In Sharper Focus: The Courts Shall be Open.

In the recently-argued case of Rayess v. Educational Commission for Foreign Medical Graduates, 2011-1933 the Ohio Supreme Court permitted most of the documents in the case to be filed under seal.  Let’s take a closer look at under what circumstances this is permitted.

Article I Section 16, the redress in the courts provision of the Ohio Constitution begins, “All Courts shall be open…”  That means the public has the right to walk into a courtroom and watch any trial that is going on.  That right is especially important in criminal trials, which are brought on behalf of the people.  And generally, subject to the exceptions in the statute, records relating to judicial proceedings are public records under R.C. 149.43, Ohio’s Public Records Act. That means a citizen could walk into the clerk’s office and read everything filed in a given case.

As with most rights, the public right of access to trials is not absolute. In 1990, in the case In Re T.R., the Supreme Court of Ohio held that the Open Courts provision of the Ohio Constitution, along with the Free Speech and Free Press clauses of the First Amendment to the U.S. Constitution, and the analogous provisions of Article I Section 11 of the Ohio Constitution, create “a qualified right of public access to proceedings which have historically been open to the public and in which public access plays a significant  positive role.”

 Superintendence Rules  44-47 also have a direct bearing on open records.  The rules create a presumption of public access to court records.  Sup.R. 45(A) states specifically, “Court records are presumed open to public access.” You can find the definition of a court record in Sup.R. 44. Essentially, it is any document submitted to a court or filed with a clerk in a judicial proceeding.

Every rule of course has its exceptions.  Sup.R. 45(E) discusses restricting public access to a court record. Upon written motion by any party to a judicial proceeding a court, with notice and an optional hearing, may restrict public access if it finds by clear and convincing evidence (a standard of proof higher than required in a typical civil case, but not as high as reasonable doubt) that the presumption of public access is outweighed by “a higher interest” after considering all of these factors:

  • Whether public policy is served by restricting access
  • Whether any state, federal or the common law exempts the document or information
  • Whether factors supporting restriction exist including risk of injury to persons, individual privacy rights, proprietary business information, public safety, and fairness to the adjudicatory process

In his Supreme Court case, Mr. Rayess filed a  “Motion to extend validity of confidentiality order issued by trial court and court of appeals to cover all filings in Supreme Court and any future Supreme Court appeals from same second district case number.” Since the motion itself was filed under seal, I can’t tell you what was in it.  And as I reported after listening to the argument, I have even less of an idea why these case documents were sealed, or which of the exceptions to access applies. 

So, the reason why the Court permitted the sealed documents in the Rayess case remains a mystery.  But the timing is ironic, because on July 25, 2012, the Court released a merit decision in  State ex. rel. Vindicator Printing Co. v. Wolff, slip opinion No. 2012-Ohio-3328 in which the Court, in a unanimous per curiam decision, strongly underscored its commitment to openness in court proceedings and records. . You can read a detailed summary of the decision by Dennis Whalen of Ohio Court News here.  I’m not doing my usual detailed analysis of this merit decision.  I’m just using it to highlight the unusual nature of the sealed documents in the Rayess case.

 In the complicated Vindicator case, the Supreme Court had sent retired Montgomery County Court of Appeals Judge William Wolff to Youngstown to preside over a high profile public corruption trial.  The most prominent of those indicted were Anthony Cafaro Sr. and his sister Flora, principals of the Cafaro Company. The charges stemmed from the unsuccessful alleged attempts of Anthony Cafaro and the Cafaro-related companies to keep the Mahoning County Department of Job and Family Services at one of its mall locations.

Judge Wolff ordered many documents in the case to be filed under seal. Specifically at issue in this original action filed by the local newspaper directly in the high court were the sealing of the bills of particulars and a statement of facts in the state’s memorandum in opposition to the Cafaro defendants’ motion to dismiss the indictment. Even though the underlying criminal case was later dismissed by the state without prejudice, the  newspaper continued to seek access to the sealed documents.

The judge had sealed those documents because he determined they hadn’t been used by him to decide the case, and therefore weren’t entitled to presumptive public access.  The other respondents- the defendants below—made different arguments in favor of sealing those documents. They argued that one of the exceptions to the presumed right of access applied.  They argued that under Sup. R. 45 (E), the fairness of the adjudicatory process would be compromised by public access to these records.

The high court rejected both sets of arguments in this case, deciding the case squarely on the basis of the rules of superintendence cited in this post.  As for the judge’s reasoning, the Court found no exception in the superintendence rules for records not used in making a decision, and refused to read such an exception into the rule. The Court also disagreed that unsealing the records would substantially prejudice the defendants’ right to a fair trial, finding a complete failure of proof on that exception. Two other arguments in favor of sealing—that post-dismissal privacy interests outweighed the presumption of access and traditional discovery and work product arguments protected these documents—were also rejected by the Court.

So, the Youngstown Vindicator decision on unsealing of documents is the norm.  The Rayess case is the exception.



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