Iowa Supreme Court justice blocks Register's use of court records

An Iowa Supreme Court justice has issued a highly unusual order prohibiting the Des Moines Register from publishing information gleaned from court records.

The Register has objected, calling the order an unlawful form of prior restraint that violates the First Amendment and “stands as an undesirable and unsustainable outlier in the law and policy of this state and this nation.”

The order, from Iowa Supreme Court Justice David Wiggins, pertains to court records that include information related to Jaysen McCleary, an Iowa-licensed lawyer now living in Montana.

Over the past two months, McCleary has asked several judges to seal public records in various court proceedings where he has acted as either the plaintiff or an attorney. He also has sued the Register and reporter Clark Kauffman in an effort to block publication of an article about him.

The Dec. 11 order prohibits the Register, at least temporarily, from publishing information from court records that were sealed from public view after the Register obtained copies.

“Pending further order from this court, the defendants shall not disclose or share, other than with legal counsel, any information in the defendants’ possession that was obtained exclusively from the reports,” the order says.

Gregg Leslie, the legal defense director for the Reporters Committee for Freedom of the Press, called the court order "very unusual.”

“Prior restraint should be a measure of last resort. In this case, we have these publicly obtained documents that were accessed without violating any rule or order," Leslie said. "There seems to be no justification at all for imposing prior restraint on your reporting.”

The Register’s attorney, Michael Giudicessi, has asked the Iowa Supreme Court to vacate the order, arguing in court filings that “the United States Supreme Court has never approved imposition of a prior restraint against the news media and the court has suggested it would consider doing so only in dire situations, such as matters of national security when the country is at war.”

Giudicessi wrote that the order is “an impermissible prior restraint of the press barred by the Iowa and federal constitutions. … The order unmistakably functions as an injunction directed to the Des Moines Register newspaper and its news reporter, Clark Kauffman, enjoining them from publishing the contents of court records.”

Kathleen Richardson of Drake University’s School of Journalism and Mass Communication said prior restraint is "the most disfavored form" of government-imposed regulation of speech.

"It is hardly ever found constitutional," she said. "The law is filled with cases in which the courts established that publication of true, newsworthy information, legally obtained, especially from public records, is protected by the First Amendment."

The order was issued three days after Polk County District Court Judge Jeffery Farrell denied McCleary's request that Kauffman and the Register's representatives be ordered to appear in court and show why they shouldn't be held in contempt.

In his decision, Farrell said the sealed records, which include "mental health, medical and financial information," were publicly accessible when the Register obtained them, and neither the news organization nor the reporter was covered by the protective order limiting their disclosure.

McCleary's attorneys made the records public in July when they filed them with the court as part of a lawsuit McCleary was pursuing against the city of Des Moines.

For at least three months, the documents remained readily accessible to the public. They had not been marked "confidential."

On Nov. 15, after reviewing hundreds of court documents, Kauffman emailed McCleary to let him know the records were publicly available on Iowa Courts Online.

"I just wanted to make you aware of that in case that was something you or your attorneys had asked the court (to) address,” Kauffman wrote.

McCleary wrote back, thanking Kauffman for alerting him to the situation. The next day, a Polk County judge had the documents sealed and made subject to a protective order.

McCleary later sued Kauffman and the Register, claiming they were conspiring with the city of Des Moines to defame him and damage his reputation through a planned news article that would make use of the sealed records and other information.

Wiggins’ order said the Register cannot publish any information obtained exclusively from the now-sealed reports, at least until the full court says otherwise.

"This is extraordinary and very troubling action by Justice Wiggins — blocking publication of information that was legally obtained from a public record," said Randy Evans, a former Register editor who now serves as executive director of the Iowa Freedom of Information Council. "We are hopeful the entire Supreme Court will quickly conclude that Justice Wiggins' order goes too far and is an impermissible prior restraint on a free press."

Cristina Tilley, associate professor of law at the University of Iowa, said that while prior-restraint orders are “exceedingly rare,” Wiggins' order is narrowly drawn to limit the use of specific records that raise questions of individual privacy.

“The default approach of the courts has been that once the media has the information, judges are not hospitable at all to the notion of restricting what the press can do with that information,” she said. “But they have made room for short-term, very narrow, kinds of restraints on the press.”

She noted that in the 2004 rape trial of basketball player Kobe Bryant, a court reporter mistakenly sent the media protected information about the alleged victim’s sexual history.

The trial judge prohibited publication of the information at least until he could review the information and decide whether it should be disclosed by the court.

Media organizations appealed that decision. U.S. Supreme Court Justice Stephen G. Breyer refused to lift the order for at least 48 hours, at which time the trial judge was expected to make his decision on disclosure.

When the trial judge opted to release a slightly edited version of the records, the dispute was resolved.

The McCleary and Bryant cases aren’t the only prior-restraint cases involving court records sealed after being made accessible to the press and the public.

In a 2015 civil case out of California, the Pasadena police officers’ union filed a lawsuit in an effort to block the release of a confidential report on a police shooting. As part of its case, the union filed a publicly accessible legal brief that quoted from the report itself. Nine days passed before the police union took any action to have the brief sealed by the court.

After the document was sealed from public view, the California Court of Appeals issued an order directing all parties to the lawsuit — including the Los Angeles Times, which had been seeking access to the full police report — to return all copies of the brief they had obtained during the time it was publicly accessible.

The Reporters Committee for Freedom of the Press urged the court to reverse its action, arguing that “an order to seal an already-viewed document, and to return copies of that document to the court with the implicit understanding that the party cannot retain or publicize that information, functions as a prior restraint on speech.”

The appellate court reversed itself, vacated its previous order without explanation and unsealed the court records.