Your right to know is not up for negotiation

“Resolved … That the General Assembly doth particularly protest against the palpable and alarming infractions of the Constitution … because it is levelled against that right of freely examining public characters and measures, and of free communication among the people thereon, which has ever been justly deemed, the only effectual guardian of every other right.”

— James Madison, Virginia Resolutions Against the Alien and Sedition Acts, 1798

There has long been tension between your right to know and somebody else’s determination of what you have a need to know.

Do you really need to know a particular surgeon has been sued for malpractice 20 times but all the details in court files have been sealed? Do you need to know the trade secrets of a tire manufacturer sued repeatedly because its tread separates?

If you are about to go under the knife of that surgeon or buy new tires, you do.

Do you really need to know that some guy was arrested on suspicion of burglary but never brought to trial? What business is that of yours? He is innocent.

It is your business if you are about to go vote to re-elect the district attorney, who just happens to be the burglar’s brother-in-law.

Your right (and need) to know is constantly under assault. We dodged one attack this past week and appear to be headed for a fairly reasonable resolution of another.

After a vigorous protest from editorial pages across the country, including the Review-Journal, the American Bar Association backed off a proposal advocating that a host of information about the criminal justice system be sealed from public scrutiny.

The Bar’s Commission on Effective Criminal Sanctions found what it considered a serious problem: People with arrest records and criminal convictions were being discriminated against by employers and landlords.

So the commission’s immediate solution to was to throw a cloak of secrecy over the records. Under the proposal, people who had been convicted of serious crimes could have all records of that conviction closed from public view after some unspecified period of time. People who were arrested but not convicted would have their records expunged immediately. That would apply to such notable innocents as O.J. Simpson and Tony “The Ant” Spilotro.

“What people want, except the press, is a genuine opportunity for people to have a second chance,” Stephen Saltzburg, a law professor and co-chair of the Bar commission, was quoted as saying by The Associated Press.

Lucy A. Dalglish, executive director of the Reporters Committee for Freedom of the Press, rightly countered, “The public’s right to know must not be sacrificed simply because employers are wrongly discriminating against those who have encountered the criminal justice system.

“Alternative measures, including forbidding employers from using such records as hiring criteria would be more effective and would not surrender the public’s fundamental rights of access.”

Also this past week, a committee appointed by the Nevada Supreme Court released a draft of proposed rules for when and how state judges may seal certain portions of civil lawsuits.

The committee was seated in response to a February series of Review-Journal articles revealing that more than 100 civil cases in the past six years had been sealed from public view without any rationale or explanation whatsoever.

As currently drafted, the new rules would greatly enhance and protect the public’s right to know what is happening in our tax-funded civil courts.

For one thing, the rules simply and clearly state: “Under no circumstances shall an entire court file in a civil action be sealed.”

Unlike the current practice, the new rules would require the public to have access to a case number, the date of filing, names of parties and their attorneys, the judge, case type and cause of action, and the order to seal, along with written findings supporting the order to seal.

Openness would be the default setting. “Agreement of the parties alone does not constitute a sufficient basis for the sealing,” the rules state, adding that sufficient privacy or safety interests must be weighed against the public interest.

The draft also spells out how anyone may seek to have a seal broken and obliges these seeking secrecy to “show that compelling circumstances continue to exist” to warrant the seal, not merely some judge’s whim about what you need to know.

Thomas Mitchell is editor of the Review-Journal and writes about the role of the press and access to public information. He may be reached at 383-0261 or via e-mail at tmitchell@reviewjournal.com.