The article is here; the Introduction:
Open courts are a cornerstone of democratic government, ensuring not only that justice is done but that it is seen to be done. As the Supreme Court recognized in Press-Enterprise Co. v. Superior Court ("Press-Enterprise I"), "[p]eople in an open society do not demand infallibility from their institutions, but it is difficult for them to accept what they are prohibited from observing." While public access to court proceedings is indispensable to preserving this openness, access to court records is equally critical. In practice, much of the business of the courts—particularly in the federal system—takes place through written filings: motions, briefs, evidentiary submissions, and judicial opinions. Without access to these records, the public cannot understand and scrutinize the judiciary's work.
Despite the longstanding presumption that court records are open for public inspection, parties frequently attempt to "seal" documents in order to hide them from public view. Empirical research reveals that the sealing of court records is extensive and increasing, particularly in federal courts and states with broad sealing statutes. Indeed, the sealing of court records is often routine, with minimal opposition or judicial scrutiny. A recent examination of sealing in federal district courts found that motions to seal were among the most common court filings, with over thirty thousand cases containing such motions in the past five years. One federal judge even compared the increasing secrecy in the courts to "kudzu," a nearly uncontrollable creeping vine that "blocks access to sunlight, slowly strangling fields and forests in its wake."
The harms that come from this secrecy are far from abstract. In a series of investigative reports titled "Hidden Injustice," Reuters revealed how secrecy in U.S. courts—particularly the sealing of court records—shields corporate misconduct and conceals information vital to public safety. Their investigation discovered that federal judges had sealed evidence related to harmful products in about half of the 115 biggest product liability cases over the past twenty years and that in 85% of those instances judges provided no explanation for keeping the information from the public. Looking specifically at opioid litigation, Reuters determined that judges allowed litigants to file under seal evidence that could have alerted regulators, doctors, and the public to the dangers of prescription opioids; this concealment, they concluded, played a significant role in prolonging and deepening the opioid crisis.
Under current case law, as discussed in more detail below, the sealing of court records should be rare and permissible only under limited circumstances. In practice, however, the opposite is true: Sealing has become disturbingly routine in the federal courts, often carried out with little meaningful judicial oversight.
