In Re Access to Certain Records of Rhode Island Advisory Committee on the Code of Judicial Conduct

637 A.2d 1063, 22 Media L. Rep. (BNA) 1523, 1994 R.I. LEXIS 74, 1994 WL 68786

• Court: Supreme Court of Rhode Island
• Decided: March 8, 1994
• Docket: 93-370-M.P.
• Status: Published

Opinions

OPINION

MURRAY, Justice.

This case came before this court pursuant to a petition filed by the Providence Journal Company (the Journal) for access to an advisory opinion issued by the Rhode Island Advisory Committee on the Canons of Judicial Ethics (committee). This committee was renamed the Rhode Island Advisory Committee on the Code of Judicial Conduct when the court adopted a new code on March 8, 1993. The Journal also seeks such documents as requests or exhibits upon which the advisory opinion was premised. We grant the request in part and deny it in part.

The original provision creating the Rhode Island Advisory Committee on the Canons of Judicial Ethics was established pursuant to Judicial Canon 31(D) of former Supreme Court Rule 48. Subsequently the Supreme Court adopted the Code of Judicial Conduct, which replaced the Canons of Judicial Ethics. The Rhode Island Code of Judicial Conduct was based upon the Model Code promulgated by the American Bar Association in 1990. In adopting the new code, this court continued to provide for an advisory committee on the Code of Judicial Conduct without significant change in its function. The present code provision reads as follows:

Advisory Committee on the Code of Judicial Conduct

“In order to assist judges in complying with the foregoing canons, an advisory committee has been appointed by the Supreme Court with authority to interpret the canons and to provide an opinion upon the request of any judge concerning a proposed action and its propriety in the light of said canons. The advisory committee consists of five (5) members of the judiciary, not more than two of whom may be from the same court. The advisory committee will give the inquiring judge an opinion in respect to the propriety or impropriety of the judge’s proposed action. An opinion from the advisory committee that it is proper for the judge to take certain action will give rise to a conclusive presumption that the judge has acted properly. Any judge ivho acts in accordance with an opinion given by the advisory committee shall be presumed to have abided by the Canons of The Code of Judicial Conduct. ” (Emphasis added.) Rhode Island Supreme Court Rules Article VI.

The committee was designed to provide a vehicle by which Rhode Island judges could obtain authoritative interpretations of the Canons of Ethics or the Code of Judicial Conduct concerning the propriety of their actions. A judge who seeks a eonclusory opinion from the committee and follows that opinion is presumed to have abided by the Code of Judicial Conduct. The committee has not, to this point, published its opinions. Since the rule contains no specific provision concerning confidentiality, this opinion will set important precedent. At this point it will be the only precedent upon which future conduct of the committee will be based.

The Journal has requested a copy of an advisory opinion issued to Justice Antonio Almeida (Almeida), a former member of the Superior Court, together with Almeida’s request for the opinion and any supporting documentation. The substance of the Journal’s request and its brief suggests that the Journal has obtained information concerning the nature of Almeida’s request. The Journal contends that since Almeida is no longer a member of the Superior Court, he has no further interest, in terms of either reputation or privacy, in the advisory opinion. Therefore, the Journal contends, the advisory opinion should be released, along with all other accompanying correspondence and documents, pursuant either to a common-law right to inspect and copy judicial documents or under the Access to Public Records Act (APRA), G.L. 1956 (1990 Reenactment) chapter 2 of title 38.

The members of the committee and the Rhode Island Trial Judges Association have expressed opposition to the release of advisory opinions or supporting materials. The committee’s position is set forth in a letter memorandum written by one of its members and endorsed by all other members.

“I do not believe that opinions by the Advisory Committee should be made public. Even if opinions are issued in a sanitized form it will be very easy to identify the judge concerned. It is crucial to the effectiveness of this committee, that judges feel free to seek counsel and guidance without fear of disclosure. Failure to guarantee such privacy will be counterproductive. It will have a chilling effect on judges’ use of the committee and will be a disservice to both the bench and the public it serves.”

The committee suggests that the purpose of the rule establishing it, and authorizing it to render opinions constituting a “safe harbor” for the judge who abides by the opinion, is to encourage judges to seek guidance from the committee. The committee suggests that there are often complex situations in which the application of the Canons of Ethics or of the present Code of Judicial Conduct may not be clear. The committee avers that publication of the request or the advisory opinion will deter judges from seeking advice. Consequently the committee contends that the purpose of the rule would be frustrated, if not entirely eroded.

The Rhode Island Bar Association (Bar Association), has submitted a brief as amicus curiae. The Bar Association’s brief recommends that the committee publish its opinions, as long as the inquiring judge or other parties involved in either the request or the opinion remain anonymous. In view of the fact that the committee has not published any of its opinions, the Bar Association suggests that prior advisory opinions be published in a redacted form. This would eliminate any identifying information, thus preserving the anonymity of all the parties involved.

