The short life and death of Missouri's witness, victim redaction requirements

Mark Sableman is senior counsel at Thompson Coburn LLP and represented plaintiffs in Gross v. Missouri. Sableman is a non-voting member of the Missouri Press-Bar Commission.

Hon. Michael A. Wolff is a retired judge and former chief justice of the Supreme Court of Missouri, as well as dean emeritus at the Saint Louis University School of Law. Wolff represented plaintiffs in Gross v. Missouri.¹

Editor’s note: This article is being published at the request of the Missouri Press-Bar Commission² to better inform lawyers and judges of recent court decisions related to redaction requirements. 

In 2023, the Missouri General Assembly passed a bill that was later signed and enacted that dramatically changed the procedures in Missouri state courts, requiring lawyers and judges to redact witness and victim names and identifying information from all court filings. A year and a half later, in December 2024, a court ruled in Gross v. Missouri,³ that the witness and victim redaction requirements were unconstitutional on multiple grounds and barred the state from enforcing it. 

This article discusses the short life and early death of the witness and victim redaction requirements, including the judicial openness and First Amendment reasons why the court ruled it unconstitutional. 

Traditional redaction rules 

Missouri courts have long run on principles common to almost all American courts, and indeed almost all common law courts worldwide. Judicial opinions in the common law system typically describe the relevant facts and circumstances of each case so the basis for that decision can be understood and precedents can be created, applied, and understood.

As a rule, court proceedings and records are open to the public, but exceptions are made for special situations where there is a demonstrated need for confidentiality. Most of these exceptions relate to sensitive domestic, juvenile, and criminal matters. Missouri Court Operating Rule 2 sets forth both the general rule, “Records of all courts are presumed to be open to any member of the public for purposes of inspection or copying,” as well as the various exceptions, most with statutory origin.

In the days when paper court files were available only at courthouses, sensitive information was protected in various ways, most often with files in sealed envelopes, available only to the court staff or authorized individuals. Once filings became electronic through Case.net, confidentiality switched to electronic means. And when Case.net records became generally available to the public in July 2023, special forms were created to handle document redactions. Redacted files would be filed publicly, and the redacted information would be referenced on a new form, the Confidential Redacted Information Filing Sheet, on which the filing party would either attach the unredacted document or itemize the redacted information.

The Supreme Court of Missouri, foreseeing the expanded public access, tweaked some of its access and redaction rules in 2022 and 2023, while maintaining the traditional protocol — presumed public access to records, with a few limited exceptions.

2023 proposed new redaction requirements

In January 2023, Missouri Rep. Justin Hicks, of St. Charles County, introduced a bill to remove confidential information from court filings. In April 2023, the House Judiciary Committee considered and recommended an expanded version of the bill, as an amendment to Senate Bill 103, which addressed various judicial system matters. In May 2023, the Missouri House of Representatives approved Hicks’ Amendment 6 to SB 103. The amendment significantly expanded Hicks’ original bill, adding witness and victim names and identifying information as confidential information. SB 103 proposed to amend existing § 509.520 of the Missouri Revised Statutes to require all court filers redact certain information in all court filings, including Social Security numbers, dates of birth, PINs, passwords, state identification numbers, and motor vehicle license numbers. The bill also required redaction of witness and victim identities, including names, addresses, and other contact information.

The Missouri General Assembly passed SB 103, with the witness and victim redaction requirements included, and Gov. Mike Parson signed it into law July 6, 2023.

SB 103 changed the then-existing § 509.520.1 on required redactions from court records by characterizing information in its subsections as “confidential and personal identifying information.” It did this by tightening redaction requirements in subsections (1) and (2) as to Social Security and credit card information and by adding the following subsections: 

In addition to imposing the witness and victim redaction requirements, SB 103 directed that the Supreme Court of Missouri make rules implementing the statutory mandates. 

Subsections (4) and (5), relating to victim and witness names and identifying information, became the subject of the subsequent litigation.

