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Published: Monday, 12/29/2008

Chipping at openness

New rules adopted by the Ohio Supreme Court open the door to the possibility of records being closed just because a judge says so

BECAUSE freedom is endangered whenever the public's right to know is restricted, the Ohio Supreme Court erred when it put its stamp of approval on rules limiting what court records the public has the right to see.

The new rules, the result of a five-year process undertaken by a court-appointed committee chaired by Justice Judith Lanzinger of Toledo, open the door for future courts to expand the definition of what sort of records the public ought not to have access to.

While the policy statement begins with the assumption that court records are open, the actual impact of the new rules is to provide a mechanism by which records in the future could be closed just because a judge says so.

"The court assumes it has the authority to adopt these rules and amend them later to identify a record solely on its content that should automatically be kept out of the public domain even if no litigant in a case asks that the record be closed," Cleveland media lawyer David Marburger said.

This is an unprecedented and dangerous development.

Particularly troubling is the provision that allows not only the parties to a case by any "other person who is the subject of information in a case document" to request that the record of the case be closed.

Freedom is seldom lost all at once. More often, it is eroded bit by bit under the guise of protecting some vague "higher interest." That rationale, used to great effect by the Bush Administration in its assault on individual rights since Sept. 11, 2001, is evident in the court's new rules, which make the public's right to know take a back seat to that same, nebulous "higher interest."

But the justices, who voted 6-1 in favor of the rules with Justice Paul Pfeifer dissenting because he, amazingly, did not think the rules went far enough, apparently don't get it.

The out-of-touch court, in a remarkable display of judicial arrogance, through a spokesman cavalierly dismissed the public's legitimate concern over the chipping away of the its right to know as "an argument that the sky is falling."

There was sense in the committee's original purpose: to shield personal data in court records such as Social Security, credit card, and bank account numbers from identity theft and to safeguard details about domestic violence from those who would harm them.

What the court has approved, however, goes well beyond those legitimate concerns.

A shadow that could easily become a veil of secrecy has fallen over Ohio's courts, and the public is the ultimate loser.

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