D.C. Council Considers Automatic Sealing of Some Criminal Court Records: Going Too Far (And Likely Ineffective)?

Fritz Mulhauser | April 12, 2021 | Last modified: April 19, 2021

The U.S. Supreme Court once held that “a mandatory rule [denying public access to a class of court matters], requiring no particularized determinations in individual cases, is unconstitutional,” yet that was precisely the proposal advocated by every witness (but one) in the D.C. Council hearing April 8 on sealing criminal records in D.C. Superior Court. The Open Government Coalition testified against the mass sealing aspect of the bill.

Some courts elsewhere have held that record policies are the courts’ alone to decide, but sealing has long been in D.C. Code apparently without challenge. If a D.C. court declined wholesale sealing, enforcement would be interesting since the judges are independent (nominated by the President and confirmed by the Senate), Congress funds the D.C. courts, and the Home Rule Act explicitly limits the D.C. Council authority over court matters.

The main bill B24-0063 was the mayor’s, which she sent in February calling it her “first priority” in this two-year legislative session. The bill expands existing law by shortening the waiting period before a person is eligible to apply to the court to seal individual case files and expanding the crimes eligible for sealing. These respond to longstanding criticisms of current law. 

The dramatic change is a new mandate for automatic record sealing. If passed, the law requires D.C. courts to seal any case involving non-dangerous crime that ends “without conviction” within 90 days.

The key phrase “without conviction” is not defined but would seem to include not only cases that went nowhere in court, but also all cases reversed on appeal after trial.

An even broader bill B24-0180 submitted April 1 by Council member Christina Henderson (Ind.-At Large) and seven others, was mentioned frequently but was not on the hearing agenda. The Coalition later submitted supplementary testimony also opposing that bill.

D.C. Open Government Coalition hearing testimony, presented by board member Robert Becker, a criminal defense and media law attorney, brought back the First Amendment into the conversation. He reminded the lawmakers of two kinds of public interest—public access to court proceedings and records as well as limiting harms from misuse of records.  (Testimony by the Council for Court Excellence supported the bill but offered a compromise to also maintain some access by permission.)

Press coverage such as Colleen Grablick’s readout in DCist omitted these differing voices.

The First Amendment is thought of as protecting speech. The Supreme Court in a case overriding a judge’s decision excluding the press and public from the fourth trial of an accused murderer, connected the dots: “[i]n guaranteeing freedoms such as those of speech and press, the First Amendment can be read as protecting the right of everyone to attend trials so as to give meaning to those explicit guarantees.”  Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 575 (1980).

The Coalition testimony highlighted evidence such as  

• how few states are doing wholesale automatic sealing – New York and Pennsylvania. are perhaps unique (a federal counterpart has been introduced several times but never advanced); and                                                                                                                                                                                                                                  
• multiple examples of the important public accountability and education that can come from analysis using full court records (with a vivid example at this very hearing — research cited by advocates on arrests not leading to convictions that would have been impossible if records were limited as this bill requires).

The Supreme Court has been skeptical of various mandatory rules closing courts’ proceedings and records as not “narrowly tailored,” a stiff test applicable where First Amendment freedoms are involved. But the law leaves many questions unanswered how First Amendment protections apply to assure access throughout the many stages of criminal and civil court proceedings and the related records. 

Trial access (think Minneapolis just now) is clearest; the Court generally rules that “the constitutional right of the press and the public to gain access to criminal trials will not be restricted except where necessary to protect the State’s interest.” Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 607-608 (1982). (The quote in the first paragraph above was from the same opinion, at 611.)

Yet the High Court has not spoken further in decades to update the application of First Amendment law to the many deep questions about records (more and more important in the age of online access). D.C. Court of Appeals has found a strong presumption of access in the common law.

Practical questions seem important; even if court files are sealed after a case ends favorably, surely facts of any arrest and early court stages have been accessible for public view for weeks or months? Automatic sealing laws thus seem addressed to only one part of the broad goal of a “right to be forgotten” as Europeans have sought starting with the legal fight in 2014 against Google and other data collectors.

The mayor’s proposal, if passed into law, could stimulate an interesting legal test. Does the automatic sealing of thousands of records without any review, whatever its good motives, go too far?