Compliance with the new redaction rules

SB 103 was enacted while lawyers were being trained in new redaction procedures and forms in anticipation of the July 1, 2023, launch of expanded remote public access to Case.net, so those educational efforts quickly took the new development into account. Lawyers were told that in addition to the pre-existing redaction requirements of Court Operating Rule 2, there were additional redaction rules because of SB 103, which indicated all witness and victim names and identifying information would be barred from court filings. Lawyers and other court filers who failed to properly redact court filings could face penalties. Prior to the law’s effective date, some media organizations asked the Supreme Court of Missouri to invalidate or stay the redaction provisions.

On Aug. 28, 2023, the new redaction rules took effect. Following the new law, instead of the traditional common law narrative — in which the story of the plaintiff, the defendant, and the witnesses and documents were told with names — those filings took on a more abstract form that did not include names. References to people that formerly used names were substituted with status words (e.g., “Victim”), relationships (e.g., “Victim’s sister”; “Girlfriend”; “Uncle”), initials (e.g., “D.V. and E.C”), professions (e.g., “Nurse”), and offices (e.g., “State Attorney” and “Trial Counsel”).

Privacy was usually given as the justification for the statute, but in some cases many of the names redacted were of public officials and professionals who had no personal privacy interests in the relevant events, for example, law enforcement officers; public officials; corporate employees and officers; public and private custodians of records; expert witnesses; doctors, nurses, social workers, and pharmacists; lawyers, engineers, and other professionals who become witnesses based on their professional responsibilities; complaining witnesses, who voluntarily made complaints to authorities; prisoners; and court reporters and court clerks. The statute even required the names of murder victims to be redacted; although, as stated in Maritote v. Desilu Productions, Inc.,⁴ “It is anomalous to speak of the privacy of a deceased person.” The public, of course, has great interest and concern in murder cases, which are typically referred to by the name of the victim.

In situations where a witness or victim name was redacted, the effort associated with court filings multiplied. All court-filed documents, including attachments, were redacted of all witness and victim names. Additionally, associated Confidential Redacted Information Filing Sheets had to be prepared, covering each filing and exhibit that required redaction.

Some lawyers reported they could not take as many cases due to the new redaction requirements. The lawsuit used Nina McDonnell, an appellate lawyer who was one of the plaintiffs in the case challenging the redaction requirements, as an example. It noted:

The redactions also made things difficult for journalists and citizen watchdogs. Court filings were difficult to understand without names, and news audiences expected full news accounts, including names, rather than abstract stories about unnamed people. The chances of errors, including misidentification of accused individuals, increased. News reporting on court happenings, which requires substantially fair and accurate recounts of the proceedings, became more difficult due to redaction of names. With names gone, some believed the Missouri judicial system became less susceptible to monitoring and oversight by the public, public interest groups, and researchers. 

The Missouri Broadcasters Association and others brought the problems with the witness and victim redaction requirements to the attention of the Missouri General Assembly in 2024. The House Judiciary Committee considered and passed a repeal of those provisions, which then passed the House of Representatives. A similar bill passed the Senate Judiciary Committee but did not make it through the Senate.

Court challenge to witness and victim redaction requirements

On May 31, 2024, two appellate lawyers, journalist William Freivogel, and the Missouri Broadcasters Association filed their challenge, Gross v. Missouri,⁶ to the witness and victim redaction requirements in the Cole County Circuit Court. Gray Local Media, operator of several Missouri television stations, later joined as a plaintiff. The plaintiffs raised six claims. The first two were based on the alleged substantive unconstitutionality of the provisions under the First Amendment of the U.S. Constitution and the open courts provision of the Missouri Constitution. The other four claims were in regard to alleged procedural deficiencies relating to the way SB 103 was passed.

Normally, constitutional claims are not addressed until after less drastic claims. But in this case, the constitutional claims of counts one and two were themselves the only substantive claims, and in terms of relief sought, the most limited ones. The first two claims sought only declarations of unconstitutionality, and related injunctions, as to the witness and victim redaction provisions — specifically, subsections (4) and (5) of § 509.520.1.

