by Max Brantley
In the interest of full disclosure:
The 8th U.S. Circuit Court of Appeals today issued a ruling in an Arkansas case brought by the Arkansas Public Law Center, a nonprofit group on whose board I serve. The Public Law Center brought the successful action over legislative abuse of expense accounts and supports a lawsuit pending over Little Rock and North Little Rock subsidies to local chambers of commerce (a practice in wide use around the state despite constitutional language that seems to prohibit it.) The center is also supporting legal work in behalf of residents who fear losing homes to condemnation for construction of the Little Rock Technology Park.
We also intervened earlier in a lawsuit in federal district court in Texarkana over open court records, an antitrust lawsuit by two corporations against eBay and Skype. A district court sealed the entire record of the case in response to a request for protection of confidential business and technical information. The 8th Circuit said today:
We discern no abuse of discretion in the district court’s decision to seal sensitive business information included in the complaint, but we vacate the order and remand for the district court either to explain why sealing of the entire pleading is warranted or to unseal a redacted version of the complaint.
The court agreed with the argument that there's a common law right to court access, but said the 8th Circuit hadn't yet established a 1st Amendment right to court access, as the center's brief argued. And the court said sealing of certain information was well within the court's powers. Nonetheless,
... While the district court was justified in sealing information derived from materials produced under the protective orders, portions of the complaint may be amenable to public access without jeopardizing the confidentiality of sensitive information exchanged in the patent infringement litigation.
... We remand the case for the district court to assess whether redaction of confidential business information is practicable. The court should either unseal a redacted complaint or deny the motion to unseal with an explanation why the entire complaint should remain under seal.
We decided to enter this low-profile case to defend public access to courts. When court is conducted in private — and the use of protective orders in business litigation is more common than you might guess — accountability is inevitably lost. The public establishes and pays for the courts. It should have the fullest record possible of how this public work is performed. I fought an identical battle some years ago when the entire record of a divorce case of a prominent Conway couple was placed under seal, from initial complaint through decree. Circuit Judge Karen Baker, now on the Arkansas Supreme Court, eventually upheld the sealing of that record, including grounds for the divorce cited in the decree. The information, though routinely available in thousands of court cases, did "not concern any public interest," she ruled. It was judicial home cooking of the worst sort, but I couldn't afford an appeal. The contest of the circuit court secrecy order at least put the fact of the divorce filing, decree and out-of-court property settlement into the public record. That total secrecy was the genesis of my complaint.