MFIA Clinic Proposes Changes to Sealing Rules

UPDATE: On May 11, 2017, Chief Judge Janet Hall notified the MFIA Clinic that she had distributed the report to each magistrate and district judge in the District of Connecticut and that she had asked the Criminal Local Rules Advisory Committee to address the issues raised in the report expeditiously.

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On April 27, 2017, the Media Freedom and Information Access (MFIA) Clinic at Yale Law School delivered to the Chief Judge of the District of Connecticut a report summarizing the results of its six-month investigation into the public availability of search warrant and electronic surveillance records in Connecticut’s federal courts. The investigation uncovered systematic sealing practices that are inconsistent with the public’s legal right to inspect judicial records. The MFIA report proposes a number of changes to current court rules to address these shortcomings and ensure that the public has access to information it is entitled to know about the activities of federal law enforcement officers in this State.

The MFIA investigation was spearheaded by Yurij Melnyk ‘17 and Andy Udelsman ’17, who studied the local rules governing the sealing of court records, interviewed Assistant U.S. Attorneys and employees of the Clerk of Court’s office, and analyzed the sealing of court files going back more than 15 years. The students also surveyed the rules and practices in other jurisdictions to see how Connecticut’s federal court stacked up.

This investigation revealed that Connecticut currently allows essentially permanent sealing of search warrants and electronic surveillance orders, many of which are apparently not even recorded on a public docket.

“We found a large subset of search warrants—those that do not result in prosecutorial evidence—remain sealed forever,” said Melnyk. According to the report, such permanent sealing is troubling because search warrants that do not result in a prosecution are perhaps the most likely to have constitutional infirmities. And because electronic surveillance orders are not docketed, “the public has no way of knowing even how many orders for electronic surveillance have been granted,” Melnyk observed.

The report’s co-author Udelsman considers the “perpetual shroud of secrecy” to be “totally unacceptable.” The report describes how the systematic, permanent sealing of search warrants and electronic surveillance orders violates the public’s constitutional right of access to judicial records. The current situation also prevents citizens from monitoring how prosecutors exercise their surveillance powers and from assessing how the judiciary balances the right of privacy against the needs of law enforcement, the report explains. The report warns that the current lack of information undermines public confidence in law enforcement and the judiciary and makes it impossible to have an informed debate about the proper use of emerging surveillance technologies.

The MFIA report proposes several changes to the Connecticut District’s rules and practices, drawing upon examples of other districts throughout the nation. It urges that all search warrant materials should automatically be unsealed by default once law enforcement officers file a return with a judge confirming what the search accomplished. It also recommends adding a “sunset” provision to all orders sealing search and surveillance materials, so that the orders will expire automatically after a certain amount of time. Recognizing that in some cases further sealing may be necessary for law enforcement reasons, the report proposes that any such necessary extensions be for a definite and limited period of time. The report also proposes reforming the court’s system for docketing search and surveillance materials to permit all such records to be located through a simple search.

A copy of the MFIA report is available here. By releasing the report, MFIA hopes to draw attention to a growing problem of increased secrecy within our court system, at a time when new and invasive surveillance technology is becoming increasingly prevalent. As the Supreme Court stated in the 1980 case of Richmond Newspapers, Inc. v. Virginia: “People in an open society do not demand infallibility from their institutions, but it is difficult for them to accept what they are prohibited from observing.”

The MFIA Clinic is a legal services clinic dedicated to increasing government transparency, defending the essential work of news gatherers, and protecting freedom of expression through impact litigation, direct legal services, and policy work. The clinic is a program of the Abrams Institute for Freedom of Expression at Yale Law School.