December: Signed, sealed, delivered–but not yours

2008 Columns

“Case closed.” These are words you expect to hear when a court case is completed-the defendant has been found guilty or innocent, the parties have settled, or the case is dismissed.

But “case closed” may have another meaning in Wisconsin. Currently, dozens of ongoing cases in Wisconsin are fully or partially sealed from public view, unavailable even on the courts’ online Wisconsin Circuit Court Access (WCCA).

Sealing court cases and documents should be an exception to the rule. In 2006, the WCCA advisory committee found that while a circuit court judge has power to seal a case, the judge must first determine that the reasons for closure outweigh the public’s right to know.

“Given the strong state policy favoring openness,” the committee stated, “documents or cases are only rarely sealed.”

A few court cases or documents may be legitimately closed to protect the identities of people wrongly named in a court action. Such cases might include identity theft – such as when a person is pulled over for speeding and gives police someone else’s name, says Bill Lueders, news editor of Isthmus and president of the Wisconsin Freedom of Information Council.

Similarly, Lueders suggests, seals might apply in cases concerning juveniles charged as adults who later win motions to waive their cases back to juvenile court.

But a recent case in Dodge County illustrates that the usual policy against sealing may not be uniformly applied. In October 2008, the Wisconsin State Journal’s George Hesselberg reported that a state prisoner and prison guard who were allegedly involved in a fight saw different treatment of their charges on WCCA. The prisoner’s charge, eventually dismissed, is on WCCA. The guard’s charge, also dismissed, is not.

The reason for sealing the guard’s record, according to his attorney, was that prison guards are “vulnerable to specious accusations [by inmates] under current law.” These accusations can then harm reputations and employment careers.

But as Hesselberg pointed out, there was no evidence that the inmate’s accusations were specious in that case. Even if they were, he continued, the reasons for sealing the record don’t appear sufficient given the usual rule of openness.

Records in civil case may be sealed for even more dubious reasons. In one recent case in Columbia County, two business partners attempted to seal court records concerning a legal dispute between them. The partners were involved in a controversial development project in the Wisconsin Dells opposed by many community members. Project opponents argued that if the principals in such a controversial project were feuding, the public has a right to know. (Full disclosure: I represented the project opponents.)

A judge ordered the records unsealed, stating, “[w]hile this does involve an intra-company dispute, the parties have chosen to seek resolution of their dispute in the courts thus potentially disclosing their dispute to the public. They certainly have information that they may wish to keep from public view, however, they have not shown a sufficient basis to overcome the policy of public access to court records.”

Here lies the rub: When a case is wrongly sealed, it may be impossible for the public to get review of this decision. Sealing, by its nature, conceals everything about the case from public view except for the name of the judge who ordered the case sealed. Thus, the public may never know about a case even if it implicates the public interest.

A clearer policy from the Wisconsin Legislature or Supreme Court, or better awareness of the current policy, might help judges avoid unnecessary sealing.

Until such a policy emerges, however, you can use at least two ways to muddle through:

— Learn about sealed cases by typing “sealed*” into the business name field on the WCCA search form. WCCA should then produce a list of at least some sealed cases.

— Enter a party name into the WCCA search form. If the party is involved in a sealed case, at least that bare fact may emerge from the search.

The best option, of course, is for cases not to be sealed at all — or at least sealed only partially, in very rare cases when private interests trump the public’s right to know.

Christa Westerberg, an attorney at Garvey McNeil & McGillivray, S.C., in Madison, Wis., is vice president of the Wisconsin Freedom of Information Council (, a nonprofit group dedicated to open government. Your Right to Know is a monthly column distributed by the FOIC.