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The Honolulu Advertiser
Posted on: Sunday, May 21, 2006

Secrecy has no place in court proceedings

It is a bedrock principle of American law and judicial process that most activities of our courts are open to the public. This openness, which applies not only to the courtroom but to access to the records and documents a court produces, is what gives the public confidence in the judicial process.

Americans are only too familiar with other nations where courts operate in secrecy, creating an atmosphere of fear and distrust.

Thus a decision Thursday by the 9th U.S. Circuit Court of Appeals affirming the public's right to view records from a whistleblower lawsuit filed by a Honolulu police detective strikes a strong blow for the principle of openness.

The case was decided after a lengthy and expensive legal battle launched by The Advertiser to gain access to those records.

It is a decision that from now on should make government officials particularly cautious about attempting to seal public documents simply because they can, or because they have traditionally done so.

It is important to note this decision specifically involves documents that were produced and introduced in court as part of a lawsuit. Once such files leave government offices and become part of a court record, a different standard applies. There is a "presumption" that the public has a right of access to these documents, the court said, barring "compelling" reasons that they should be kept secret.

In this case, the court said, the City and County of Honolulu and the U.S. Department of Justice failed to make any such compelling argument.

Given the strength and clarity of the 9th Circuit ruling, it would be a waste of time and taxpayer money for either the city or the federal government to appeal this ruling.

Rather, it makes sense to go forward with an understanding that the rules of the game have changed, and arbitrary or highhanded efforts to keep records secret on general principles or because they have traditionally been sealed will no longer work.

The court made it clear that there are times when a case can be made for extended secrecy. But the burden is on the agency trying to keep things sealed a standard not met in this case.

"(A) judge need not document compelling reasons to unseal; rather the proponent of sealing bears the burden with respect to sealing," the court said. "A failure to meet that burden means that the default posture of public access prevails."

There are, the court acknowledged, limited exceptions to this general rule, such as grand jury transcripts and warrant materials leading up to a trial.

This case, which began when The Advertiser started asking for court records in 2002 involving the whistleblower suit brought by Detective Kenneth Kamakana against the City and County and former police officials Lee Donohue and Milton Olmos.

The case was settled out of court in 2003 when Kamakana received $650,000. But the documents produced in the case remained with the courts and now — properly — become public.

Correction: An earlier version of this editorial incorrectly described John Kamakana.