access.
[Top]
Can a reporter or the public challenge
a judge’s secrecy order?
Yes. It is important for the news media and the judge to understand that the
public, including reporters, may challenge secrecy orders, even though they
are not parties to the case over which the judge is presiding. (In legal terms,
the public and media have “standing” as legitimate courtroom participants.)
[Top]
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FOI Committee
This committee is the watchdog of press freedoms across the nation. It relies upon a network of volunteers in each state organized under Project Sunshine. These SPJ members are on the front lines for assaults to the First Amendment and when lawmakers attempt to restrict the public's access to documents and the government's business. The committee often is called upon to intervene in instances where the media is restricted.
Freedom of Information Committee Chair
David Cuillier
Assistant Professor
Department of Journalism
University of Arizona
Marshall Building, Room 323
Tucson, AZ 85721-0158
Work: 520/626-9694
Fax: 520/621-7557
E-mail
Bio (click to expand)
David Cuillier, a former newspaper reporter and editor, is an assistant professor in the Department of Journalism at the University of Arizona. He researches public attitudes toward freedom of information and is one of the SPJ newsroom trainers for acquiring government documents.
Joe Adams, vice chair
Editorial writer
The Florida Times-Union
One Riverside Avenue
Jacksonville, FL 32202
Work: 904-359-4534
Fax: 904-359-4390
E-mail
Bio (click to expand)
Joe Adams is an editorial writer at The Florida Times-Union and author of The Florida Public Records Handbook published by the First Amendment Foundation in Tallahassee.
Eight universities in Florida have used the book as a textbook, the only one of its kind in the nation, and more than 1,000 journalists have attended his workshops on how to use public records for success. He is the recipient of the national 2007 Eugene S. Pulliam First Amendment Award sponsored by the Sigma Delta Chi Foundation and has earned two national Sunshine Awards from the Society of Professional Journalists. In December 2000, Presstime magazine profiled him as one of the top 20 under 40 newspaper industry professionals to watch in the future.
As an editorial writer, Adams has received awards from the Florida Press Club, Florida Society of Newspaper Editors and the Society of Professional Journalists. His year of public records research of the Jacksonville City Council uncovered widespread open meetings abuses. The resulting work by Adams and the newsroom inspired a grand jury probe and prompted the council in 2007 to create the state's first known local ordinance to ensure better compliance with Florida's Sunshine Law. He is originator of the www.iDigAnswers.com Web site about Florida FOI news and public records use.
Adams is founder and past coordinator of Times-Union University, the Jacksonville newspaper's newsroom training program, and is also former director of the National Newspaper Diversity Job Bank on the Internet. He also taught information gathering for two years as an adjunct professor at the University of North Florida.
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