The Judicial Conference’s ability to redact judicial financial disclosure reports will be extended indefinitely if Congress adopts H.R. 1059, which was approved today by the House Judiciary Committee.  The legislation’s purpose is to ensure the “security of judges and other judicial employees from intimidation and threats,” according to Committee Chairman Lamar Smith. Without legislative action, the provision allowing for the redaction of “personal and sensitive” information “to the extent necessary to protect the individual who filed the report or a family member of that individual” expires on December 31, 2011.

On its face, giving the courts permanent redaction ability is reasonable in this limited context, but may have an unintended consequence. The same paragraph that grants the ability to redact financial information also requires the Administrative Office of the Courts to submit an annual report on the use of this redaction power. The annual report allows the House and Senate Judiciary Committees to determine if the redaction authority is being used properly. It includes  the number and nature of the redactions, steps put in place to make sure litigants can still determine if there’s a conflict of interest, and principles used to guide redaction authority. Without an expiration date, will Congress will prompted to pay attention the annual reports to ensure the redaction authority is used properly?

There is an obvious and elegant solution.The annual reports should be published online in one central location so that the public can act as a watchdog. The courts already publicly report on other aspects of judicial business, so why not this? (As far as we can tell, the reports themselves to not contain information affecting judicial security.)

We believe that this public disclosure for the annual reports make sense, but if Congress is going to update the financial disclosure provision of this law, the Ethics in Government Act, it should go further. The financial disclosure forms themselves should be available online, for all files (which include all three branches government), in one central location. Moreover, the provision of law permitting a fee to be charged for reproduction and mailing of these reports should be eliminated. And people wishing to access the reports should not be required to provide information about themselves. Finally, because maintaining documents already placed online is virtually costless, electronic versions of documents should be retained indefinitely.

HR 1059 presents the opportunity to make this disclosure law make sense in the electronic age.