Public’s right to know under attack

By DAVID MARBURGER

The Ohio Supreme Court is deciding whether to approve a special commission’s proposed rules to govern public access to court records. The 19-member commission, comprised principally of judges of domestic relations, juvenile, probate, and municipal courts with one court of appeals judge and one general division common pleas judge, approved the proposed rules with one dissenting vote.

The dissenter was Theresa Dellick, judge of the Mahoning County juvenile court, who argued that the proposed rules exceeded the authority of the commission and the Ohio Supreme Court because they would control and limit the public’s substantive legal rights. The Rules of Superintendence are supposed to regulate only courts’ internal procedures, not create or limit anyone’s legal rights. Chief Justice Thomas Moyer approved or appointed the members of the commission, called the Commission on the Rules of Superintendence.

As approved by the commission, the proposed rules would eliminate some of the objections voiced by news organizations and others, who complained that the proposals would have barred public access to information in court records that has been publicly available since the beginning of America’s court system.

Earlier drafts had, for example, proposed barring the public from seeing any part of a court record that named anyone under age 18, even in criminal prosecutions where the minor was the prosecution’s accusing witness and in civil cases where the minor was a plaintiff or defendant. The final version of the proposed rules deleted that.

The final version also deleted draft provisions to bar public access to medical and psychological reports filed in litigation, and reports filed by court-appointed investigators and guardians representing minors, and complaints about court employees that didn’t result in discipline.

Thick legal barrier

But the proposals approved by the commission remain a mess. If a judge has sealed a court record — ordered that the public can’t see it — the proposed rules erect a thick legal barrier against overturning that order. They would bar that judge or an appellate court from later lifting the order except where there is “clear and convincing evidence” that the public’s right to see court records “is no longer outweighed” by the reason for initially sealing the record. Clear-and-convincing evidence is the most difficult burden to overcome in civil cases. It would place a heavy burden on anyone trying to unseal the record, one that has never existed before.

The commission added a bizarre provision when it approved the proposals. The final version would allow a court to adopt a policy limiting the number of court records that it will provide each month unless the person requesting the records “certifies in writing that the requestor does not intend to use or forward the records, or the information contained in them, for commercial purposes.”

The provision excludes news-gathering as a commercial purpose, but that hardly makes the proposed rule any less bizarre. It does not exclude a variety of commercial purposes whose lifeblood is access to court records and the circulation of them. Every law firm obtains hundreds of court records each month exclusively for commercial purposes, and circulates them exclusively for commercial purposes. Publishers of judicial decisions do the same thing, as do hundreds of publishers who advise lawyers, clients, and the public about court rulings and the progress of litigation. Credit reporting agencies do it, too.

The proposal also says that anyone who obtains a large volume of court records and intends to circulate them must “keep the information current and delete inaccurate, sealed, or expunged information.” Given that court records overflow with inaccurate and unverifiable information, the proposal requires the impossible.

Requiring someone who obtains court records that had been sealed to keep them sealed before circulating them likewise demands the impossible. When the court gives out a record, the person receiving it usually has no way of knowing that the record was supposed to be secret.

The proposed rules appear to be the product of quite unsophisticated thinking, and in a variety of ways, they prescribe and limit substantive rights. The Ohio Supreme Court should reject most of the provisions, whittling the proposals down to pure housekeeping.

X David Marburger, a partner in the Cleveland office of Baker Hostetler, has extensive experience in First Amendment cases, media law and freedom of information cases. He has served as counsel to small and large Ohio newspapers and to national television and radio networks and newspaper, book and magazine publishers.