Each of the procedural claims necessarily sought more extensive relief. Count three alleged that SB 103 violated Article 5, § 5 of the state constitution, which directed that the legislature could change state court rules only “by a law limited to the purpose.” Success on this claim would require invalidation of all the changes that SB 103 made to § 509.520, including the changes as to PINs and passwords, state identification numbers, and motor vehicle license numbers.

The final three counts, which alleged violations of the original purpose, single subject, and clear title requirements for legislation, would, if successful, have required invalidation of the entirety of SB 103, including various court reforms unrelated to redaction and enhancement of judicial security.

The defendants in the case were the state, governor, and attorney general. The attorney general represented all the defendants. Counsel for all parties agreed the case raised purely legal issues and proceeded with their separate motions for judgment on the pleadings. The state moved for judgment in its favor on all counts, and the plaintiffs initially sought judgment solely on counts one and two, the federal and state constitutional claims that sought the narrowest relief.

Plaintiffs’ substantive constitutional claims

As to count one, the federal constitutional claim, the plaintiffs relied on the U.S. Supreme Court’s decisions concerning public access to judicial proceedings and records. In three leading cases, Globe Newspaper Co. v. Superior Court,⁷ Press-Enterprise v. Superior Court,⁸ and Press-Enterprise v. Superior Court⁹ (“Press-Enterprise II”), the U.S. Supreme Court recognized a general right of access, where the judicial proceedings or records have been historically open to the public and where access would further the democratic process and contribute to its self-governing function.

Many cases have applied the Press-Enterprise II test, as it is known, to court records. While courts have acknowledged that information sometimes needs to be redacted, they have generally permitted redaction only in special situations where a clear need was shown and the redaction was narrowly tailored to the proven interest. A decision of the 9th U.S. Circuit Court of Appeals, Civil Beat Law Center for the Public Interest v. Maile,¹⁰ found unconstitutional a Hawaiian court rule change which required redaction of all “personal information,” including “medical and health records,” from public court filings. The court found both the experience and logic prongs of the Press-Enterprise II test to have been satisfied and concluded that even seemingly sensitive health and medical information falls within the presumptive right of access to court records, such that it cannot be sealed as a blanket matter.

The plaintiffs’ count two, the state constitutional claim, was similar in that it was based on the need for public access to court records, but it derived from the open courts provision of the Missouri Bill of Rights, which provides that the courts of Missouri “shall be open to every person.”¹¹ The plaintiffs argued that by removing traditionally available, essential, and useful information from those court records, SB 103 violated the open courts requirement. Many other states have similar open courts provisions, many of which have been interpreted to provide a presumptive right of public access to judicial records.

Missouri precedents were also consistent with a broad interpretation of the open courts provision, including Pulitzer Publ’g. Co. v. Transit Cas. Co.,¹² where, in the context of a receivership proceeding, the Supreme Court of Missouri noted that “there is a common law right of public access to court and other public records” and a “presumption in favor of open records.” It held that “the presumption cannot be overcome absent a compelling justification that the records should be closed.”

The plaintiffs also pointed to the history of Missouri appellate decisions, showing that that names of witnesses and victims have been consistently included in the state’s public judicial records. They also cited an article in The Missouri Supreme Court Historical Journal that recognized the importance of court records, including names, to today’s historians, citizens, and communities, referencing the recent research over freedom suits by enslaved individuals that relied on detailed court records.

Additionally, in a recent case from Ohio, State ex rel. Cincinnati Enquirer v. Bloom,¹³ the Supreme Court of Ohio held unconstitutional a state law that imposed a blanket closure rule on certain juvenile court records, relying on the state’s open courts constitutional provision. The decision recognized a right, under the open courts provision, of “a constitutional presumption of public access to juvenile court proceedings, which cannot be overcome without an individualized finding that the harm to the juvenile from disclosure outweighs the potential benefits of public access.” In the course of the decision, the court explained that open courts provisions have long been associated with a right of public access to court records and identified important values promoted by the open courts provision, including promotion of judicial fairness, the right of the people to know what is being done in their courts, and the importance of public scrutiny of the courts.

