New York State Office of Court Administration Chief Administrative Judge...

New York State Office of Court Administration Chief Administrative Judge Lawrence Marks testifies during a joint legislative budget hearing on public protection on Feb. 4, 2016, in Albany. Credit: AP / Mike Groll

New York State’s Chief Administrative Judge Lawrence K. Marks has directed county court clerks statewide to flag orders from judges that could lead to civil cases being withheld from public dockets.

The instruction, made in a memo Monday, follows a Newsday report in late February that found the existence of some state court cases had been kept from the public in Nassau County. Maintaining a secret docket runs counter to essential principles of the country’s legal system and has been ruled unconstitutional by federal appellate courts, a point Marks referenced in his memo.

He said the practice “raises significant constitutional concerns over the public’s right of access to court records” and runs “contrary to longstanding court system policy.”

When a court proceeding is begun, it’s assigned a case number, which along with party names is committed to a public docket. Dockets are available at clerk’s offices and online, making scrutiny of courts possible.

Since Newsday’s report last month, the Nassau County Clerk’s Office has placed two cases whose existence had been confidential on the public docket, though the identities of those involved in the proceedings remain unknown. The cases include what appears to be an individual’s name change in 2015 and a 2016 guardianship case. In both name changes and guardianships, confidentiality concerns are often present. The cases now appear on the docket with the parties identified as “ANONYMOUS.”

The two were among nine items Newsday had identified on clerk’s office records as having been removed from the public docket due to “security restrictions.” Chief Deputy Nassau Clerk John Ferretti said last week he is confident that the remaining seven items represented individual filings in the two cases his office put on the public docket, not additional cases that were withheld from the docket. Ferretti said that all cases moving through the state court system in Nassau that should be on the public docket can now be found there.

It’s unclear how the initial secrecy surrounding the cases arose. In recent weeks, a state court system spokesman cited a computer software issue while Ferretti has insisted that judges directed his office to keep index numbers sealed, making it impossible to reference the proceedings on the public docket.

“Seal the names, seal the index, they said that,” Ferretti said of judges’ orders.

Whether judges, record-keepers in the clerk’s office, or software was responsible, the cases were granted a degree of secrecy that higher courts have found unacceptable. The apparent confusion suggests that review of current practices and some education in regard to what’s legal when it comes to court secrecy may be needed, said Daniel Klau, a First Amendment attorney involved in a Connecticut case that resulted in the United States Court of Appeals for the Second Circuit declaring secret dockets unconstitutional in 2004.

In addition to Connecticut, the circuit includes New York and Vermont.

“There is a tremendous amount of ignorance about what the First Amendment requires of courts in terms of sealing,” Klau said.

In comments to a reporter, Marks, the chief administrative judge, said Monday’s memo to clerks was being sent despite there being no indication that cases had been kept from public dockets elsewhere in the state court system.

In addition to county court clerks, the memo was also sent to the state’s administrative judges and other top court personnel.

“If you receive an order that appears to direct or require sealing of a civil index number for any reason,” the memo states, “please bring the matter to the attention of both the judge issuing the order and the Administrative Judge of the Judicial District or Court prior to such sealing.”

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