Supreme Court bid sought to offer public access to docket sheets
By THOMAS B. SCHEFFEY
January 25, 2010
In a unanimous decision, the state Supreme Court has rebuffed an effort by an open-government group to make more Judicial Branch records publicly accessible under the state’s Freedom of Information Act.
The case, Valvo v. FOIC, has a long history that traces its roots to a related decision — Clerk of GA 7 v. FOIC — that led to the downfall of then-Connecticut Chief Justice William J. Sullivan. The open court records debate has also involved sealed court documents, prompted legislative hearings and led current Chief Justice Chase T. Rogers to push for more openness in court operations.
The net effect of the latest decision is that judges can still seal bare bones court docket sheets – which contain a list of actions taken in a specific case — if they find privacy rights of litigants outweigh the public’s right to know. Open records advocates say that’s too much secrecy.
“We had hoped that the court would take this opportunity to fix what we believe was a serious mistake it made several years ago in the GA 7 case,” said attorney Daniel J. Klau, of Pepe & Hazard, who has represented the Connecticut Council on Freedom Of Information, a pro-open records organization.
Citizens, lawyers and eager young news reporters sometimes assume – to their eventual chagrin—that Connecticut’s Freedom of Information Act could be helpful in obtaining basic data about new cases in the courts.
In 2002, Bridgeport solo lawyer Russell Collin invoked the FOIA and asked the clerk of the Superior Court in Meriden for three weeks of motor vehicle docket and “day book” information. Collins had studied law in Texas, where lawyers used the same basic court data to locate potential business.
Collins’ request was denied, and he filed a freedom of information case against the Clerk of G.A. 7. The case reached the state Supreme Court in 2006. But Sullivan attempted to delay publication of the decision, thinking the anti-FOIA majority holding might impede Justice Peter T. Zarella’s bid to succeed Sullivan as chief justice.
Zarella, the high court’s only Republican at the time, was nominated by Gov. M. Jodi Rell and was extremely likely to be confirmed. But the delay Sullivan placed on the Clerk decision triggered a firestorm in the Democratic-controlled legislature. The ruckus eventually derailed Zarella’s promotion.
Sullivan tried to head off the damage by offering to have the case re-argued and re-decided without him on the panel. Attempting to end controversy, the state Freedom of Information Commission narrowly voted against a re-argument.
In ruling against release of docket sheets, Sullivan, writing for the Clerk majority, focused on the 1983 case of Rules Committee v. FOIC. In that case, Chief Justice Ellen Ash Peters noted that the state FOI Act applies only to the Judicial Branch “administrative records” and not to “adjudicative records” that might interfere with the courts’ critical function of deciding individual cases. Peters narrowly defined “administrative” matters as solely the “budget, personnel, facilities and physical operations of the courts.”
Sullivan, in Clerk, broadened the definition of adjudicative records to include “records created in the course of carrying out the courts’ adjudicatory function.”
Subsequently, in a March 2008 hearing before the legislative Judiciary Committee, Chief Court Administrator Barbara Quinn testified that she was agreeable to adding docketing information to the list of “administrative” categories. The bill to do just that was never voted on by the full legislature.
In the Valvo case, the Supreme Court never came close to re-examining the Clerk decision, as the plaintiffs had hoped.
In 2007, the Connecticut Council on Freedom of Information, and its then-president Vincent Valvo, sought access to some 500 docket sheets of sealed court records from the pre-2003 era when the state court system had three levels of secret cases, many of them involving prominent people. The CCFOI invoked the FOIA, but it was consistently rebuffed all the way to the Supreme Court.
Also in 2007, Rogers, in an early gesture of openness when she became chief justice, ordered hearings to decide whether a large number of secret dockets and files could be unsealed. In the end, almost all docket sheets were allowed to be open.
Nevertheless, in the recently released Supreme Court decision, Rogers and the court majority declined to re-define docket data as “administrative records” or to discourage docket sealing in the future. Rogers, writing for the court, noted that the state Freedom of Information Commission admitted it had no power to unseal a judicially-sealed document, even if it contains only “administrative” data.
Furthermore, neither the chief court administrator nor any other Superior Court judge could countermand another trial judge’s sealing order, Rogers wrote, “because it would wreak havoc on the judicial system.” Thus, because no relief could be granted, the case was non-justiciable, the high court held.
Last week, Valvo, a onetime publisher of the Law Tribune, decried the notion that courts ever need to seal dockets. “The Connecticut Supreme Court,” Valvo said, “told the people of Connecticut that access to elemental docket sheet information — the basic roadmap of what actions the Judicial Branch of government is taking against your brother, or wife, or son — is available only as long as judges want it to be.”, due to a 2006 decision, Clerk of GA 7 v. FOIC. That decision expanded the definition of “adjudicative” records to include simple docket sheet data, which is arguably the type of administrative document legally available through the FOIA. Because of the Clerk decision, Valvo was denied the docket data by court administrators, by the FOIC agency, and by a Superior Court judge. With Valvo v. FOIC, he appealed the denial of the docket sheet, urging the Supreme Court to reconsider its rationale in Clerk. It chose not to, and today Connecticut judges can still seal part or all of an ordinary docket sheet, if they find individual privacy rights outweigh the public’s right to know.
Three of the seven justices in Clerk – David M. Borden, Joette Katz and Flemmng L. Norcott – favored a test based on the 1988 case of Bar Examining Commission v. FOIC.
Notes: Quinn: March 3, 2008:
We do believe that administrative function should be defined as including the management of the internal institutional machinery of the court system, accounting, budgeting, personnel, facilities, physical operations, scheduling, record keeping, and docketing.
Senior Writer Thomas B. Scheffey has been a member of CCFOI since 2003, and is its current president.