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Wednesday, June 21, 2017

Federal Judiciary to Limit PACER Access?

Should some PACER filings be blocked to ensure the safety of witnesses and informants? Possibly, according to a recently published a survey of federal judges, prosecutors, defenders and probation officers by the Federal Judicial Center.

Originally reported in The Wall Street Journal (subscription required/ available via Lexis Advance), recent survey (PDF) of federal judges, prosecutors, defenders and probation offices by the Federal Judicial Center found that nearly 700 witnesses and informants perceived as snitches had been threatened, wounded or killed over a three year period. According to the Wall Street Journal article,

"Federal inmates are restricted from accessing PACER themselves, but it is easy for them to ask people outside the prison to search the online system and report the information back into the prison by phone, according to judges." Inmates are becoming more sophisticated at decoding available criminal findings within the case filings, leading to a substantial threat to these so-called snitches.

In the survey, with nearly 1,000 respondents, "[r]espondents frequently reported court documents or court proceedings as the source for identifying cooperators." Plea agreements and other identifying documents are not considered prison contraband, and may even be posted on cell walls for other inmates to view.

Survey responses encouraged action by the Department of Justice to mitigate this threat to those cooperating with law enforcement, but no specific action has been taken to limit PACER access to the public in criminal cases. Some respondents also encouraged placing more sensitive documents under seal. Both of these possibilities are viewed by some defense attorneys as detrimental to their defendant-clients cases. In addition, any limitation of public access to these filings raise First Amendment concerns about access to government documents.

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