Op-Ed: Missouri becomes ‘state of unknown persons’ by redacting court records

by Mark Sableman

The journalist’s guide to the federal courts reminds reporters that  “the media perform an important and constitutionally protected role by informing and educating the public.” It is a time-honored role, a duty to be the public’s watchdog on institutions, including courts. 

But if you’re a Missouri journalist and you subscribe to that education/watchdog theory of covering the courts, your work recently became much harder, because a new Missouri law strips from the public record the names of all witnesses and victims.

For centuries, the courts have been the most open and transparent branch of government.  Trials and hearings are conducted in public.  Court files, in our Anglo-American tradition, have long been public records open to inspection by citizens, journalists, and researchers.  Court files have been productive sources for information about public people, like politicians and business people, and their activities.  

But that was when court filings, court orders, and judicial opinions named names.  As of late August, that’s not the rule in Missouri.  Look at Missouri appellate decisions in September and October and you will see only the names of plaintiffs and defendants, but otherwise (with only a few exceptions in my research), they refer to people using  status words (e.g., “Victim”), relationships (e.g., “Victim’s sister”; “Girlfriend”; “Uncle”), initials (e.g., “D.V. and E.C”), profession (e.g., “Nurse”), and office (e.g., “[State Attorney]”and “[Trial Counsel]”).

This is so even for the names of public officials, like prosecutors, and other people who expect to be in the public eye, like trial lawyers.  Some recent court opinions mention scores of witnesses—but none of them, except the parties, is named.

The same is true of the names of victims.  They are secret, and do not appear in court decisions.  This applies even to murder victims, who are deceased and under the common law have no right of privacy, since that right is confined to the living.

The state of unnamed persons

In court opinions, Missouri has become the “State of Unnamed Persons.” And because a court opinion tells the story of what happened, you can’t tell the whole story without mentioning witnesses.  (To be sure, some witness and victim names have been redacted in the past, in certain sensitive circumstances, chiefly involving domestic and juvenile matters.  But the new system throws off this past nuanced practice for a blanket rule.)

Missouri journalists—and others, like lawyers, researchers, and public interest groups—are having to work with court opinions with redacted stories, incomplete stories, and hard-to-understand stories.  They are hard to criticize, critique, or watchdog, because you can’t tie names in the court-written stories to outside records and other references.  You can’t tell if “Expert Witness” in one case had been found to lack credibility in a previous case.  You can’t tell if Officer D.V. in State v. Smith was found guilty of misconduct in another case.  If you know and care about a particular case, you can’t tell if the witnesses you know about were called to testify or considered by the court.    

And the redacted court opinions are only the tip of the iceberg.  The same law that appellate courts began following in September would put a veil of secrecy over all witness and victim names in all court pleadings.  Under this law, all Missouri lawyers, in both civil and criminal cases, must redact from their pleadings all names of witnesses and victims.   They must also redact all witness names from exhibits attached to their pleadings.

Think of the recent reporting on the Dominion Voting Systems libel case against Fox News.    Both sides filed motions for summary judgment, and attached to those motions various documents, affidavits, and excerpts from discovery depositions.  News organizations reported based on these filings, thus giving their readers, viewers and listeners a complete and detailed view of the facts and circumstances underlying the dispute.   But that case was litigated in federal court in Delaware; in Missouri, since late August, all names would have been required to be redacted from all of those filings.  It would have been difficult or impossible to give the public the full story from such redacted filings. 

Unprecedented

How did this unprecedented redaction regime come about?  

It traces to a recent legislative act, not a court rule.  Until now, Supreme Court Operating Rule 2 set forth all the information that could not appear in public court records.  Most of those rules, some created by statute and some by rule, related to sensitive criminal, domestic, or juvenile situations.  

But in the 2023 legislative session, the General Assembly passed several omnibus bills that included provisions that barred use of witness and victim names in judicial pleadings and orders.  These provisions slipped through the lobbyists, news organizations, and public interest groups that try to combat governmental secrecy.  One of these bills, Senate Bill 103, became law.  

As best as some of us can determine, the provision at issue, a two-page section of the 54-page SB 103, was slipped into the omnibus bill at a committee meeting, several weeks before the end of session, and never directly discussed or debated at committee or on the floor of either chamber. The public record is sparse on who initiated it or why.  

What we are left with, then, is the bill itself.  It adds language to section 509.520 of Missouri Revised Statutes, requiring the redaction of all witness and victim names from all pleading and orders.  It contains an effective date of Aug. 28, 2023, although it also directs the Missouri Supreme Court to create implementing rules (thus suggesting that it wouldn’t become effective without implementing rules).

This redaction regime seems draconian and severe to me, a media and First Amendment lawyer who has always understood the openness and transparency of the courts as one of the bedrocks of our system.  

In my thinking, the law seems legally deficient in several different ways.  Some of the reasons are procedural, relating to how it was enacted, contrary to the state constitution’s command that court rules can be changed only “by a law limited to the purpose.”  It also seems wildly overbroad, since so many victims and witnesses have no privacy rights, and in any privacy rights need to be balanced with the values of judicial transparency.  

My greatest concerns focus on the effects of the rule.  The public will learn less about what the courts do, the media will find it harder to report meaningfully on court cases, and the courts themselves may lose some of the respect and legitimacy that has developed from their historic openness.  It could also cause state secrecy to snowball.  The statute doesn’t bar public officials, like police and prosecutors, from disclosing and discussing witnesses and victims, but as a practical matter, as they see these matters shrouded in the court file, they will probably become less likely to discuss them.

Media reporting on the courts will also likely be inhibited.   Remember the education and watchdog purposes mentioned in the quotation above?  By the way, that wasn’t taken from any radical source—it comes verbatim from the federal courts’ “A Journalist’s Guide to the Federal Courts.” 

Reporters typically rely on court records in educating the public and watching over government.  And the common law has long given them a privilege, official report privilege, which protects media news reports that fairly summarize official proceedings.  But if reporters can only access a limited, redacted court file, they will find it more difficult to report fairly and completely.  Their readers, listeners, and viewers will learn less about their government, and their organizations will likely face greater risks in reporting such core governmental news.

Finally, I believe that the statute violates basic constitutional law.  In a series of cases culminating with Press-Enterprise v. Superior Court, 478 U.S. 1 (1986), the U.S Supreme Court has recognized a common law and constitutional right of access to judicial proceedings, based on historical openness and the importance of openness to the democratic process.  Under the Press-Enterprise test, judicial proceedings cannot be closed to the public without specific evidence-based findings that closure is necessary to preserve higher values and is narrowly tailored to serve that interest.  The new Missouri redaction regime closes off from the public important traditionally long-public information, and thus should be subject to this standard. 

It is not clear what will happen as the months unfold.  Many Missouri attorneys, especially those who litigate civil cases, are still not aware of SB 103 and its commands.  Those who are most aware, including prosecutors and public defenders, are already changing their practices, sometimes in ways that further extend the veil of secrecy.  

Ideally the state Supreme Court or the General Assembly will at some point rectify this situation, recalling the insight of the famous one-time St. Louis lawyer Louis Brandeis, that sunlight is the best disinfectant, and official secrecy is detrimental to democracy.  But unless that happens, the education and watchdog functions of journalists in Missouri will be severely hampered.

Mark Sableman is a partner at Thompson Coburn LLP, and a frequent contributor to GJR.