The Bar Association recommends that this court be guided by a rule adopted by the Ethics Advisory Panel (panel), which was established by Article V, Rule 9.1 of the Supreme Court Rules of Professional Conduct. The panel was established to provide guidance to members of the bar who seek interpretation of the Rules of Professional Conduct. Those rules govern the obligations and responsibilities of attorneys. Unlike the committee the panel adopted a rule that addresses the issue of confidentiality. Rule 6 of the Rules of the Ethics Advisory Panel provides:

“The name and letter of an inquiring attorney, the Panel’s proceedings considering requests for advice and the advisory opinion letter to the inquiring attorney shall be confidential. The advisory opinion and the facts (excluding the identity of parties) on which it is based shall not be kept confidential but shall be proper subjects for publication.”

The Bar Association contends that the committee, although it has not promulgated a written rule, has in practice accorded complete confidentiality to the entire advisory opinion process. It suggests that this unwritten “rule” of confidentiality for prior advisory opinions is entitled to substantial deference. See Citizens Savings Bank v. Bell, 605 F.Supp. 1033 (D.R.I.1985); Lerner v. Gill, 463 A.2d 1352 (R.I.1983).

The Journal argues that in the absence of an explicit rule requiring confidentiality, the committee’s opinions are public documents under APRA and are not excluded by the exemption contained in § 38-2-2(d)(20). Section 38 — 2—2 (d) (20) excludes records of judicial bodies from the definition of public documents except records produced by those bodies in their administrative function. The Journal argues that the term “administrative,” though not defined in APRA, refers to the exercise of executive authority. The Journal avers that the committee, in furthering the function of the Supreme Court in its disciplinary role, is exercising an administrative function.

The Bar Association counters by contending that the committee performs a judicial function “in its role as arbiter of the ethical propriety of a judge’s anticipated conduct.” The Bar Association further contends that the extent of the right to the disclosure of judicial acts is not unlimited. See Nixon v. Warner Communications, Inc., 435 U.S. 589, 598-99, 98 S.Ct. 1306, 1312, 55 L.Ed.2d 570, 580-81 (1978). It further asserts that privacy interests not only may outweigh the public’s right to know but may in an appropriate case also outweigh even a constitutional right of access. See Press-Enterprise Co. v. Superior Court of California, 464 U.S. 501, 104 S.Ct. 819, 78 L.Ed.2d 629 (1984); In re The Knoxville News-Sentinel Co., 723 F.2d 470 (6th Cir.1983).

The Journal and the Bar Association cite statutes and/or rules of other states in respect to disclosure or nondisclosure of the opinions and work product of similar advisory committees in various jurisdictions. The Journal cites statutes and/or rules in Arkansas and Georgia that require publication of advisory opinions without provision for anonymity of the requesting party. The Journal also cites statutes and/or rules in New York, Texas, South Carolina, and Florida that provide for public disclosure of advisory opinions that protect the anonymity of the requesting judge and in some instances delete the names of other parties.

The Bar Association cites the Maine rule, which requires publication but provides for confidentiality. Additionally the Bar Association points to the Massachusetts rule, which authorizes a similar advisory committee to “publish its opinions but the name of the judge requesting the opinion and any other identifying information shall not be included in a published opinion unless the judge consents to such inclusion.” We have also reviewed rules in several other states not mentioned by either party.

We need not determine whether the advisory opinions are subject to APRA. We choose to concentrate on the common-law right of access to judicial records.

“[T]he right to inspect and copy judicial records is not absohite. Every court has supervisory power over its own records and files, and access has been denied where court files might have become a vehicle for improper purposes. ” (Emphasis added.) Nixon, 435 U.S. at 598, 98 S.Ct. at 1312, 55 L.Ed.2d at 580.

“It is difficult to distill from the relatively few judicial decisions a comprehensive definition of what is referred to as the common-law right of access or to identify all the factors to be weighed in determining whether access is appropriate. * * * [T]he decision as to access is one best left to the sound discretion of the * * * court, a discretion to be exercised in light of the relevant facts and circumstances of the particular case. ” (Emphasis added.) Id. at 598-99, 98 S.Ct. at 1312-13, 55 L.Ed.2d at 580.

Therefore, we exercise our discretion in resolving this issue. We are persuaded that a balance must be struck, with regard to prior opinions issued by the committee, between the interest of the public in the disclosure of the opinions and the interest of the inquiring judicial officer in confidentiality. See generally Doe v. Prudential Insurance Co. of America, 744 F.Supp. 40 (D.R.I.1990). Those judges who sought advice from the advisory committee in the past did so with the expectation of confidentiality. That expectation is entitled to substantial deference and should not be eroded. Those advisory opinions issued prior to the publication of this opinion should be released in redacted form. Those opinions should not disclose the identity of the requesting party or the identities of other parties to whom reference was made in the request or in the advisory opinion. The nature of the request should be disclosed in a redacted manner sufficient to form a basis for the advisory opinion that has been sought.

