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CONTACT Justin Silverman | 774.244.2365 | justin@nefac.org
Read the May 17 letter sent on behalf of NEFAC and other open government advocates protesting the records policy.
The New England First Amendment Coalition recently joined 13 open government and media organizations to protest a new Maine policy that prohibited public access to closed criminal cases. The groups called for the policy’s suspension which occurred this week after several days of discussion between the organizations and state officials.
The judicial branch policy required all records of dismissed criminal cases, except those involving a plea deal, to become automatically confidential 30 days after dismissal. The policy seriously undermined the First Amendment and the public’s right to know, argued NEFAC’s Sigmund Schutz, an attorney at PretiFlaherty and a member of the Maine Freedom of Information Coalition. Schutz wrote to state officials on behalf of the open government and media groups.
In a May 17 letter, Schutz addressed the groups’ concerns to James Glessner, a state court administrator, and Mary Ann Lynch, a state attorney and media liaison to the judicial branch. Schutz explained that:
Under this policy, a person may be charged, indicted, jailed, and go to trial, but then have all charges dismissed. All of these proceedings would happen in open court, and records of them would be contemporaneously available to the public. The proceeding may be reported by the news media. Then, 30 days after charges are dismissed, the court’s files are permanently coded as “sealed” by judicial branch administrative offices and become off limits to the public. This administrative seal happens without any court order or notice to the public. Even defendants in closed cases are apparently barred from accessing their own court files if they ask for them 30 days after charges are dismissed.
Responding to the letter as well as conversations with Schutz and the Sun Journal’s Judy Meyer, officials suspended the policy on June 8.
“The policy undercut the right to know of every Maine resident and it should never have been implemented,” said Justin Silverman, NEFAC’s executive director. “Without the persistence of watchdog journalists who exposed this short-sighted policy, we may never have known it even existed.”
Reporters at the Sun Journal discovered the policy while preparing a story on a manslaughter prosecution resulting from a 2014 car accident. The newspaper reported last year on the accident, the indictment of the car’s driver and the driver’s plea hearing. But when seeking information in April for a follow-up story, the court clerk said no information was available on file, wouldn’t confirm the existence of the file and said “we can’t release any information to the public.” The Sun Journal had reported on hundreds of dismissals, often 30 days after the dismissal date, and never before encountered any barrier to accessing relevant court files.
In addition to calling for the policy’s immediate suspension, the groups emphasized that:
No notice was given of the policy change. Interested parties such as local media, the state legislature’s Right-to-Know Advisory Committee and the Judicial Branch’s Committee on Media and the Courts were not informed of the new policy before it was implemented.
The new policy violates the First Amendment. The First Circuit recently held that “a blanket restriction on access to the records of cases ending in an acquittal, a dismissal, a nolle prosequi, or a finding of no probable cause, is unconstitutional, even if access is not denied permanently.”
The policy is contrary to Maine’s common law right of access. This common law right to judicial records is “well established in Maine and in all other state and federal courts in this country,” according to the letter.
The policy is at odds with a judicial branch administrative order providing broad access to court records. “The closure of all dismissed criminal cases 30 days after dismissal is a material departure from past practice,” Schutz wrote. “Had that change been intended, some obvious reference to it would have been expected on the face of the Public Information and Confidentiality order.”
The policy is against the public interest. “Transparency and accountability are core values of our criminal justice system,” the letter stated. “A policy of blanket and automatic secrecy as applied to closed criminal proceedings cannot be squared with those values.”
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NEFAC was formed in 2006 to advance and protect the Five Freedoms of the First Amendment, including the principle of the public’s right to know. We’re a broad-based organization of people who believe in the power of an informed democratic society. Our members include lawyers, journalists, historians, academics and private citizens.
Our coalition is funded through contributions made by those who value the First Amendment and who strive to keep government accountable. Donations can be made here. Major Supporters of NEFAC for this year include The Providence Journal Charitable Legacy Fund, The Robertson Foundation, The Boston Globe and Boston University.