This week, I have had pause to think about the issue of transparency in the Courthouse. Presently, there is a furor over the fact that a criminal prosecution was sealed and a gag Order was issued prohibiting the participants from discussing the case.
In Family Court, many cases are sealed. Allegations of dependency, abuse or neglect; termination of parental rights; and adoptions are a few of the cases which are sealed as a matter of law. The reasoning is fairly obvious: the public has an interest in protecting children from an open examination of legal matters which affect them, but over which they have no control. Even with those good intentions, bad results occur, such as an investigator makes an error or, frankly, goes off the rails, and there is no public examination of that fact.
Most of my day is spent here in Louisville handling divorce and custody cases. The public is free to sit in the Courtroom, listening to the proceedings, or examine the file, even if they have no direct interest in the case. Even in those cases, we redact (a partial seal) portions of the record which name children or set out personal identifiers (Social Security Numbers, Account Numbers, and Dates of Birth to name a few).
Outside of Family Court, a seal is put in place, ideally, only to protect national interest, public safety (witnesses), or trade secrets/intellectual property. Even then, a seal should be sparingly employed. The public good of a free and open legal system outweighs the private good of privacy.
What is happening now brings to mind a case I handled some time ago. I was representing the spouse of a political figure. The political figure wished to have the divorce sealed because it could be potentially damaging outside of the Courtroom in a political context. The Court entertained the seal. The Court was wrong then, and I am afraid the seal now is wrong. We did away with Star Chambers several centuries ago. We should stay away from them now.