Comments Received
by the Administrative Office of the United States Courts in response to Request for Comment on Privacy and Public Access to Electronic Case Files
Each comment has a
number, date, and where provided, a geographical identifier. In
cases
where the comment was sent by an individual with no business or professional
affiliation noted,
the name of the commentor is not included. In cases where the comment was
sent by an
individual in a professional capacity or on behalf of a group or organization,
the name of the
commentor and/or the name of the group is included.
The Administrative Office of the United States Courts reserves the right
not to post a comment,
or any part thereof, which contains irrelevant or scurrilous material.
Footnotes and endnotes
attached to comments have been omitted.
No. 1
5/22/07
Jack B. Siegel
Charity Governance Consulting LLC
Chicago
Attachment (pdf)
No. 2
8/30/07
Chief Judge Kimba Wood
NY-S
The entry of an order to have the parties submit a redacted plea agreement or to
restrict public internet access to the plea agreement would have to be docketed
and would also serve as a red flag of cooperation and have the same concerns as
if the cooperation was detailed in the plea agreement. A standard order that a
judge issued in each case might solve the red flag problem, but I am not sure
this would be compliant with Fed. R. Crim. P. 49.1. Judge Wood also expressed
concern that cooperation has to be detailed as part of the sentencing and in the
statement of reasons. The statement of reasons problem has been solved by the
creation of the two documents for sentencing purposes, with the statement of
reasons not being filed.
No. 3
8/31/07
Judiciary Employee
I am an assistant federal defender. I read your Memorandum dated August 30, 2007
about issues surrounding the whosarat website and the suggestions made so far to
address the problem. I write to let you know about what I vew to be a growing
problem along these same lines.
I have had a number of clients who are incarcerated at variou BOP facilities
advise me that they are under tremendous pressure from other inmates to produce
their docket sheets for indications of cooperation. Therefore, even if plea
agreements or parts thereof are sealed, if the docket sheet reflects
cooperation, it could have the same effect.
No. 4
9/10/07
Private Citizen
Hi,
I would prefer to be allowed public access to that. Public access has been
invaluable to me as a landlord. In Milwaukee, if more landlords screened
properly we could be a factor in cleaning up some troubled parts of otherwise
good neighborhoods. I would also feel a bit safer to take a quick look at who's
going to be teaching, coaching, etc. my daughter. It's obvious in these times
that parents need additional tools to protect their children and the government
shouldn't get in the way of that. You can always put an asterisk by a plea
agreement noting that it wasn't necessarily a case of proven guilty.
Thanks,
No. 5
9/10/07
Private Citizen
Records should remain public
No. 6
9/11/07
Rob Ansley (Clerk of USDC, North Dakota)
Judge Tunheim: The District of North Dakota will be implementing a policy
change on October 1 that we believe will alleviate concerns with dissemination
of names of cooperating individuals by "Whosarat.com" and other websites. In
cooperation with the USA and FPD in the District, we have developed a procedure
to file all plea agreements as public (unsealed) documents, sanitized by the
drafter (USA) of any references to cooperation. All pleas are accompanied by a
sealed document, "plea supplement". The sealed plea supplement contains either a
cooperation agreement or a statement that no agreement exists. To the internet
public every plea in North Dakota will appear identical: plea agreement void of
cooperation language and sealed plea supplement.
Attached is the press release announcing this change to our ECF
administrative policy effective October 1. I would be pleased to discuss any
details of the change to our ECF procedures with your staff.
Thank you.
Rob Ansley
Clerk of Court
USDC ND
Attachment (pdf)
No. 7
9/11/07
Sir,
I am writing as a journalist who uses the PACER system on a regular basis. I
would suggest the system is an invaluable way for the public to keep easy track
of public documents. These documents are all available but not everyone can
dedicate time to come to a courthouse and look them up.
The proposals specifically speaks to plea agreements. I have not seen any
suspect information in a plea during my six months on the beat. I recall one
plea being available only in paper form for that reason. The AUSA went to the
judge and made that argument. I would suggest pleas can be restrict in a
case-by-case basis rather than as a blanket restriction.
If you have further questions, please feel free to contact me.
Sincerely,
John Diedrich
Federal reporter
No. 8
9/11/07
Judge Donald Walter
It is a reasonable request from DoJ. I support it.
No. 9
9/11/07
Judge John L. Kane
It should be born in mind that courts are public institutions and depend upon
public confidence for their efficacy. In the last ten years, more documents have
been classified as secret, sealed by courts and otherwise made unavailable to
the public than in the entire period from 1785 to 1997. Of course this is a
response to the glut of data now made available by technology, but the efforts
to obstruct public access to information is inimical to the very function of
courts in a democratic society. This proposal is yet another abuse and should be
rejected.
