Let's start by thinking generally. Why should any court record be open, or sealed? A big argument for keeping them open even if the litigants, or prosecutor and defendant want them sealed is that it is useful information for the public. We would like to know who has done illegal things, and we would like to know all the evidence, rather than just the conclusion-- which in fact may never be reached if there is a settlement or plea bargain.

Since the people involved are using the public courts, without paying anywhere near the cost of the court system, I don't think they have a moral argument for keeping the records secret. This is especially true of cases such as divorces or contract disputes, which the parties could have agreed would be decided outside the courts by putting in arbitration clauses. And in fact any dispute can be settled out of court, by just the two sides or by their appeal to a mediator, or even by appeal to an arbitrator, I suppose, if they sign even a post-dispute contract to abide by his decision.

On the other side, having the records public is embarassing for the litigants, and for their children. I don't find this a very convincing argument. It *should* be embarassing, if they did shameful things. Maybe the prospect of such embarassment would keep them from doing shameful things in the first place. And this argument is really saying that the litigants have the right to keep other people from knowing the truth about them, truth that would matter to how other people wanted to treat them. So this argument is really saying we should sacrifice the interests of good people and truth in favor of the interests of bad people and lies.

A less obvious argument against secrecy can be based on game theory. Suppose that if both parties agree, the records can be sealed. This becomes a bargaining chip. I will use the Ryan case for concreteness. If records can be sealed, that gives Mrs. Ryan incentive to make all kinds of shameful allegations against Mr. Ryan in the divorce case, not just because the judge might award her more money, but because she can then extract more money from Mr. Ryan for agreeing to seal the records. If the records had to be public, she could not extract those payments for agreeing to silence.

The same sort of bargaining would come up in criminal prosecutions. The prosecutor's selfish aim is to get as long a sentence as possible with as little effort, to advance his career. From a selfish point of view, he doesn't care if the public finds out the truth about the defendant or not. The defendant does, though. For example, a child molester might want to get a job in a day care center so he can prey on children again after he gets out of jail. This will be easier if he pleads guilty and accepts a 2-year sentence for, say, obstruction of justice with a sealed record than if he pleads guilty and accepts a 1-year sentence for child molesting. The prosecutor will agree. Only the public loses from such a deal.

On the other hand, there is another sort of secrecy that is justified. Often a litigant will want information kept secret not because it is anything shameful, but because it is valuable for business. We do not want to allow lawsuits to be filed for the purpose of forcing defendants to publicly reveal secret recipes, market shares, expansion plans, and such things. Thus, in those cases it seems reasonable to seal records. [permalink: 04.06.30d.htm]

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