GAO REPORT

Investigative Reporters and Editors, Inc. The IRE Journal, Nov/Dec 2004 by Stephens, Joe

Stripping information from disclosure reports threatens investigations of judicial misconduct

Dozens of federal judges have taken free trips to luxury resorts to attend seminars. Special interest groups picked up the cost.

Other federal judges have a history of throwing out lawsuits filed against companies in which they have invested. One judge dismissed two lawsuits filed against a hospital on whose board he sat.

All these conflicts of interest came to light through the use of what has become one of journalism's best friends: personal financial disclosure reports filed by federal officials.

Now, that tool is at risk.

Nearly 600 times in recent years, a judicial committee acting in secret has stripped information from the disclosure reports filed by federal judges. The committee decided that the information might be used to harm a particular judge, according to a study by the Government Accountability Office, the investigative arm of Congress. The study examined disclosure reports filed under the Ethics in Government Act from 1999 through 2002.

In 55 cases, the committee blacked out all information on the disclosure reports - including any details about free trips, stock holdings, board memberships, outside income, debts and gifts.

I am among the many reporters who have made use of the reports over the years. In 1998, while working at The Kansas City Star, I wrote a series showing that federal judges across the country had issued hundreds of court orders in lawsuits in which they owned stock in one of the litigants. They set hearings, granted motions, threw out legal claims, and even conducted a jury trial. That's against the law.

The series showed how the judicial conference made it a laborious, time-consuming process to obtain the reports. It also told how the conference supplied each requester's name to the affected judges before releasing anything.

To help rectify the problem, the Star posted the reports for more than two dozen federal judges on the newspaper's Web site, for anyone to see - the first time that had been done. The series became the locus of a congressional hearing, and prompted calls for reform from some members of Congress and from many judges. But it also was followed by something less foreseeable.

A few months after the series, with no public discussion, some members of Congress added a few additional lines to a larger bill, in a quiet move that escaped notice by open-records advocates.

The law authorized the U.S. Judicial Conference to delete specific information from the disclosure reports if the conference determined the information could endanger a judge. The Judicial Conference is the 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.

In August, the GAO issued a report providing the first glimpse into how the law was working. The judiciary asked the GAO not to post the report on its Web site, and the GAO complied, agreeing that its findings were "sensitive."

(In a letter attached to the study, Marshals Service Director Benigno G. Reyna asked that the study "not be made available to the general public via the Internet." However, the GAO press office will e-mail you a copy on request.)

Makes one wonder

When I called judicial ethicists to tell them what the GAO had found, 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, said 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."

There are no similar laws allowing redactions by the president or members of Congress, whose reports are available to the public on demand in published reports and through computer terminals on Capitol Hill. Officials of those branches do not consider the information a safety risk.

In fact, there is no known case in which the reports have been used to harm a judge or another public figure.

In 2002, only 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 wait was 90 days. Every requester interviewed by the GAO expressed frustration at how long it took.