I hasten to point out that the proposal of the Justice Department would not
accomplish its stated objective in any case. At most, it might require a little
more time at the keyboard by those intent upon disclosing the names of
informants. (I refrain from further comment about the dangers of an informant
based law enforcement system because history is replete with examples.) I will,
however, observe that the same information about these informants is available
from those convicted, their attorneys, witnesses and unindicted conspirators. I
have read literally thousands of pages of wire tap affidavits and transcripts of
recordings and can assure you that the information sought to be sealed is known
within literally minutes of the first arrest. Sealing in this instance is a
formality the presence of which is detrimental to the principles of public
courts. I thus submit the price paid is too dear for the imagined advantage to
be gained
No. 10
9/11/07
Richard F. Cebull
U.S. District Judge
I am in favor of a proposal to restrict public internet access to plea
agreements to prevent disclosure of federal court case file documents showing
that the defendant has agreed to cooperate with the prosecution. In my court in
Billings, Mt., all plea agreements are sealed which contain a "cooperation
clause" wherein the defendant represents he or she can provide "substantial
assistance" thereby qualifying he/she for a 5K1.1 or a Rule 35 motion for
reduction in sentence. I would assume and expect that sealing the plea agreement
would prevent public internet access to such a document. Thanks for the
opportunity to comment.
No. 11
9/11/07
I support restricting internet access to plea agreements. Many of them have
cooperation provisions, and the compilation and dissemination of this
information may interefere with law enforcement efforts and facilitate or
encourage retaliation.
Judge Dan Polster (OH-N)
No. 12
9/11/07
The general public probably does not need computer access to such
documents, but it is hard to see how allowing in-person access offers any
measure of protection against people with a peculiarly high motivation to see
such documents. Such protection is afforded only by careful drafting of the plea
agreement to avoid any indications of whether a person actually is cooperating
or not. Furthermore, with or without access to accurate information, it is
perfectly possible for malevolent persons to publish information on the internet
that is not true, whether the subject matter is cooperation with the government
or any other subject.
In the case of lawyers, they obviously need full and convenient
access to such documents in representing their clients. It is unlikely that any
lawyer would publish information of that kind on the internet, but if the mere
possibility is viewed as a problem, it would be a simple matter to prohibit
lawyers from doing so or face discipline for having done so.
J. Steven Bush
Attorney at Law
No. 13
9/11/07
Private Citizen
There has been way to much secret activity in the past few years. The citizens
and taxpayers of this country deserve access to court filings.
All systems work best when the light of day illuminates the process.
No.14
9/11/07
Mary Hasbrouck (Paralegal) Alaska
I am a paralegal with 20+ years of experience, most of which has been based in
Alaska. Alaska is a big state far, far away from the rest of the country and
its courts.
The ability to access public records electronically has been an invaluable
asset to my work and our firms' clients. The reduction of cost and time is
significant. A simple request for documents on file with an out of state court
use to take weeks and several LD telephone calls. Nowadays I can get exactly
what I am looking for in a matter of minutes - longer if I make a mistake.
To limit some documents from public internet access but not from local public
access is arbitrary and unfair. This is not equal access to the legal system.
Thank you, Mary Hasbrouck
Paralegal
No. 15
9/11/07
Private Citizen
I oppose the suggestion to restrict access to plea agreements online.
I blog under the name "emptywheel" at the Next Hurrah and Firedoglake. I
started covering federal trials closely during the CIA Leak investigation, and
relied closely on PACER to do that coverage. With Firedoglake, I was part of a
team that provided pioneering liveblogging of the Scooter Libby trial. In all
of this work, I effectively served as a citizen journalist, scrutinizing the
work of our government to make it more accessible to others.
Making plea agreements available online is crucial to this kind of work. Often,
plea agreements are the best description of complex cases, which increasingly
seem to include government officials. In particular, I have used the Griles,
Cunningham, and Abramoff plea documents to report on such government
corruption. If the plea deals are no longer accessible online, it would create
exorbitant costs for average citizens to study the complex conspiracies of
those in our government.
No. 16
9/11/07
Private Citizen
They need to remain accessible. We have enough secrecy already in our
government and that is how we got most of the problems that we have. Everything
in a democracy should remain out in the open so that people are informed to be
able to vote intelligently. Please, no more secrecy.
No. 17
9/11/07
Private Citizen
In the interest of accountability in government, I urge you to continue the
policy of openness regarding plea agreements. My own informed decision making
has been significantly improved through this access.
Manhattan Beach, CA
No. 18
Private Citizen
9/11/07
Plea Deals in all forms should be restricted from public access
No. 19
9/12/07
I believe very strongly that it would be a mistake to restrict Internet access
to public files in criminal cases. If a document is under seal, then of course
access should not be allowed. However, our government has gone to extreme
lengths to keep its actions secret. The integrity of our system of justice is
being severely challenged on many fronts. There is evidence that the Justice
Department has been using its prosecutorial powers for partisan purposes. It is
essential that the public have full access to all public files. PLEASE do not
do this!
R. Alan Fryer
(Attorney) Boston
No. 20
9/12/07
Private Citizen
I would urge the judiciary to be as transparent as possible as regards
public access to information regarding the legal process.
There is no question that public confidence in the administration of
many departments of government, particularly the Department of Justice
and the administration of Justice generally declined as we witness
events including politically motivated prosecutions such as the reversal
[from the bench at the conclusion of oral argument] by an appellate
court of the conviction of a midwestern women convicted of improperly
selecting a travel agent for state use. Many [including the undersigned]
are increasingly skeptical of the proffered reasons for government
secrecy as news reports of abuses of civil rights continue to surface.
The cornerstone of the justice system is the jury system. Do you really
want to fan the flames of public skepticism of the judicial system
further by increasing secrecy?
