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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.
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