Early last fall APBnews.com, a "crime, justice and safety" news site, applied for copies of the financial disclosure forms that federal judges must file each year. As its lawyer indicated to the Administrative Office of U.S. Courts, APBnews planned to publish the documents online to give the public easy access to them. But a 15-member committee representing the nation's 1,600 federal judges quickly responded -- by blocking the release of the forms, on the grounds that making them available on the Net represented a security threat.
Federal judges have been threatened by angry members of the public in the past. Three were even murdered in years past (but not since 1989). So, at first glance, it might sound reasonable that judges should be concerned about making their personal information widely available.
No way, say First Amendment proponents like APBnews senior editor Bob Port. "A committee of judges ... has said, in effect, you can have our financial disclosures unless you intend to publish them on the Internet -- then, you can't have them," he says. "That's unconstitutional, plain and simple. It violates the First Amendment, which guarantees freedom of the press, and it violates the Fifth Amendment, which guarantees equal protection under the law."
It does seem odd that the judiciary can keep supposedly public records from being made public. And some opponents of the judges' block say the security argument doesn't make sense, since the forms don't require the disclosure of any identifying information -- like a home address or Social Security number. (A sample disclosure form is posted on the APBnews site.) Besides, they say, an attack or threat made on a judge's life has never been linked to information found on a disclosure form.
But there is evidence that judges have ruled in cases concerning companies in which they own stock or in which their financial interests may have been at stake in other ways. "Federal judges [in Kansas City] and elsewhere repeatedly have presided over lawsuits against companies in which they own stock," Joe Stephens reported in a 1998 Kansas City Star series. "That's not supposed to happen. U.S. law requires judges to withdraw from any lawsuit in which they know they have a financial interest, however small. So does the judicial Code of Conduct."
So, are the judges who are trying to block the dissemination of these forms trying to protect themselves from physical attack -- or to protect their assets from prying eyes? Either way, the crazy thing about this legal battle between APBnews and the judges is that the information in question is already publicly available -- by written request. The thing the judges are resisting is putting it online, where anyone can poke through it without going through the bureaucratic hassle of making a written request.
APBnews thinks it -- and the public it serves -- has a legal right to the forms; the company filed a lawsuit to get them in December. "This is a fight to gain access to public records for all Internet users," Mark Sauter, chief operating officer of APB Online Inc., APBnews' parent company, told reporters shortly after his company filed the lawsuit. "The Internet is not just a legitimate but a superior means to disseminate these documents to the public," he continued. The case is working its way through the court, with a scheduling conference set for March 3.
The wrangling began in Sept. 1999 when Michael Ravnitzky, APBnews' in-house counsel, requested the forms from the Administrative Office of U.S. Courts (AOUSC), by making the requisite written application. During subsequent discussions with AOUSC, he informed the office of APBnews' intention to publish the documents online.
In early December 1999, after the AOUSC had prepared about two-thirds of the copies, Federal District Judge William J. Zloch of Fort Lauderdale, Fla., had the transfer temporarily halted, based on a 1998 amendment to the Ethics in Government Act of 1978. The amendment gives the judiciary the right to pause the release of records if legitimate security concerns arise.
A 15-member group, headed by Zloch and made up of members of the Judicial Conference's Committee on Financial Disclosure subsequently decided, on Dec. 10, not to release the papers to APBnews at all, citing concern about security problems that widespread access to the forms might create.
In a related announcement, the committee implied that if the public could simply turn to the Internet to find the documents, the written request required to obtain them would be rendered unnecessary. This would remove a measure of protection from the judges, since the written application acts as a filter, allowing the judiciary to monitor who's requesting the forms.
Similarly, the judges stated that posting the documents online would make it virtually impossible to enforce the Identity Theft and Assumption Deterrence Act, which allows judges to withdraw information from the forms if the U.S. Marshal's office agrees there is a potential danger related to a request. Judges can edit out certain information from their form -- like the address of a vacation home -- if a particular requester arouses a security concern. But the Act does not allow them to deny a form's release in toto. APBnews says it had agreed to redact some information from a few forms for security reasons while in discussions with George Reynolds, staff counsel for the AOUSC.
The judges' decision to block the release of the forms now has a lot of people up in arms. Susan Dryden, a spokeswoman for Rep. Bill McCollum, R-Fla., who authored the 1998 amendment, says the amendment to the Ethics in Government Act was enacted in an effort to protect judges' safety. However, the decision to block the forms from Internet publication "went far beyond the scope of what the law intended to do," she declares.
"If a litigant tried to take the kind of twisted technical argument the judges are using to the courtroom ... the judges would laugh the person out," says Bruce Brown, a lawyer for the Washington firm Baker & Hostetler, which works on First Amendment cases for the Society of Professional Journalists (which has condemned the block), and other media groups. "Congress passed this legislation because they wanted [the disclosure forms] to be available to the public," he continues.
Indeed, the House Judiciary Committee's Subcommittee on Courts and Intellectual Property plans to hold hearings, not yet scheduled, to review the committee's block.
Rep. Howard Coble, R-N.C., chairs that subcommittee as well as one that oversees the federal courts. "I'm inclined to disagree with those who contend [the forms] should not be made available on the Internet," he says. "I think it would be another step towards gaining confidence in elected officials among the public at large." Coble also pointed out that disclosure forms filed by various congressional members have been made available online without creating any security problems. It's his plan to voluntarily put his own financial disclosure forms online the next time he files them, in May.
On the other hand, Karen Redmond, a spokeswoman for the AOUSC, believes the judges' concern is legitimate. After all, judges and their families are often threatened, she says. But have any of those deaths or threats been linked to financial disclosure forms? Redmond could not provide any concrete examples. Indeed, there seems to be a dearth of evidence linking the forms to any problems for the judges.
Brown, for one, believes the potential danger to judges is not significant enough to warrant the block. "This doesn't seem to be the kind of issue where security can't adequately be handled," he says. Add this to the fact that the documents are public records, and the judges are public servants, and the case seems strong that the committee overstepped its bounds with the block.
But its argument -- that the Internet will make public records more public than the judges might like -- is nothing new.
While working on his series for the Star, Stephens, who is now a reporter at the Washington Post, obtained financial disclosure forms for a number of federal judges. After he had them, Stephens called the judges involved to tell them the Star planned to make the forms available online. Many argued vociferously against the idea.
"Someone actually told me that if we posted those forms on the Web site we would have the blood of the federal judges on our hands," Stephens recalls. "When they were trying to tell us not to put them up, they kept giving us statistics [on violence against judges]. But they never found a way to connect those problems to, for example, how many shares of IBM a judge owns," he observes.
Unlike APBnews, the Star already had the documents in hand before announcing its intentions to post them. So, there wasn't much the judges, without a convincing argument, could do to prevent their publication.
The Star "did not tell us they were going to publish them [at the time of their request], which of course raises the question: If APBnews hadn't told us, would we have released them? And boy, I just don't want to speculate on that," says the AOUSC's Redmond.
The fact is that in pre-Internet times the AOUSC could make decisions about disseminating information from "public records" on a case by case basis. But the nature of the Net is forcing a new kind of decision to be made: When Congress decided to make these records public, just how public did it have in mind?
"To say the information [in the APBnews case] should just be taken off the Internet is blaming the messenger," says Ari Schwartz, a policy analyst at the Center for Democracy and Technology, which has put together a top 10 list of government documents that the public wants posted online. "The real question is whether it should be publicly available at all, or if it should be made as widely available as possible."
"Perhaps in certain cases we do need a re-examination of what is public and what is not public," says Schwarz. And the case of the financial disclosure forms may force us to do just that.