At the urging of the U.S. Justice Department, the federal judiciary is considering whether to close Internet access to plea agreements and related docket notations in criminal cases. The judiciary is requesting public comment on the proposed restriction to be filed by Oct. 26. This would be a major step backwards for public access to government information. I urge you to submit a comment in opposition.

Reporter Marcia Coyle lays out the issues in her Sept. 17 report in the National Law Journal. Presently, these records are available in digital form through the judiciary’s PACER system. They have long been available as paper files through the courts and will remain so even if they are taken offline.

DOJ’s proposal reflects a dangerous trend among government officials to restrict public access to government information. Some officials seem to take the position that public access is fine as long as it requires the public to dig through musty files in government back rooms. But make public access real, through the Internet, and these officials get antsy. Just this weekend, former White House legal counsel John Dean observed in an interview with the Boston Globe that the reason for government secrecy is often that “you don’t want people to know what you’re doing.” Of course, we have a right to know, and the Internet enhances that right.

So, if you, like me, oppose further restrictions on public access to government information, make your voice heard by filing a comment.

  • It is quite telling that neither of the two cases cited on the judiciary website as support for denying Internet access to plea agreements even come clost to supporting that proposition.

    Nixon v. Warner Communications, Inc., 435 U.S. 589 (1978) did not hold that the type of technology used to disclose information was relevant in any way. Rather, the Supreme Court held that the district court was not required to produce copies of Presidential audio tapes because of (a) the “unique element” involved in that case, viz. the Presidential Recordings Act which specified the procedure for making the tapes public and (b) the fact that the content of the tapes was publicly accessible via transcripts of the procedings.

    In United States Department of Justice v. Reporters Committee for Freedom of the Press, 489 U.S. 749 (1989), the Court held that computerized data compilations (rap sheets) created by the FBI were exempt from disclosure under the law enforcement exemption of FOIA, but specifically noted that the underlying court records were freely available to the public.

    The issue here is really the opposite of the issue presented in Reporters Committee for Freedom of the Press, supra – whether members of the public should be denied convenient access to the underlying court records because there is a risk (and apparently precedent) that they will use those records to create, and provide access to, their own compilations of the data. (“Certain private parties or organizations have compiled lists setting forth names, locations, and descriptions of alleged cooperating witnesses and have posted them on the Internet”)

    While Reporters Committee for Freedom of the Press, supra, held that FOIA disclosure of rap sheets was not required because it did not shed light on the FBI’s performance of its duties, convenient public access to plea agreements, which the government seeks to prevent, are integral to the public’s assessment of the prosecutor’s and court’s performance of their duties.