Broadcasters file complaint to undo law requiring redactions in court documents

The Missouri Broadcasters Association, a Missouri publisher and a pair of appellate lawyers have filed legal action attempting to undo part of a state law requiring the redactions of witness names and other information in court documents.

The plaintiffs allege that the law oversteps constitutional principles and that the state Legislature approved it illegally by adding redacting language to unrelated draft bills.

The lawsuit, citing published reports by one of the plaintiffs, states that Missouri’s new redaction law is broader than any other in the nation, and far more restrictive than what federal courts require.

Broadcasters “lose their ability to fully report on those judicial records; their viewers, listeners, and readers are also harmed because they are not able to learn the full facts about the important governmental business of the judicial system,” the lawsuit states. “The public is irreparably harmed by these severe limitations on the news media’s ability to serve as an effective watchdog over actions in and activities of the judicial system.”

Among the requirements of SB 103, which led to changes in Missouri statute 509.520, are that witnesses and their identifying information must be redacted from court documents. The lawsuit states that the word “witness” is not defined. This means that the names of law enforcement officers, public officials, corporate employees and officers; public and private custodians of records; expert witnesses and many other types of witnesses are no longer known to the public.

Laws allowing for the redactions of certain vulnerable witnesses were already in place in Missouri. The Missouri Supreme Court initiated new rules to require some redactions. Its stated reason was to protect information that could be used by hackers to steal or illegally use someone’s identity.

But those rules were made more restrictive by SB 103.

The redactions go beyond the names of witnesses. In some cases, they’ve also included the names of deceased homicide victims. The redactions also deny the public’s access to where certain crimes happen, including otherwise public establishments where assaults or threats have occurred. Even the gender of a witness is commonly redacted in probable-cause documents.

The Southeast Missourian has noted that the law has been applied unevenly across jurisdictions. Some local jurisdictions redact the names of law enforcement officers and locations, while others do not. The responsibility of redaction lies with the attorneys filing the documents. Concerning criminal news, the redactions are left primarily to the discretion of prosecutors and defense attorneys.

The Legislature did not pass a Republican-backed bill aiming to amend the state law this year, according to information from the Missouri Press Association. The Missouri Supreme Court helped draft the legislation but the measure died in the Senate.

Dan Curry, a lawyer representing the Missouri Press Association, said the MPA is evaluating whether to join or contribute to the Missouri Broadcasters’ lawsuit in an official capacity. He said the MPA helped in drafting aspects of the Missouri Broadcasters’ lawsuit as it relates to the open courts argument under the Missouri Constitution.

“As things currently stand, these mandatory redaction rules —and the related elevation of security settings on Case.net — are hamstringing newsgathering efforts,” Curry said. “Legislative efforts to fix this redaction problem regrettably stalled out this year. ... In a nutshell, the Missouri Constitution requires that courts be public and open, and that means that Court records should also be presumptively open. This redaction law violates that principle.”

The lawsuit claims that lawmakers violated the law by packing the redaction provisions into a bill prefiled by Sen. Sandy Crawford. The bill’s title stated its purpose “to repeal Section 476.055 RSMo” to add a section “relating to court automation”. The original version of the bill made four minor changes to 476.055. SB 103 was first read into the Missouri Senate on Jan. 3, 2023, the lawsuit states. In February 2023, the Senate added two amendments to a separate law regulating the salaries for court reporters and the collection of a surcharge on petitions for expungement requests. Then, on May 3, 2023, “SB 103 was subjected to a barrage of amendments, which swelled the bill to 54 pages,” the lawsuit states. The bill was passed in the House on the same day. Six days later, the Senate passed the bill.

The lawsuit cites Article III of the Missouri Constitution that “no bill shall be so amended in its passage through either house as to change its original purpose.” It also states that “no bill shall contain more than one subject which shall be clearly expressed in its title.”

According to an article written by William H. Freivogel, a plaintiff in the case, and Ted Gest in Gateway Journalism Review, the redaction requirements were supported by Republican state Rep. Justin Hicks of Lake St. Louis. The Review reported that Hicks was upset that his Republican primary opponent had posted a 2010 restraining order by a woman who said he choked her when he was 17 years old.

The lawsuit says the redaction requirement is harmful to criminal defendants, who must pay extra money to redact all names and identifying information.

The plaintiffs in the lawsuit are the Missouri Broadcasters Association; Michael L. Gross, an appellate lawyer who writes briefs and argues cases in federal and state appellate courts; Nina McDonnell, an attorney who focuses on criminal and civil appeals; and William H. Freivogel, the publisher of Gateway Journalism Review and professor at Southern Illinois University.