You may find yourselves with jurors unwilling to believe ANYTHING
proffered by the witnesses for the government! The OJ Simpson case
should indicate what happens when jurors have no confidence in the
integrity of the judicial system.
The alleged behavior of the US Attorney of New Jersey, for example,
would require me to place a substantially higher burden on the
government than might have in the past were I asked to serve on a jury.
The long term damage to the fabric of our nation resulting from reduced
confidence in the administration of justice due to increased secrecy
cannot be overestimated.
No. 21
9/12/07
Private Citizen
I strongly believe that the citizens of our democracy should be able to access
this information. Since access to the internet is readily available to most
U.S. citizens, then public access via the internet should not be resticted. It
should be maintained or expanded. Our democracy was designed for an informed
citizenry. Any means to provide information to voters is desired
No. 22
9/12/07
Private Citizen
Sunshine is ALWAYS the best policy. There should
be very very few cases where public access should be curtailed. Even in the case
of "national security", there should be a definite and reasonable period of time
for this information to stay under wraps.
Covering for a current or past Executive/Legislative/Judicial branch of the
government's missteps/wrong doings is in no way a reason the public, "we the
people", should be denied this information.
This includes plea agreements.
Mountlake Terrace, WA
No. 23
9/12/07
Federal Judiciary Employee
I am writing to comment on the issues
concerning public access to certain criminal documents.
I think that certain criminal documents should be withheld from electronic
access. I agree that there should not be internet access to plea agreements and
similar documents in criminal cases that often contain
information identifying defendants who are cooperating with law enforcement
investigations. There are serious safety concerns for those cooperating
individuals as well as their families. Such people are increasingly becoming
victims of retaliation by criminals practicing the "no snitching" code of
silence. Likewise, documents containing personal information such as social
security numbers, should also be withheld from internet access.
Plea agreements and similar sensitive documents should be filed under sealed
like presentence investigation reports. If someone needs that information, they
should have to go through extra lengths to receive permission from the court and
show cause why the information should be released to them.
Thank you for seeking my input and considering my comments.
No. 24
9/12/07
The public has a strong interest in retaining open Internet access to plea
agreements. The recent plea agreements in public corruption cases such as the
Abramoff, Libby and Kontogiannis cases have revealed government involvement, by
elected officials and other public officials, in activities which should be
scrutinized. Such scrutiny allows informed citizens to demand ethical behavior
and to influence public policy choices in our justice system. All attorneys in
the field of criminal justice understand the importance of plea agreements to
the efficient functioning of our overloaded Courts. Because plea agreements are
so common it is important that the public understand the policies, generally and
specifically, underlying those agreements. Continuing to allow Internet access
to plea agreements is important in maintaining public oversight of the justice
system which exists of, by and for "We the People."
Michael E. Stowell
Attorney at Law
No. 25
9/12/07
Private Citizen
All,
The new regulations would fly in the face of the public interest with regard to
public access and transparency about the resolution of criminal cases.
The proposed solution of restricting access is also not the least restrictive
way of resolving the problem of possible disclosure of information identifying
cooperating defendants. This could be accomplished through redaction or delay of
publication of plea agreements. Similarly, parts of agreements that include
disclosure of this information could be filed under seal as an amendment.
Our court process are supposed to be open to the fullest extent possible while
still allowing for fair and just adjudication of cases. Shutting down or sharply
restriciting public access via the internet is not the correct solution.
Further, there is a high-level of public interest in the results of criminal
cases, especially those involving crimes in the public sphere and involving
public offiicals and public acts. Information contained in such plea bargains
often contain appropriate and important information about the culpability and
involvement of other people who have sought to improperly influence public acts.
The internet is an important tool and has contributed much to public access.
Such restrictions would in the end also not be effective as parties who are
truly connected and in jeopardy would still have access in person. The only
limitation would be on those pubic-spirited citizens who cannot afford or are
distant from the court building.
If the courts find they must restrict access because disclosure would hit hard
at future prosectutions, the only logical rule would be to limit access to all.
That, of course, would fundamentally change the way courts do business,
undermine the integrity of the court system.
Sincerely,
San Pedro, CA
No. 26
9/12/07
Private Citizen
As a regular reader of both of the blogs
firedoglake and the Next Hurrah, I very strongly support the continued placing
of court documents onto the web, where everybody from dirty "effing" hippy
bloggers to pinstripe-suited lawyers and everybody in between can get a look at
just what everybody is talking about in particular court cases.
Democracy means openness and sunshine and open access. I completely agree that
documents to be placed on the web should undergo careful review to see to it
that privacy concerns are seen to. If that means we pay more in tax money to see
to it that courts have enough personnel to perform the necessary review tasks,
so be it.
No. 27
9/12/07
Private Citizen
Please do not stop access to the documents in court filings, as I understand may
be under consideration.
Our courts only function well when they are public, open and transparent. It is
the authors of documents on file with you who must take responsibility for
protecting the identities of individuals mentioned, or protecting the privacy of
other information within. Those authors are generally attornys who already have
the interests of their clients at stake, and who have ethical responsibilities
enforced by their peers. It is not the responsibility of the Courts to
anticipate what might happen, but to protect the integrity of the judicial
process.
A judicial process without public access is a judiciary in name only; it
violates the very essence of democracy. The abuses of the secrecy of the FISA
court are now well-known, and serve as a precautionary tale to why courts should
not engage in hiding information, except in extremely rare (and case-specific)
conditions.
