Stealth Statute Requires Redaction of all Witness and Victim Names

This article is based on information available as of October 15, 2023.

As lawyers read new Missouri judicial opinions, they will find that something is missing. There are no names, except for defendants. In court opinions, Missouri has become the State of Unnamed Persons.

The names of witnesses in Missouri court cases have become a state secret. This is so even for the names of public officials, like prosecutors, and other people who expect to be in the public eye, like trial lawyers. Some recent court opinions mention scores of witnesses—but none of them, except the parties, are named.

The same is true of the names of victims. They are secret, and do not appear in court decisions. Yes, this applies even to murder victims, who are deceased and under the common law have no right of privacy, since that right is confined to the living.

This is not a joke or a fantasy. It is really happening. You can see it in Missouri appellate decisions issued in September and October 2023, which (with only a very few exceptions in my research) refer to non-parties variously using status words (e.g., “Victim”), relationships (e.g., “Victim’s sister”; “Girlfriend”; “Uncle”), initials (e.g., “D.V. and E.C”), profession (e.g., “Nurse”), and office (e.g., “[State Attorney]”and “[Trial Counsel]”).

And that’s not all. The same law that appellate courts began following in September would put a veil of secrecy over all witness and victim names in all court pleadings. Yes, under this law, you as a Missouri lawyer, in both civil and criminal cases, must redact from your pleadings all names of witnesses and victims. You must also redact all witness names from exhibits attached to your pleadings.

If you are filing for summary judgment in a complex case, you may want to hire a new legal assistant to take care of redacting all witness names from pleadings and exhibits. And make sure your legal assistant does a good job—if any name goes unredacted, even an identity with no privacy interest, like a custodian of records, you will be responsible under the ethics rules. How did this unprecedented redaction regime come about?

It traces to a recent legislative act, not a court rule. Until now, Supreme Court Operating Rule 2 set forth all the information that could not appear in public court records. Most of those rules, some created by statute and some by rule, related to sensitive criminal, domestic, or juvenile situations.

But in the 2023 legislative session, the General Assembly passed several omnibus bills that included provisions that barred use of witness and victim names in judicial pleadings and orders. These provisions slipped through the lobbyists, news organizations, and public interest groups that try to combat governmental secrecy. One of these bills, Senate Bill 103, became law.

As best as some of us can determine, the provision at issue, a two-page section of the 54-page SB 103, was slipped into the omnibus bill at a committee meeting, several weeks before the end of session, and never directly discussed or debated at committee or on the floor of either chamber. The public record is sparse on who initiated it or why.

What we are left with, then, is the bill itself. It adds language to section 509.520 of Missouri Revised Statutes, requiring the redaction of all witness and victim names from all pleading and orders. It contains an effective date of August 28, 2023, although it also directs the Missouri Supreme Court to create implementing rules. One could argue that the statute doesn’t become effective without implementing rules, but the fact that appellate courts have begun redacting their own September decisions suggests that they at least are treating it as already effective.

This redaction regime seems draconian and severe to me, a media and First Amendment lawyer who has always understood the openness and transparency of the courts as one of the bedrocks of our system.

As counsel to the Missouri Broadcasters Association, as a member of the Missouri Press-Bar Commission, and simply as a lawyer who balks at the aura, burdens, and effects of making long-public court files secret, I’ve taken a close and critical look at this statute. I believe it is legally deficient in several different ways.

First, the statute clearly changes court rules, with the new blanket ban on use of witness or victim names in pleadings and orders. But under the Missouri Constitution (Article 5, section 5), the legislature can annul or amend court rules only “by a law limited to the purpose.” SB 103, an omnibus 54-page bill, was not so limited. And such a drastic intervention by the legislature into court procedures raises separation of powers concerns.

Second, the redaction regime seems wildly overbroad. In contrast to the preexisting specific redaction rules that had been developed over the years, mostly limited to certain criminal, juvenile and domestic situations, this one affects every case, every witness, and every victim. A murder may be front-page news, of great interest to everyone in the community, but the victim’s name will be draped in secrecy in the court file. Witnesses may be public or corporate officials, with important public responsibilities, yet their names will never reach the public court file. In many high profile cases, particularly ones involving police or official misconduct, members of the public and court watchdogs may care about which witnesses are interviewed, called to testify, or shunned. Shielding expert witnesses’ names will make it harder to research and impeach them based on their past conduct.

Third, the redaction regime imposes a heavy administrative burden on lawyers and court personnel, since practically every filing will require redaction, and all redactions will apparently require completion of a Confidential Redacted Information Filing Sheet (CRIFS).

Fourth, under the redaction regime, the public will know less about what the courts do, the media will find it harder to report meaningfully on court cases, and the courts themselves may lose some of the respect and legitimacy that has developed from their historic openness.

Fifth, we are likely to see secrecy expand, like a snowball rolling down a hill. The statute doesn’t bar public officials, like police and prosecutors, from disclosing and discussing witnesses and victims, but as a practical matter, as they see these matters shrouded in the court file, they will probably become less likely to discuss them.

Sixth, media reporting on the courts will be inhibited. The long-established common law official report privilege, recognized in section 611 of the Restatement (Second) of Torts, is the basis for most media reporting on government; it protects media news reports that fairly summarize official proceedings. But if reporters can only access a limited, redacted court file, they will find it more difficult to report fairly and completely. Their readers, listeners, and viewers will learn less about their government, and their organizations will likely face greater risks in reporting such core governmental news.

Seventh, the rule would seem to present many practical problems. How do you subpoena a witness you cannot name? How can an order in limine address testimony of unnamed witnesses? How can parties address motions, or a court address orders, to witnesses or victims who cannot be named? How can the common law system, which depends on facts, work when courts are discouraged from discussing facts in detail? Such questions arise from the blanket nature of the statute, and the fact that it was untested in the legislative process through input from practicing lawyers and the public.

Finally, and most importantly, can the statute survive federal constitutional scrutiny? In a series of cases culminating with Press-Enterprise v. Superior Court, 478 U.S. 1 (1986), the U.S Supreme Court has recognized a common law and constitutional right of access to judicial proceedings, based on historical openness and the importance of openness to the democratic process. Under the Press-Enterprise test, judicial proceedings cannot be closed to the public without specific evidence-based findings that closure is necessary to preserve higher values and is narrowly tailored to serve that interest. The new Missouri redaction regime closes off from the public important traditionally long-public information, and thus should be subject to this standard.

It is not clear what will happen as the months unfold. Most attorneys, especially in civil cases, are not even aware of SB 103 and its commands. Those who are most aware, including prosecutors and public defenders, are already changing their practices, sometimes in ways that further extend the veil of secrecy. As of this writing, in mid October, the Missouri Supreme Court has not addressed the issue, and it could do so in many ways, including finding the statute invalid for any of the reasons discussed above.

For those who believe, like one-time St. Louis lawyer Louis Brandeis, that sunlight is the best disinfectant, and official secrecy is detrimental to democracy, this statute has been a disaster. It took a low-visibility legislative path, and was passed without significant public comment or discussion. It is now being implemented, as seen in recent appellate decisions, without public discussion or, as yet, any judicial rule-making. Yet unless our state Supreme Court takes action or the law is legally challenged, this stealth statute is likely to change the way every lawyer in the state practices, and significantly decrease the transparency of the courts.

Unless lawyers and others speak up, Show-Me State will soon become the Redact-All State.