A draft posted online indicates that the fourteen-member Rules of Criminal Procedure Committee hasn’t yet settled on how weighty an interest must be to justify keeping a court record from public view or allowing the public to see only a redacted copy. The draft gives committee members four options: Should the interest be “compelling,” “significant,” “substantial” or “overriding”?
The draft rule does say, however, that a court order to limit public access should explain how making court records inaccessible would serve another interest, e.g., a defendant’s right to a fair trial. The court order also would have to find that no less restrictive means are available and conclude that the identified interest outweighs the public interest.
Two concerning aspects of the draft rule: A motion to restrict public access to court records and any subsequent hearing on the matter both would automatically be closed to the public.
For several years, the Colorado Freedom of Information Coalition has urged the judicial branch to adopt a uniform standard for restricting access to criminal court records, proposing a rule modeled after one endorsed by the American Bar Association. A clear rule is needed, CFOIC has argued, because each trial court judge now must determine the legal standard to apply whenever there’s a dispute over limiting the public’s right to inspect court records.
“The justice system stands to gain if, at the outset, everyone understands the rule of law that guides the outcome,” CFOIC president Steve Zansberg wrote in a 2016 column.
Suppressed court records are available only to the court, parties in the case and the attorneys of record. Anyone else seeking access must obtain a court order.
Although the lack of a uniform standard has been an issue for a long time, stories in the Denver Post helped push the judicial branch to act. In his “Shrouded Justice” series in 2018, the Post’s David Migoya revealed that more than 6,000 Colorado court cases, many of them involving violent felonies, were hidden from public view because of judges’ orders to suppress them. In many of those cases, there was no ruling available to the public to explain why the court file was inaccessible to the public. Many of the cases were not even listed on publicly available dockets.
Also, in a case decided by the Colorado Supreme Court, the Colorado Independent argued that a district court judge did not sufficiently explain why he sealed records alleging misconduct in the prosecution of a death row inmate; the judge cited only “countervailing considerations.”
The Rules of Criminal Procedure Committee includes judges, prosecutors and defense attorneys. If it votes to recommend a new rule, the proposal will be presented to the Colorado Supreme Court. Chief Justice Nathan Coats has indicated that a public hearing is likely before a rule is formally adopted.
Meanwhile, a bill is expected to be introduced in the state legislature this session that would track the parameters of the American Bar Association guidelines, which require a judicial finding of a “compelling” state interest to justify denying public access to judicial records and an additional finding that no reasonably available alternative means exist to protect that interest.
Jeffrey A. Roberts is the executive director of the Colorado Freedom of Information Coalition.
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