The state opposed the plaintiffs’ motion for judgment on the pleadings by claiming that the witness and victim redaction provisions of SB 103 did not make any substantive change in redaction rules and were only meant to echo the existing, more limited, redaction requirements of Court Operating Rule 2.

The court’s ruling

The Supreme Court of Missouri appointed Hon. Aaron Martin, of Moniteau County, to hear the case. He heard arguments on all motions Dec. 5, 2024. On Dec. 20, 2024, Martin issued his ruling — which he amended and clarified Jan. 2, 2025 — granting the plaintiffs’ motion on counts one and two, declaring the witness and victim redaction requirements unconstitutional and barring the defendants — the state, the attorney general, and the governor — from enforcing them. The court also granted the state’s motion for judgment on the pleadings as to counts four, five, and six — the original purpose, single subject, and clear title claims — but denied its motion as to counts one, two, and three. On Feb. 27, 2024, the plaintiffs voluntarily dismissed their count three based on the state constitutional limits on legislation changing court rules.

The state did not appeal Martin’s ruling, and, accordingly, his ruling that the witness and victim redaction requirements are unconstitutional stands as the final word on this issue. Because the court’s order prohibits the state from enforcing the witness and victim redaction requirements, lawyers and other court filers are not required to comply with them, nor can they be subject to discipline for violating them.

Conclusion

Now that the witness and victim redaction requirements have been declared unconstitutional and unenforceable, lawyers and court filers should ensure they are properly redacting court filings in compliance with the Missouri Court Operating Rules, Supreme Court of Missouri orders, and state law.

Lawyers and some organizations have suggested rule changes that would bring clarity to this important area. With the recognition of the pre-SB 103 court operating rule, and clarifications as may be provided in the operating rule, presumably practices will be universally applied. This will especially benefit those who seek to monitor and learn from court proceedings, like concerned citizens, news reporters, public interest groups, lawyers, students, researchers, and historians. It will also relieve burdens on court filers and court clerks.

The short story of subsections 4 and 5 of § 509.520.1 may also offer some lessons for the future, including a need for closer review by the legislature of amendments and public hearings following initial hearings where legislation would be substantially changed. It may also suggest the wisdom of Article 5, § 5 of the Missouri Constitution, which limits legislative dabbling with court rules. Finally, it shows the importance of the federal and state constitutional protections for public access to judicial proceedings. Access to judicial proceedings has long been recognized as a basic legal right — under common law and state and federal constitutions.

Endnotes:

1 Mark Sableman and Hon. Michael A. Wolff represented plaintiffs in Gross v. Missouri together with David Roland, of Roland Law Firm; James R. Layton, of Tueth, Keeney, Cooper, Mohan & Jackstadt, P.C.; and Michael L. Nepple and Justin Mulligan, of Thompson Coburn LLP. 

2 The Missouri Bar created the Missouri Press-Bar Commission to foster better communications between the media and the bench and bar. Established in 1972, the commission is composed of media professionals, lawyers, and judges who traditionally meet twice each year to develop a variety of projects and programs to promote a better informed citizenry and strong First and Sixth Amendments. 

3 No. 24 AC-CC04658 (19th Cir. Mo. 2024). 

4 345 F.2d 418, 420 (7th Cir. 1965). 

5 Gross, No. 24 AC-CC04658, 6 (19th Cir. Mo. 2024). 

6 Id. 

7 457 U.S. 596 (1982). 

8 464 U.S. 501 (1984). 

9 478 U.S. 1 (1986). 

10 113 F.4th 1168 (9th Cir. 2024). 

11 Mo. Const. Art. 1, § 14. 

12 43 S.W.3d 293 (Mo. 2001). 

13 177 Ohio St.3d 174 (2024).