Please reserve those decisions to jurists who are familiar with the specifics of
a case, and can make such judgements in camera. Do not relegate those decisions
to staff members who are not necessarily versed in the subtle practices related
to law and/or privacy.
No. 28
9/13/07
Private Citizen
Dear Court Administration Privacy Staff –
Many of the country's citizens have watched, as I have, with growing concern as
this administration has eaten away at the availability of what has been, in the
past, public information.
This disturbing trend has hindered the press, the citizenry, and even members of
the bar who defend those accused of crimes from doing their jobs, and has cast
the Justice Department – which should be worried about protecting Americans – in
the role of protecting the government from concerned Americans.
Please take a principled stand on this issue and keep public records public –
even if they turn out to be somewhat embarrassing or inconvenient for someone in
power. You work for all of us, not just for the ones with the most important
friends.
I look forward to learning that your office has chosen to do the ethical thing,
even if it is not the easiest thing.
No. 29
9/13/07
Private Citizen
Dear Madam/Sir,
I have read that limiting electronic access to PACER information is being
considered by your committee and I am deeply troubled by this news. I urge you
to continue to make all court records publicly available via the Internet to all
citizens, except for those very rare cases where secrecy is imperative as
determined on a case by case basis by a judge or similarly appropriate review
panel.
The public's need to know far outweighs the needs of those made uncomfortable by
scrutiny. How else can the public be informed about what's going on. There are
occasions where keeping some information secret is warranted, but those
occasions are rare and should be easily handled on a case by case basis. Please
remember "government for the people"; that's us.
No. 30
9/13/07
Private Citizen
I am writing today to suggest that the current
system of openness and
transparency regarding federal plea agreements be retained. Access to
these agreements provides the American public with a window into a
contract that is being made with a defendant on behalf of the American
people. I am not a lawyer and have had very little experience with the
federal court system, but I feel strongly that access to information is
my right as a citizen, as long as my right to information does not
infringe on the rights of a defendant. As for the need to keep the
cooperation of some defendants secret, current methods of sanitizing
court documents are sufficient for those needs as they have worked for
hundreds of years. I believe that removing these plea agreements from
internet access limits the free flow of information while not actually
protecting the needs of defendants. I feel that our Democracy is illuminated through openness and transparency, that a well informed
citizenry makes the best choices for us all.
No. 31
9/12/07
Private Citizen
I am writing to you about the possibility that
access to court documents which have to do with with cases that effect the
welfare of our country and American citizens may be shut down.
During the Libby trial the links to the case files etc at the blog FireDoglake
deepened my understanding of the Judicial process and had me feeling that it
really mattered if a peasant like myself understood what was going on. I felt
part and parcel to the Judicial process and found myself questioning,
understanding and appreciating what our Constitution and laws are based on. The
direct access had me hungering for more information, more facts. I believe that
many of the commenters at Firedoglake are attorneys and they would help people
like me ( farmer, landlord, soccer mom) when I would have questions about the
documents and the court prodecures, it was truely enlightening. I have continued
to go to other blogs to access and read other documents in Federal cases that
effect American citizens lives, National Security and freedoms.
Also during the Libby trial I encouraged a group of Ohio University students
(including my 20 year old daughter who is a student at Univ of Colorado who was
home visiting) to join the Firedoglake blog community. They too became riveted
with the process, began asking more questions and began to deepen their
understanding of the Judicial process and what our founding fathers were after
when they birthed the idea of a balanced, fair and just system divided into
three "supposedly" co-equal branches. We read the documents and talked about
this a great deal as the trial was going on. Being able to access these
documents via the internet made the possibility of deepening that understanding
possible.
Most of us know that the confidence in our Judicial system and Congress are at
an all time low! I sincerely hope that the courts see the value in allowing
common folks continued and easy access to the Judicial system via the Internet.
You can only strenghten our Judicial system by continuing to allow us to deepen
our understanding via this newly transparent process.
No. 32
9/13/07
Robert Alberti
(Sanction, Inc.) Minneapolis
If they are public files, then they ought to be
public. Period.
Making it harder to access those files by restricting them is wrong.
No 33
9/13/07
Private Citizen
This is in reference to the Court Administration
and Case Management
Committee of the Judicial Conference of the United States' proposal
to restrict public Internet access to plea agreements in criminal
cases, which may contain information identifying defendants who are
cooperating with law enforcement investigations.
Level of privacy on-line should be the same as in court. Case law
should provide the answer. Internet should provide greater and
faster access to documents already public. Standards of privacy do
not change because of technology; technology must change to meet
standards of privacy.
No. 34
9/13/07
Private Citizen
To preserve and enhance their legitimacy, courts
must be open and transparent to the public to the maximum consistent with
privacy rights and good judicial practice. As times change, as we enter in and
engage more deeply with the electronic age, the definitions of open and
transparent also change and the courts must reflect these changes. Public
documents should be available to the public, not in a technical and increasingly
restrictive sense, but practically so and in the public commons of our age, the
internet. Making the public documents of the courts truly available to the
scrutiny of the public which they serve will increase the professionalism with
which such documents are written, filed, and processed. Currently, the
expectation is that few outside those directly involved will review the records
and form opinions on them because, due to their relative unavailability, few
can.
