Islands Unto Themselves: The Pseudo-Public Nature of Administrative Courts

Welcome to the May 2017 edition of our newsletter!  In this issue we’ll examine key differences between administrative courts, including self-regulatory administrative boards, and traditional courts.

Public Only to a Point: Limits of Publicly Available Information from Administrative Courts

The administrative court system serves an important purpose, whether adjudicating a military personnel proceeding or a self-regulatory group mediating a customer dispute with a financial adviser.  Yet whereas most federal or state court cases make their entire case file a public record (with notable exceptions), administrative courts vary in their requirements to allow public review of their actions.

Limitations within the traditional court system are often narrow in scope, such as redacting the name of a witness in a criminal proceeding to protect that person from harm, or sealing disputed designs which could be considered trade secrets, so that no one could simply copy the ideas contained therein.  In self-regulatory organizations, however, in many instances the entire case file is not available for public review: FINRA, for example, will publish decisions and selected other case materials after a case has been decided, but such groups are non-governmental entities that do not have to copy with open records or Freedom of Information laws.  Similarly, actions that enter arbitration cease to become matters of public record at that point, unless one of the parties later includes arbitration materials in an appeal to another court of competent jurisdiction.  Similarly, administrative courts such as the one maintained by the U.S Securities and Exchange Commission make decisions or orders matters of public record, but additional pleadings are not readily available.  As an arm of a federal agency, however, such records may be accessible under the U.S. Freedom of Information Act.

Administrative courts and self-regulatory organizations can be a valuable source of information when researching an individual or a company, often acting as a complementary piece to research on other litigation, or to references in news articles.  While there are greater limitations on the scope of information available to the public, these records can help identify material issues, or potential interviewees, to help bolster an investigative effort.