Judicial Conference Approves Standards & Procedures for Sealing Civil Cases

At its September meeting, the Judicial Conference adopted a national policy that encourages federal courts to limit those instances in which they seal entire civil case files.

The policy emphasizes that “an entire civil case file should only be sealed when . . . sealing . . . is required by statute or rule or justified by a showing of extraordinary circumstances and the absence of narrower feasible and effective alternatives, such as sealing discrete documents or redacting information, so that sealing an entire case file is a last resort.”

Any order sealing an entire civil case should contain findings justifying the sealing, and the seal should be lifted when the reason for sealing has ended, the policy says. The Conference also endorsed modifying the Judiciary’s Case Management/Electronic Case Files system to include a mechanism “that would remind judges to review cases under seal annually.”

In separate action, the Conference responded to inflationary pressures by increasing, effective November 1, certain miscellaneous fees for federal courts. The newly approved court fee schedule, the first inflationary increase in eight years, is expected to result in an estimated $10.5 million in additional fee revenue for fiscal year 2012. Fees in appeals, district, and bankruptcy courts are affected. The income the Judiciary receives through miscellaneous fees allows it to reduce its annual appropriations request to Congress.

The Conference also authorized an increase in the Judiciary’s electronic public access fee in response to increasing costs for maintaining and enhancing the electronic public access system. The increase in the electronic public access (EPA) fee, from $.08 to $.10 per page, is needed to continue to support and improve the Public Access to Court Electronic Records (PACER) system, and to develop and implement the next generation of the Judiciary’s Case Management/Electronic Case Filing system.

The EPA fee has not been increased since 2005. As mandated by Congress, the EPA program is funded entirely through user fees set by the Conference. Implementation of the two-cent per page increase will take a minimum of
six months.

The Conference was mindful of the impact such an increase could have on other public entities and on public users accessing the system to obtain information on a particular case. For this reason, local, state, and federal government agencies will be exempted from the increase for three years. Moreover, PACER users who do not accrue charges of more than $15 in a quarterly billing cycle would not be charged a fee. (The current exemption is $10 per quarter.) The expanded exemption means that 75 to 80 percent of all users will still pay no fees.

At its September session, the Judicial Conference also adopted a courtroom sharing policy for bankruptcy judges in new courthouse and courtroom construction. In court facilities with three or more bankruptcy judges, one courtroom will be provided for every two bankruptcy judges. In those facilities with an odd number of bankruptcy judges, the number of courtrooms allotted will remain at the next lower whole number. (The Conference in 2008 adopted a courtroom sharing policy for senior district judges in new construction, and in 2009, adopted a courtroom sharing policy for magistrate judges in new construction.)

The Conference also was briefed on the current budget situation facing the federal courts. To date, the only action by Congress on the Judiciary’s fiscal year 2012 budget is a bill approved by the House Appropriations Committee on June 23, 2011. The proposed funding levels in this bill, if enacted, would result in the loss of thousands of clerk’s office staff and probation officers and would have a significant negative impact on court operations. The Conference is hopeful that final action by the Congress will result in a more favorable budget for the Judiciary.