Will there be abuses? Yes, but good practice in anonymous reference to at risk
parties, for example, can mitigate these. Moreover, as long as documents are in
any way public those who would seek to use them abusively will do so. Efforts to
restrict access will not harm or impede them, but the public's right to know the
operations of its government through its courts will be greatly damaged. The
situation opposes an onerous and ineffective remedy against a few prudent
precautions, the public good, and the public trust. The answer to which of these
must take precedence is clear.
No. 35
9/13/07
Private Citizen
I believe that our courts should endeavor to
remain open and transparent, unless there is a compelling reason, in specific
cases, to keep information from the public. In such cases, judges are the best
arbiters of whether disclosure will be harmful. I urge you not to impose a
blanket rule, keeping plea agreements from the public. If a specific defendant
in a specific case will be at risk if the details of his agreement are
disclosed, the courts can protect him.
Plea agreements in cases involving governmental misconduct are part of the
"sunshine" brand of disinfectant that helps us keep our democracy healthy. The
name "Jack Abramoff" comes to mind. I urge you not to change the rules.
No. 36
9/13/07
Private Citizen
I respectfully submit the proposed changes are
contrary to the public interest in that they seek to diminish Governmental
transparency in the resolution of criminal cases.
The proposed solution of restricting access to documentation is not the least
restrictive way of resolving the problem of possible disclosure of information
identifying cooperating individuals. The issue could easily be resolved through
the redaction of any pertinent identifying information contained within the
documents. Similarly, the portions of those agreements which include disclosure
of this information could be filed under seal as an amendment.
Our judicial processes are intended to be open to the public to the fullest
extent possible, while allowing for just adjudication of the matter before the
Court. Halting or sharply restricting public access via the Internet is
inequitable, as it would deprive a vast majority of the concerned citizenry the
opportunity to access Court documentation. There is a high-level of public
interest in the results of criminal cases, especially those involving crimes in
the public sphere and involving public officials and/or public acts. The plea
bargain agreements arrived at in such cases often contain important information
relating to the culpability and involvement of other persons who have sought to
improperly influence governmental affairs or act in other ways that are contrary
to the public interest.
The Internet is an extremely effective medium which is only beginning to realize
it's full potential as a tool to allow public access to the workings of their
Government. The proposed restrictions would ultimately serve to deny that access
to those public-spirited citizens who are constrained, by either temporal or
fiduciary concerns, from traveling to the Courthouse and duplicating the
relevant documentation.
If the Courts find that they must restrict access because disclosure would
intolerably impede future prosecutions, it would seem that access must be
limited to all. That, then, would fundamentally change the way our Courts do the
People's business, and undermine the integrity of the public Court system. For
these reasons, I ask that the Court maintain the Electronic Case Management and
Public Access to Court Electronic Records Systems in their present forms. Thank
you for your kind consideration.
No. 37
9/13/07
Private Citizen
It is my opinion that public Internet access to
all non-sealed pleas agreements should continue. The judiciary has the authority
to seal plea agreements if necessary, and this is sufficient. Additionally, if
the Justice Department is concerned about witness intimidation or retaliation,
it may take steps to prosecute those offenses under federal law.
It has long been a hallmark of the United States government that the public is
permitted to access documents concerning the everyday operation of government,
with few exceptions. This is because the government serves the people, and
should not pretend that it is the other way around. Additionally, many states
now have provisions in their public access laws that provide that any
information which may be easily distributed in electronic form be available on
the Internet. For the US judiciary to change this procedure would be a
regression not only for its own policies, but for the country in general.
Finally, intimidation in any given case will not be discontinued by halting
Internet access to plea agreements. It is trivial for a
malicious party to pay a small stipend to an innocent party to acquire court
records on the malicious party's behalf. The entire reason for prohibiting
Internet access to plea agreements is then circumvented, and
the same goals of intimidation or retaliation are easily accomplished, whereas
legitimate goals[0] are foiled or made difficult.
[0] For example, a Ph.D. candidate in criminal justice might analyze certain
aspects of plea agreements to better understand how to prevent crime.
No. 38
9/13/07
Private Citizen
Your organization has been a liberalizing effect
on public access to this kind of information.
Transparency is so vital, and many of the harms we fear can be minimized. You
have done great work & addressed prior privacy concerns with care.
I suggest extending access to citizens for the continued growth &health of this
our fragile constitutional republic.
No. 39
9/13/07
Private Citizen
Since 2000, we have been treated to the most
secretive administration since the Nixon era. There have been more corruption
cases involving elected officials than at any time in history. Since the 80's
era of "me, me, me"
greed and corruption have grown while integrity and reputation and honor have
all declined.
Every nook and every cranny of every part of government has been politicized,
even while violating a good many laws to do so. The Hatch act, Government
Information Act amongst others have been throw aways. (Along with the
constitution's bill of rights!)
So now, when sunshine is and would indeed be a very powerful disinfectant, while
fresh air is sorely needed, why stuff all of it back into a closet to mold and
pollute and fester?
Don't do it!
