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Federal Courts Urged to Protect Cooperating Defendants

A committee of the policy-making Judicial Conference of the United States is asking district courts to consider adopting a local policy that protects information about cooperation in law enforcement investigations.

But the committee is also urging those courts to recognize the need to preserve legitimate public access to court files.

For the past year, the Conference's Committee on Court Administration and Case Management (CACM) has been considering the implications of web sites that attempt to identify undercover officers, informants, and defendants who provide information to law enforcement authorities.

In December 2006, the Department of Justice proposed a change in Judicial Conference policy to facilitate the elimination of Internet access, through the Judiciary's PACER system, to all plea agreements.

The CACM Commitee then solicited and received public comment on the suggestion to remove plea agreements from PACER. It deliberated about the Justice Department proposal and the public comment received.

The Committee determined that prohibiting public Internet access to all plea agreements, most of which do not disclose a defendant's cooperation, while simultaneously leaving all plea agreements available to the public in clerk's offices is an inadequate solution. The Committee declined to endorse the Justice Department proposal.

The committee noted that several district courts have developed solutions that work locally but, given the variations in circuit case law, would not be appropriate as a national policy. Instead of recommending that the Judicial Conference adopt a national policy, the Committee decided to refer the matter directly to each district court.

In communicating with the district courts, the Committee listed the various suggestions received, from inside and outside the Judiciary, during the public comment period.