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"...studies in recent years have shown that judges improperly issued hundreds of orders in lawsuits against companies in which they owned stock."
Evading Judicial Scrutiny

Federal judges, like members of Congress and other top administration officials, are required to file annual financial disclosure reports.  However, unlike other government officials, judges may shield portions of their reports from public view on grounds that such disclosures might endanger them.  This special exemption for judges appears to defeat the purpose of public disclosure and is the subject of an article by Washington Post Staff Writer Joe Stephens, published August 5, 2004.

U.S. Judges Getting Disclosure Data Deleted
GAO Cites 661 Requests to Withhold Information From Ethics Act
August 5, 2004

Nearly 600 times in recent years, a judicial committee acting in private has stripped information from reports intended to alert the public to conflicts of interest involving federal judges.

The committee decided that the information removed might tend to endanger a particular judge or put his or her financial investments at risk, according to a study by the Government Accountability Office (GAO), the investigative arm of Congress.

In 55 instances, the committee withheld all information on the disclosure reports — including details about outside income, gifts, business contracts, debts, stocks and the value of holdings. The study examined disclosure reports filed under the Ethics in Government Act from 1999 through 2002.

Specialists in judicial ethics said they were startled at the breadth of the excisions — and particularly that the material cut included financial information that appeared to present little safety risk.

"I just can't imagine why it would be necessary to redact all of the information," said Steven Lubet, a law professor at Northwestern University in Chicago and co-author of a book on judicial ethics. "I can't even guess what would be the justification."

Jeffrey Shaman, a legal ethicist at DePaul University, agreed that it would be difficult to defend all the redactions on security grounds. "It surprises me the numbers are so high," he said. "The purpose of financial disclosure is to ensure the judge doesn't have a financial conflict of interest... It makes one wonder if the real reason for a judge to request the redaction is to prevent the public from learning embarrassing information."

The GAO report did not identify the judges who sought deletions.

The Ethics in Government Act requires that judges, members of Congress and senior executive branch officials file annual reports detailing positions held, businesses owned, income, free trips and debts. Watchdog organizations and the media use the reports to unearth conflicts of interest.

In the case of the judiciary, studies in recent years have shown that judges improperly issued hundreds of orders in lawsuits against companies in which they owned stock. At least one judge threw out lawsuits against a medical center on whose board he sat. Activists and reporters also used the reports to identify judges who traveled at no cost to them to resort locations to attend seminars hosted by interest groups.

Such revelations have led to requests for new trials or for judges to recuse themselves. Some groups began posting portions of the disclosure reports on the Internet.

In 1998, Congress passed legislation allowing judges to request redactions. The law authorized the U.S. Judicial Conference, in consultation with the U.S. Marshals Service, to delete specific information if it determined that the information could endanger a judge. The Judicial Conference is the principal policymaking body for the federal courts, and is chaired by Chief Justice William H. Rehnquist. The redaction provision is in place through 2005, when Congress will decide whether to make it permanent.

There are no similar provisions available for the president or members of Congress, whose reports are immediately available to the public on the Internet, in print and through computer terminals in the Cannon House Office Building. Officials of those branches do not consider the information a safety risk, the GAO report said. There is no known case in which the reports have been used to harm a judge or another public figure.

In 2002, 76 requesters received disclosure reports from the judiciary. Lawyers and plaintiffs have said they are reluctant to seek them because judges are supplied with the names of the requesters before documents are released.

The judges' reports are available to the public only on paper and only after lengthy delays. In 2002, the average delay was 90 days. Requesters interviewed by the GAO "each expressed frustration at how long it took," the study said.

Lubet called the delays "way too long," saying: "The information is either public or it isn't." Shaman described the slow responses as "terrible."

Douglas T. Kendall, executive director of Community Rights Counsel, a Washington-based advocacy group, said: "What takes minutes for other branches of the government takes months for the judiciary. The entire process seems designed to frustrate rather than facilitate public access... Anyone with access to Google can easily obtain more information about most judges than these forms reveal." In response to requests from the judiciary and the Marshals Service, the GAO said it is deviating from standard practice and making its study available only on specific request, because its findings are "sensitive." In a letter attached to the study, Marshals Service Director Benigno G. Reyna asked that it "not be made available to the general public via the Internet."

The GAO study found that during the four years examined, there were 661 redaction requests and they came from "about 10 percent or less" of the more than 2,000 judges who filed disclosure reports.

The Judicial Conference granted nearly 90 percent of the requests, or 592 deletions. The Judicial Conference's guidelines call for removing information that would identify "unsecured locations" of judges and their families, as well as "information that bears a clear nexus with specific security threats." A GAO review of material removed from the reports showed the conference "has generally applied these principles consistently," the report said.

Over the period studied, the report said, 28 judges made 63 requests to censor their entire financial disclosure report. The conference granted 55 of those requests, or 87 percent. In those cases, only the name of the judge was released. On reports examined by The Washington Post, even the judges' signatures were deleted.

One request came from a judge who said she and her husband "had received death threats and were the subject of protective investigations," the report said.

Judges made 278 requests to delete the name of the employer of a spouse; each was granted. The GAO study pointed out that this was done "regardless of whether current, specific security threats existed."

Of the 171 requests to redact the value of assets and related income, the conference agreed to nearly half, or 83 redactions.

One request came from a judge who said criminal defendants had filed false liens against him, the study said. Another was from a judge who argued that "reporting the value of income and assets made him an easy target for extortion."

The conference agreed to delete the names of one judge's family partnerships, the study said, because he argued someone could use the information to find addresses and phone numbers, which "might jeopardize his family's security," the study said.

The conference agreed in 14 cases to remove information about gifts to judges, including the names of the individuals and organizations that supplied them. One gift was a scholarship given to a judge's son, where the judge wanted to conceal the "unsecured location" of the university his son attended.

Copyright 2004, The Washington Post Company

From: Joe Stephens, "U.S. Judges Getting Disclosure Data Deleted; GAO Cites 661 Requests to Withhold Information From Ethics Act," The Washington Post, August 5, 2004, p. A-4.  Joe Stephens previously reported for The Kansas City Star (see: http://www.kcstar.com/judges).  Reprinted in accordance with the "fair use" provision of Title 17 U.S.C. § 107 for a non-profit educational purpose.









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