No. 40
9/13/07
Private Citizen
Everyday, more and more information about how
our government seems to be hidden from the citizenry. The public needs to know
how how things are actually working in this country. The following are not my
words, but I couldn't agree more or said it as well. Thank you for taking
comments regarding Internet Access to certain aspects of criminal cases
involving cooperating defendants. While I welcome and wholeheartedly endorse the
same privacy protections for a cooperating defendant as I would for any witness,
it is my sincere hope that you will equally take into consideration the public's
right to know regarding the administration of Justice in our great Country. I am
not a lawyer, but I am an interested citizen who follows news of our Justice
system in action, and constantly marvels at how lucky we are to live in such a
free and transparent legal system. Much of what I have learned in the last two
years has come as a result of blogging, where the better sites, on both right
and left, take filings before the various Courts and analyze them for their
relation to both precedent and prevailing circumstances. This 'living civics'
approach has been invaluable in making me a better-informed citizen, as I am
sure it has for many others, as well.
Consider a redaction scheme, if you must, but by all means, please leave the
evidence of our fair and impartial system available to all via the Web in plain,
public view.
Again, thank you for opening your processes up to public comment: I feel
like a participant.
No. 41
9/13/07
Private Citizen
I appreciate the Administrative Office of the
U.S. Courts taking the time to approach the general public the issue of possibly
restricting internet access of plea agreements in criminal cases.
As a citizen layperson your internet access has offered me and many other
ordinary citizens the opportunity to better understand and appreciate the
judicial process. If there was a chance that internet access was restricted
people like me who are members of internet sites which have comprehensive,
thought-provoking, and intelligent discussions would be severely constrained.
I believe the safeguards regarding acquisition of court documents that are
already in place (such as restricting access of private personal information or
sensitive data) are essential tools that address the need to protect the rights
of defendants or any vulnerable data. These safeguards, of course, should be
adhered to regardless what mode court documents are obtained.
Allowing the general public access on the internet is an effective instrument
for the courts to permit healthy, educational, and transparent discussion of the
judicial process. Thank you so much for this internet "window" of opportunity
that has allowed everyday citizens like me to view the justice system in action.
Please don't close that "window", allow it to continue.
No. 42
9/13/07
Private Citizen
I am an attorney licensed to practice in various
federal courts in California. I do not practice criminal law.
The problem that is described had to have existed prior to internet access --
the same information would be available at the courthouse. Someone needs to
explain why prior procedures worked regarding this problem but allegedly will
not work with the internet. The internet clearly makes it easier, but I would
assume someone motivated by improper reasons to inquire concerning the situation
would still be more than motivated to check courthouse records.
Second, the problem can be addressed by a rule permitting sealed filings upon a
showing of good cause. Good cause should be narrowly defined, and require a
showing of the specific concerns that justify non-disclosure. It should also
have a time limitation for any order, requiring a renewed request or otherwise
the protection lapses and the records become public. Although this overall does
create a procedural burden to enact protection, court records should be subject
to a strong presumption of being public. The burden should be on the party
seeking non-disclosure to overcome that policy. The reverse should definitely
not be true -- to keep records secret because it might be beneficial.
No. 43
9/13/07
Private Citizen
Thanks for listening!
Relying on court information on the internet, I can't believe that you are
preparing to omit plea agreementsw and other pertinent "public" information from
public view on the internet! You have another thing coming if you think that
people that rely on this information to keep up with federal cases are going to
sit for this!
Now is the time for Congressional oversight! Use it, or lose it!
Everyone is accountable!
No. 44
9/13/07
Private Citizen
There is only one reason to reseal any portion of a public document system that
is open to the public. That reason is, that someone is trying to get away with
something. The court system does not grant acess to people. The people of this
country cede a certain amount of control to officials to do the business of the
people. "power obtains from the people." The public's business should be done in
public, and in this day and age that means leaving everything that belongs to
the public where the public can get at it. The people who put the open system
together understood this, understood that for a small fee, it is the public's
right to see that which is the theh "public's business." Including cases where
the reading of any docket begins with the words "The people of the the United
States VS.....whomever."
To remove this acess is just one more step in the direction of a police
state. All cases, plea agreements, dispositions, and transcripts of trials
should remain open. One can only surmize that someone who wishes to clcose them
has something to hide, and that, in itself, merits an investigation.
No. 45
9/15/07
Lois M. & Hiram (Larry) Adams
(Adams Family Trust & Foundation)
We are in support of open access to records
under certain conditions. The general public must be allowed to obtain
information for a purpose and not just for kicks. Like access to the Fair Credit
reporting Act there must be a place on the web where one must state a purpose
before proceeding.
Any confidential should be redacted unless the person can prove a need to know
then we feel that such a request must come in writing preferably under a
notarized signature or a court order and in some case under the Freedom of
Information Act.
In our case we as investigators are qualified to do business under the PACER
program.
Now as a retired corporate(including computers) airport,seaport security
consultant we must practice reasonable restraint and caution but still allowing
access without violation of constitutional rights
No. 46
9/23/07
Karen Moody,
(Chief, Probation & Pretrial Svcs, D. Maine)
Theoretically, the public has the same access
through ECF that it had previously with paper. However, as a practical matter,
very few individuals with nefarious intentions would walk into the courthouse,
through security, and request file materials. Now, anyone with a computer can
anonymously look through multiple defendants' files without any scrutiny
whatsoever.
The reality in many districts, including this one, is that plea agreements are
boilerplate. They give no details regarding a defendant's cooperation but for
the fact that he/she has an agreement with the government. The defendant may
never provide any information to the government at all under this agreement.