With regard to advisory opinions issued after the publication of this opinion, this court is of a different conviction. We are persuaded that any present judge who receives advice from the committee with assurance that such advice, if acted upon, gives that judge a conclusive presumption of having abided by the Code of Judicial Conduct should expect that the decisions of the committee and any pertinent data are public record. If this conclusive presumption were not accorded to the requesting judges, we might be of another mind. In view of the significant advantage given the judge, when we weigh this presumption against the public interest in the advisory opinion, public interest weighs in favor of disclosure.

The Journal suggests that the present Code of Judicial Conduct grants a “safe harbor” to a judge who follows the advice of the committee. We view what the Journal describes as a safe harbor as more akin to an island fortress. We believe that a conclusive presumption of proper behavior is a powerful incentive for requesting an advisory opinion. While granting a judge such an incentive, we cannot ignore the public’s interest in these advisories. The public’s scrutiny must be accorded the same deference given to judges, because the public has, however realistically or unrealistically, high expectations for its judges.

We are mindful that along with this disclosure, which the court determines to be in response to the public interest, arises a concomitant responsibility on behalf of the media.

“A responsible press has always been regarded as the handmaiden of effective judicial administration * * *. Its function in this regard is documented by * * * [a record] of service over several centuries. The press does not simply publish information about trials but guards against the miscarriage of justice by subjecting the police, prosecutors, and judicial processes to extensive public scrutiny and criticism.” (Emphasis added.) Sheppard v. Maxwell, 384 U.S. 333, 350, 86 S.Ct. 1507, 1515, 16 L.Ed.2d 600, 613 (1966).

The media must be wary that a miscarriage of justice may also occur when unsubstantiated allegations or innuendos are used unfairly or unscrupulously to harm a judge’s reputation. A responsible news medium scrutinizes; it does not unjustly or irresponsibly incite a wildfire of insinuation.¹

“[A]n enforced silence, however limited, solely in the name of preserving the dignity of the bench, would probably engender resentment, suspicion, and contempt much more than it would enhance respect.” Bridges v. California, 314 U.S. 252, 270-71, 62 S.Ct. 190, 197, 86 L.Ed. 192, 207 (1941).

Consequently, all future advisory opinions should be published in unredaeted form. Additionally, if requested, any supporting documentation or any underlying data upon which the advisory was based should be released in unredacted form. This procedure ensures that all members of the Judiciary will have the benefit of the opinions of the committee, which will ultimately form a body of interpretative rulings. These rulings will assist members of the Judiciary, the public, and academia in an understanding of the present code.

In respect to the Journal’s specific request, it is denied insofar as it seeks the opinion issued to former Justice Almeida, along with his letter of request and other supporting documents. It is granted insofar as the committee will ultimately publish a redacted opinion that will outline the nature of the request without disclosing the identity of the requesting party or other parties to whom reference was made in the course of the request. With regard to all advisory opinions issued subsequent to the publication of this opinion, they must be published in unre-dacted form, and if requested, any supporting documentation upon which the advisory was based should also be released.

For the reasons stated, the petition of the Journal is granted in part and denied in part. This opinion will be transmitted to the committee with directions to publish its past and future opinions in a manner consistent with the instructions contained herein.

FAY, C.J., did not participate.

1 . We believe the Code of Ethics, adopted by the Society of Professional Journalists in 1926 and revised in 1973, 1984, and 1987, to be enlightening in defining the ethical duties of journalists and others involved in the news media. The code states in pertinent part:

“I. Responsibility:

Journalists who use their professional status as representatives of the public for selfish or other unworthy motives violate a high trust.” “III. Ethics:

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“(3) So-called news communications from private sources should not be published or broadcast without substantiation of their claims to news values.”

“IV. Accuracy and Objectivity:

“(1) Truth is [the] ultimate goal.

"(2) Objectivity in reporting the news is another goal that serves as the mark of an experienced professional. It is a standard of performance toward which we strive. We honor those who achieve it.

“(3) There is no excuse for inaccuracies or lack of thoroughness.

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“(5) News reports should be free of opinion or bias and represent all sides of an issue.”

"V. Fair Play:

Journalists at all times will show respect for the dignity, privacy, rights, and well-being of people encountered in the course of gathering and presenting the news.

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"(2) The news media must guard against invading a person's right to privacy.

"(3) The media should not pander to morbid curiosity about details of vice and crime.” "VI. Mutual Trust:

Adherence to this code is intended to preserve and strengthen the bond of mutual trust and respect between American journalists and the American people.”

This court believes that these highlighted sections, and the entire code of ethics, accurately define the professionalism we would expect, and in fact the public should demand, from a responsible media.