Plea agreements filed under seal

Q: We increasingly are seeing plea agreements in U.S. District Court criminal cases filed under seal, without publicly docketing Notice of Intent to File a Motion to Seal or a public hearing so that we can object. Our local U.S. Attorney’s office said that last year the Committee on Court Administration and Case Management of the Judicial Conference of the United States sent a memo to federal judges that urge them to avoid identifying people who have cooperated and received a plea agreement. Hence the seals. Given this was done at the national level, is this an issue that is cropping up all over?


 
A: I have not been hearing complaints from anyone around the country, but the issue is one that does pop up from time to time.
 
It actually first arose after the 2004 creation of a website called “Whosarat.com,” a searchable online database where users could post and gather information regarding law enforcement and informants, most of which was taken from documents available on the federal PACER site. In 2006, the Justice Department asked federal courts, through the Judicial Conference of the United States, to limit public access to plea agreements via PACER because Internet-based access to plea agreements was becoming a breeding ground for witness tampering. The DOJ requested a uniform policy removing not just the details of plea agreements but references to the agreements from the online PACER database.
 
The Judicial Conference actually did NOT act at that point. It convened hearings on the issue but refrained from instituting a mandatory nationwide policy after comments overwhelmingly favored continued access, instead of asking federal courts in 2008 to consider a range of solutions.   
 
A 2010 survey of 94 federal judicial districts by the Reporters Committee for Freedom of the Press revealed that a majority took a case-by-case approach to granting access to plea agreements. In those situations, plea agreements remained presumptively open, even where they reveal cooperation by the defendant. Only when revealing cooperation could lead to a substantial probability of harm, defense attorneys could move to seal the file. About a dozen courts at that time decided that all plea agreement would remain public. But even back in 2010, at least six federal district courts took the Justice Department’s position and removed the information from PACER: the Northern District of California, the Eastern District of North Carolina, the Western District of Texas, the Southern District of Florida, the Eastern District of Pennsylvania and the Southern District of Ohio. However, even in these districts, the public and media could go to the courthouse to get the information from the court clerk; it is only Internet-based access that was foreclosed.
 
I do not know of anyone who has performed this type of survey since 2010. And, from what I gather, what you’re facing is the next step beyond just shutting down Internet access: preventing even in person, courthouse-based viewing (let alone copying) of the plea agreements. I’m not sure how unique that is.
 
Obviously, a blanket ban on Internet-access through PACER is burdensome, especially in a judicial district like the Northern District of California. But a full ban – not just Internet but any access – seems extremely broad and unconstitutional. There is plenty of precedent, from the Supreme Court on down to federal appellate courts around the country that say access to court proceedings and records can only occur after on-the-record findings of a compelling government interest (in this case, clear indication of a threat to law enforcement investigation or prosecution or clear indicationof  a threat to the defendants’ or others’ safety or security) and issuance of an order, which is as narrowly tailored as possible to protect that interest. In other words, the case-by-case approach is what should be occurring.