Championing the public’s right to know


Published November 15, 2021

Heather Abraham.

Heather Abraham


The Civil Rights and Transparency Clinic in the School of Law champions public access to documents others want concealed. Student attorneys represent and advise journalists and advocate for reform to abusive court record-sealing — all with the goal of upholding a foundational pillar of the democratic process: public engagement.

“Democracy is participatory,” explains clinic Director Heather Abraham. “For our democracy to work as intended, everyday citizens must have access to sufficient information to hold their government accountable. We cannot make decisions about the collective problems we face without that information,” says Abraham, associate professor of law.

Since its inception, the clinic has supported local and national journalists seeking essential information, taken up causes including finding hidden landlords and trained students in practical skills. In consultation with Michael Higgins, clinic assistant director, Abraham spoke with UBNow about some of the clinic’s accomplishments.

In a recent blog, titled “How to Fix the Over-sealing of Federal Court Records,” you quote the late Supreme Court Chief Justice Warren E. Burger: “People in an open society do not demand infallibility from their institutions, but it is difficult for them to accept what they are prohibited from observing.” What’s the threat facing our democracy?

Our democracy is weakened when public access is thwarted. There’s a reason that freedom of the press is critical to our checks-and-balances system of government. Journalists inform the public by asking critical questions, gaining access to information in the public’s interest, and explaining that information to us in a way we can understand.

There is an image in our class syllabus: the front of a building that reads “Democracy.” The pillars are rolled newspapers with words like “free press,” “news” and “media.” Our clinic is a critical part of that process of upholding democracy. We represent journalists asking hard questions of government officials, holding them accountable to public scrutiny. Journalists need attorneys like us who help enforce their rights to access information.

You write that sealed court records can thwart public assess. How?

Sealing court records is an especially pernicious example of hiding information that should be public. In 2019, investigative journalists and data scientists published “Hidden Injustice,” a series documenting shocking and widespread abuse of record-sealing. The investigation involved opioid cases — and others involving unsafe products — revealing that federal judges sealed evidence related to health and safety in about half of the 115 biggest defective-product cases in the past 20 years. If these records were not sealed, the public would have known sooner about the scope and gravity of the opioid epidemic. Withholding this information protected corporations at the expense of people’s lives and health. In many cases, the courts did not even consider the public’s right to see these records.

Your article argues that courts should reform sealing procedures. Tell us more about this proposal.

Our clinic formally proposed a new rule, partnering with Knight First Amendment Institute at Columbia University, and Professor Jonathan Manes of the Northwestern Pritzker School of Law. The rule — proposed Federal Rule of Civil Procedure 5.3 — would create uniform procedures akin to a checklist limiting when records should be sealed. It also limits how long records should be sealed — only when there is actual need for sealing. When the need ceases, the records should be public.

Our proposal responds to our empirical research showing that courts across the country vary widely in whether — and how — they seal records. The “Hidden Injustice” investigation showed that litigants and courts abuse record-sealing. The time has come for more transparency.

Another transparency issue you’ve mentioned is the lack of public accountability over limited liability companies (LLCs) illustrated here in this piece. What’s your involvement and what’s at stake?

The clinic is investigating how laws governing LLCs allow landlords to hide their identities. This has several implications in Buffalo and New York. Landlords commonly exploit this relative anonymity to avoid legal responsibility for violating housing codes — like leaking roofs and mold — and illegal discrimination. Tenants seldom know the identity of their landlord when there is an LLC, making it difficult to resolve housing problems. Even cities struggle to enforce city laws against LLC landlords. Our next step is to advocate for legislative change at the state and local level.

Tell us more about the clinic’s impact on students.

Our most important work is preparing students to be skillful, ethical attorneys. Our alumni are leaders in the region and beyond. Colton Kells, ’20, hit the ground running protecting tenants at Legal Assistance of Western New York. He now develops innovative approaches to eviction defense as a Tenant’s Advocacy Fellow at Cornell Law. Ashley Baxter, ’20, channels her clinic experience as a prestigious appellate specialist with the criminal appeals bureau of the Legal Aid Society of New York.

We prioritize impact. A current student, Elias Fox Schmidt, first joined the clinic as a summer fellow. He wrote a research memo on the ways our new clinic could expand our legal services to more transgender clients. Informed by that research, he partnered with a local legal services office to start offering name-change legal services for transgender clients to change their legal names on identification documents. Now, as a student attorney, he’s in the process of developing a collaborative name-change clinic next spring. This is another example of how our clinic students become more practice-ready.