Public Trials and the Protection of Records: The Scope of a Visible Judgment

Abstract

This volume asks whether a trial can be held in public while protecting the parties' secrets and safety. The openness of hearings, the parties' access to records, and the general public's access to written judgments are distinct entitlements. Only by separating the portions to be protected from the persons seeking access can openness and safety be protected together. The path to relief opens where the distinct access requirements for hearings, written judgments, and litigation records are met and access is sought within the scope outside statutory restrictions, and closes where access to designated portions is restricted because protection of the relevant secrets or against harm, or a statutory ground for exclusion, has been recognized. The six sections address, in turn, public hearings and public pronouncement of judgments, who may access records, limiting the secret portions, risk of harm and personal information, separate rules for the disclosure of written judgments, and the boundary between use and harm. The strongest counterargument is as follows. Repeated partial restrictions may effectively collapse the principle of openness. Requests for information disclosure in general, freedom of research, and the protection of secrets in open research are not addressed in this volume.