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ProPublica and Other News Orgs Urge Defense Dept. to Ensure Public Access to Military Court Records

ProPublica, the Reporters Committee for Freedom of the Press and 38 other media organizations have petitioned the general counsel of the U.S. Department of Defense, Caroline D. Krass, to grant access to written court orders and documents filed in United States v. Mays and to issue guidance to the armed services clarifying that military courts must ensure contemporaneous public access to court records and a public docket.

In the Mays case, explained in the ProPublica article “The Navy Is Withholding Court Records in a High-Profile Ship Fire Case,” a sailor was accused of aggravated arson and hazarding a vehicle in the 2020 fire that destroyed the USS Bonhomme Richard. But the Navy and a military judge have refused to release records in the case, citing Article 140a of the Uniform Code of Military Justice as well as a memo issued by the former DOD general counsel and Navy instructions interpreting that guidance.

The media organizations argue that the Navy has misinterpreted Article 140a, noting that Congress adopted it in 2016 to promote transparency in the military courts and to enhance public access to court records and docket information at every stage of court-martial proceedings. The article points to well-settled guidance that court-martial proceedings must resemble a criminal trial in federal district court as much as possible. The media coalition notes that access to these records is also required by the First Amendment and common law rights of public access to court proceedings and records. The media organizations are asking Krass to make clear that the court records in the Mays case must be released immediately and any future filings be released contemporaneously.

“The Navy is relying on Article 140a to justify denying access to nearly the entire court file in this case, even though these records have been discussed in open court and are not classified, sealed or otherwise restricted,” ProPublica Deputy General Counsel Sarah Matthews said. “This is the opposite of what Congress intended when it adopted this provision, and we hope the Defense Department quickly corrects this error.”

ProPublica and the Reporters Committee for Freedom of the Press are joined by The Associated Press, Gannett, Hearst, The New York Times, The Washington Post and more. See the letter here.

Update, September 20, 2022: National Institute for Military Justice has sent its own letter to Krass endorsing our letter and sharing concerns about how Article 140a is being misconstrued as a mandate for secrecy rather than for public access.

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