However, the fact that the agreement exists allows individuals such as the owner
of whosarat.com to imply and allege all kinds of things that are likely not
accurate. Without the internet access, it is highly unlikely that the defendant
who developed whosarat.com would have personally entered the courts and obtained
even the bare information that a plea agreement existed.
Docketing a plea agreement in ECF, but then sealing another document with the
details, as has been suggested in some districts, does nothing to address the
problem. The only solution is to file all plea agreements as sealed documents. I
understand the policy implications as regards public access, but the world has
changed and ECF has changed the courts. Our practices need to change with them.
Although no one has been injured in the pilot districts over the two year test
period, we hear anecdotally that many defendants have been intimidated and
threatened. Our local jails and the BOP prohibit defendants from having their
presentence reports and any other paperwork in their possession because they are
"shaken down" by other inmates who want to read their documents in order to
determine whether they are cooperating. In Maine, we have been told about many
things that inmates "assume" from what is and isn't in reports and they freely
spread these assumptions around. This is the essence of whosarat.com. I'm sure
the developer of whosarat.com is satisfied with the chaos he has created by
posting misinformation, and even more satisfied that he has the government (DOJ
and Judiciary) expending resources to counter him !!
No. 47
9/26/07
Federal Judiciary Employee
If plea agreements relating to cooperation are
sealed while other plea agreements are not sealed, it would be immediately
apparent to the public that a defendant whose plea agreement is sealed is
cooperating. Not all individuals who enter into cooperation plea agreements
actually cooperate. When groups of documents are routinely sealed, it becomes
extremely cumbersome to view a record.
No. 48
9/30/07
Private Citizen
I would like to register my support for public internet access to plea
agreements in criminal cases which may contain information identifying
defendants who are cooperating with law enforcement investigations.
I believe the public's right to know such information supercedes all other
concerns.
No. 49
9/25/07
Chief Judge Michael P. McCuskey (C.D. Il.)
Attachment (pdf)
No. 50
10/1/07
Alexander Bunin
Federal Public Defender
Attachment (pdf)
No. 51
10/2/07
Tim Record (Attorney)
I believe these documents should be restricted to the PACER subscription
system. At least until after the case is disposed of.
No. 52
10/3/07
Bryan Gates, Attorney
(CJA Panel Attorney in NC)
Plea agreements should continue to be accessible
to the public and over the internet. Creating exceptions to the general rule
that court proceedings are open undermines public confidence in the courts. If a
person has chosen to cooperate with prosecutors in exchange for sentencing
consideration, the public is entitled to know the details of that arrangement,
which is being carried out in its name. The benefits of a blanket rule sealing
all plea agreements will not provide any greater protection then the current
practice of sealing plea agreements upon a showing of cause. It is generally
pretty easy for criminal defendants to learn from the grapevine who is and is
not cooperating.
No. 53
10/9/07
Chief Judge Harvey Bartle, III (PA-E)
Attachment (pdf)
No. 54
10/9/07
Miriam L. Siefer (Federal Defender Office) Detroit
Attachment (pdf)
No. 55
10/9/07
Sunshine Investigations
Attachment (pdf)
No. 56
10/10/07
Fred Williams
Attorney,
Charlotte, NC
I was employed by the Federal government from 1966-2004 when I retired as Deputy
Criminal Chief and Senior Litigation Counsel in the local U.S. Attorney's
office. I was made responsible for privacy policy in the agency which
investigated Medicare and Medicaid fraud shortly after the original federal
Privacy Act was enacted and dealt with privacy issues throughout my career. I
teach privacy law and policy as a part of a required graduate course at the
local university. I am now of counsel at a medium sized law firm.
I drafted, reviewed, cleared, signed, and implemented an extremely large number
of plea agreements during my 16 years as an AUSA. A large number of these
agreements included language relevant to USSG 5K1.1 cooperation. A few cases in
my district involved serious witness protection concerns, in which witnesses
were relocated and given help avoiding their former criminal associates against
whom they had cooperated. We prosecuted major drug cases with murders during the
investigation, and other violent crime organizations, including several rounds
of prosecution of the Outlaws Motorcycle Club (we had to re-locate one witness
and his family several times during the trial because information leaked to the
defense).
I firmly believe that there is almost never a real need to keep a plea agreement
off the public record. A plea agreement is a fundamental public record,
necessary for the public's evaluation of what the government is doing. In
extremely rare circumstances, the Court should have authority to keep one under
seal to protect the life of the defendant. The plea agreement need never contain
sensitive information. The existence of a plea when an undercover investigation
is still being conducted need never be put on the record -- the plea need not be
filed until the case goes overt and Grand Jury testimony can ensure the
defendant is unlikely to back out.
The real need for secrecy to protect a cooperating witness is during the trial,
but that would be unconstitutional. Sentencing, where cooperation that did not
include trial testimony, is the other area where there can be a legitimate need
for temporary secrecy to protect the cooperator from retaliation, especially
when the sentence will entail active time in a prison where cooperators are
generally abused. When truly needed, however, the government can usually obtain
a sentence with appropriate credit for cooperation without detailing that
cooperation The judge will understand the need to be discrete. In normal but
high profile cases, I preferred to place on the public record a detailed
sentencing memorandum summarizing for the Court, the public, and especially for
victims the defendant's conduct and culpability, his/her cooperation, and the
government's full rationale for its sentencing position. Victims seemed to
appreciate the individualized explanation and the fact it was readily available.
