District court judges in Oklahoma have sealed at least one record of a case in more than 2,300 court cases between 2003 and 2007 ” typically because attorneys in the cases had simply asked, the Tulsa World recently reported.
Wrongful-death, medical malpractice and product liability lawsuits were among the cases the newspaper found with at least one hidden record.
Sealing court records runs contrary to the American tradition that a judicial system funded by taxpayers should be open to the public. The practice often hides from us much-needed information about dangerously defective products and misconduct by doctors, lawyers, corporations and government officials.
But in Oklahoma County, the Tulsa World found 292 cases with at least one record not available to the public, including 54 in which the entire file was closed. Sealed records included settlement agreements or parts of settlements in 48 cases. Summary judgments were sealed in five cases. Among the 292 cases were 26 medical negligence and seven product liability lawsuits.
The newspaper found a number of protective orders in the state that kept secret all those involved, including the judge issuing the order. It also uncovered scores of divorce proceedings with sealed records. At first glance, such situations might seem to be no one else’s concern. However, we all make life-affecting decisions involving other people. The more information we have about those people, the better decisions we can make. Why, for example, shouldn’t someone know why the person he or she is dating got a divorce or was the subject of a protective order? If the divorce proceeding involves an elected official, we can learn much about that person’s character from the related court records. That’s in the public’s best interest.
Among the more troubling findings by the newspaper were cases listing a hospital, doctor, medical facility or insurance company as a defendant. What threat to public safety or health is being hidden away when such cases are sealed? What we don’t know can hurt us.
One judge told the newspaper that he “factor(s) in the public’s need to know” when deciding to seal a record, but acknowledged that judges typically grant such an order if both parties in the case agree and no public advocate dissents.
But how can reporters or other advocates for open courts object if they don’t know such an order is being sought? The Tulsa World found no uniform system in the state for tracking and filing sealed cases and records. Of our state’s 77 counties, only the court clerks in Oklahoma, Tulsa and Wagoner counties could provide the newspaper with lists of case numbers for analysis.
Without a tracking system, we cannot gauge the secrecy of our courts or evaluate the decision-making of judges who routinely seal cases.
Oklahoma trial judges are left to their own devices in deciding which cases or documents to seal. Instead, our state Supreme Court should follow the lead of other states and implement rules for sealing and redacting records that would keep most court records open but allow closures justified by a compelling reason.
In December, for example, the Nevada Supreme Court adopted rules allowing closures “justified by identified compelling privacy or safety interests that outweigh the public interest in access to the court record.” An agreement by the parties in the lawsuit is not by itself sufficient to close a record. Anyone seeking to seal a civil court record must make the argument before the judge in open court. The judge must justify in writing the reason for sealing a record. Anyone can request that a court record be unsealed.
Nevada’s rules bar any sealing or redaction of information that would “have the purpose or effect of concealing a public hazard.”
The rules require public access to basic information about the case, such as the names of the parties, attorneys and judge, the case type and cause of action, the court order to seal, and the judge’s written findings supporting that order.
As Oklahoma voters, we should remember that the trial judges who are sealing court cases are elected. If we believe court records should be open to the public, we must elect judges who share that belief.
As one of our appellate courts noted 50 years ago, “The courts do not belong to the lawyers but are institutions by, of, and for the people.” That remains true only so long as our courts remain open to scrutiny by the public.
Senat is an associate journalism professor at Oklahoma State University and past president of FOI Oklahoma Inc.