Civil Liberties and Transparency Clinic makes the case for openness

The School of Law’s Civil Liberties and Transparency Clinic is ending its first year with real-world punch.

Following extensive original research by three student attorneys, the clinic is proposing a new set of rules to be used in federal court for the Northern District of New York – rules that they hope will give the public more access to the court’s cases.

The clinic joined with the New York Civil Liberties Union and Knight First Amendment Institute at Columbia University in making the proposal, submitted to U.S. District Court on May 19. It addresses the court’s Local Rule 83.13, which sets the conditions under which cases and related filings and orders are sealed away from public view.

The problem, says Clinical Assistant Professor Jonathan Manes, is that the existing rule essentially makes it too easy for the court to seal these records – contrary to established case law from the federal Second Circuit, which includes the Northern District, based in Albany.

It was only in 1980, Manes says, that the U.S. Supreme Court acknowledged for the first time that the public has a constitutional right to access court proceedings, grounded in the First Amendment. Since then, he says, “the lower courts have found that that constitutional right applies to civil cases and documents, expanding the scope of the public’s right beyond criminal cases.”

The Second Circuit, he says, “has very well-developed precedents on the right of access.

Those cases are the law, but the parties in a particular case, or a judge who has a busy docket, might not have them at the top of mind. These decisions don’t implement themselves.”

The project began when second-year student Laura Gardiner, researching one case from the Northern District, discovered that important material from the case had been sealed. She investigated and found a discrepancy between the appellate court standards for transparency and the Northern District’s less stringent requirements for sealing case materials.

“It seemed as though the way this case was handled did not line up with what the case law requires,” Gardiner says. Among the problems: Attorneys’ motions to seal the records, and the judge’s order to seal them, are themselves sealed from public view.  Among the records sealed was the court’s written decision in the case.

That’s a problem, Gardiner says. “The orders that the court enters and the decisions that it makes carry the weight of precedent,” she says. “To understand your rights and to understand the arguments, you need to know what’s happening in the case.”

So she and two fellow second-year students, Andrew Plewinski and Amanda Scott, started investigating the issue. They looked carefully at 29 Northern District cases, trying to understand how the sealing rules were applied. Beyond that, they examined the sealing practices of all 94 federal district courts – and discovered that only the Northern District requires the sealing orders themselves to be sealed as a matter of course. And the court’s rules fail to remind all parties involved that the burden is on them to justify sealing the records – that transparency should always be preferred.

The students’ solution, hashed out in multiple conversations with NYCLU and Knight Institute attorneys, was to propose a model rule that the court could adopt to better serve the public interest. The court entertains proposals about its operations each year, Manes says, and the judges meet in the fall to decide whether to make changes. If the students’ proposed rule is adopted, it would take effect Jan. 1. They’re hoping that other federal courts consider adopting the model rule as well.

“It’s been a very useful exercise for the student attorneys,” Manes says. “This work has exposed them to an important area of substantive law, litigation procedure, and intensive legal writing. It’s also been a great experience for the students to get to work with really terrific lawyers at our partner organizations.”