Those rare circumstances where the defendant's cooperation needs to be explained
under seal to protect the defendant can be readily handled under current law and
practice.
As a suggestion for alternative policies, I would suggest that, generally
speaking, the criminal process needs to be open except on the most stringent of
narrowly defined reasons that serious efforts are made to ensure that each order
to seal is factually justified. Too often Courts seal based on prefunctory,
unsupported in-camera motions. Except for warrants which areautomatically
unsealed on execution, authority to seal or otherwise keep records off the
public record should be limited to Article III Judges, and all such orders
should be limited to 30-90 days. The Court should require an in camera hearing
in which the presumption should be strongly against sealing, admissible evidence
introduced under oath and on the record, and the Court should cross-examin the
witnesses in the same manner that a good defense lawyer would use. Renewal
should be de novo, and failure to renew should result in automatic unsealing.
All sealing orders should be revealed on the public record with information
similar to the privilege log required when a party refuses to produce privileged
information in discovery. It should be easy for the press and others interested
to find out that information is sealed, move for un-sealing, and appeal if that
motion is denied. Eventually, all records must be unsealed, including the
records of the proceedings seeking orders to seal.
We cannot afford to have a government which operates in secrecy. This year's
controversies over political intrusion into the criminal process is plenty of
reason to reject any further ability of the government to hide what it is doing.
Openness fosters responsibility. Many times during my carreer, I asked policy
makers "how are you going to explain this to the press?" If you can't explain
what you are doing and why you are doing it, you shouldn't be doing it. Almost
always they didn't do it after being asked that question.
I oppose any new rule to allow plea agreements and other essential records of
the government's conduct of its core responsibility, protecting the public from
crime and criminals, to be kept off the public record. Current law and practices
allow too much secrecy rather than too little.
No. 57
10/10/07
Tim McGlone (Staff Writer, The Virginian-Pilot)
Virginia
I strongly object to any new rule that would further restrict
access to federal court records. The identity of a cooperating defendant,
presumably already a public record through his or her own case, should not be
sealed or redacted in plea agreements. The identity would no doubt come out at
trial or pre-trial hearing anyway. Cooperating witness names are already
redacted. Any further attempt to conceal details of plea agreements from the
public will only add to the public's mistrust of the workings of the federal
court system and would also erode the rights of the defendant, who may want the
public to know that a cooperating co-defendant has something to gain by
cooperating.
In addition, on a related matter, I would like to once again voice my objection
to information that currently is redacted in electronic filings. Specifically, I
am referring to defendant identifying information, such as addresses and dates
of birth. As a member of the media, it is my duty to report on criminal cases in
the federal system. That becomes difficult when I cannot fully identify someone
accused of a crime. "John Jones was charged with rape and robbery yesterday."
With several hundred John Jones' in the local phone directory, it is impossible
for the public to know which John Jones we are reporting about. My suggestion is
to change the rule to allow for the release of month and year of birth and
street and city address. That way, we can narrow down the identity but the
specific date of birth and house number remain concealed.
No. 58
10/12/07
Elaine Terenzi (Chief Probation Officer, M.D. Florida) Tampa
In
way of clarification, I am assuming that the proposal is that all plea
agreements would then not be in PACER. If only those which contained "sensitive
information" were excluded, the exclusion itself would be telling. This is
similar, but less severe from a public accessibility standpoint, to that which
was done with the Statement of Reasons for very similar reasons. Offenders in
custody were being forced to produce copies of the Statement of Reasons (SOR)
which were attached as part of the Judgement and Commitment Order, to prove that
they were not "cooperating" with the government. The BOP (DOJ) requested that
this information not be made readily available. The SOR is no longer maintained
by the Clerk of Court at all, but rather is maintained by the Probation Office
in a separate, non public, record.
Not putting the plea agreement in the electronic record would reduce, but not
eliminate, the public scrutiny it gets. I am sure websites like "Smoking Gun"
and "Whose a Rat" would still seek out the paper record in cases of high
notoriety, but it would make it more difficult.
No. 59
10/24/07
David Beneman
(FPD, D. Maine but submitting his personal views)
Attachment (pdf)
No. 60
10/24/07
Mary Alice Baish (Am. Assoc. of Law Libraries) Washington, DC
Attachment (pdf)
No. 61
10/25/07
American Bar Association (Criminal Justice Section)
Attachment (pdf)
No. 62
9/12/07
Federal Bar Council (2nd Circuit)
Attachment (pdf)
No. 63
10/25/07
Media Law Resource Center, NY
Attachment (pdf)
No. 64
10/26/07
Newspapers Assoc. of America and specific newspaper publishers
Attachment (pdf)
No. 65
10/26/07
Department of Justice, Washington DC
Attachment (pdf)
No. 66
10/26/07
Reporters Committee for Freedom of the Press
The American Society of Newspaper Editors
Society of Prof. Journalists
Attachment (pdf)
No. 67
10/26/07
National Assoc. Criminal Defense Lawyers
Attachment (pdf)
No. 68
10/29/07
Anita Chavez
Chief, U.S. Probation & Pretrial Office, D. New Mexico
Attachment (pdf)
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