Robert Smith had a piece (“Sept. 11 Families Want Confidential Files Released“) on NPR’s Morning Edition today that dovetails nicely with a number of posts that have appeared here* on the relationship between courts and the information order. Our argument has been that courts play a role in enacting an important relational component of equality in a democracy: under certain circumstances, formal equals cannot arbitrarily withhold information from one another.
The three remaining plaintiffs are arguing that materials they’ve obtained during the discovery phase of their trial — materials about airline and airport security on 9/11 — should be made public. The defendants are claiming that the material is meant for “the lawyers’ eyes only.”
The case reminds us of the informational role played by courts and civil litigation. As generic members of the public who happened to have been singled out by having a relative killed on 9/11 these plaintiffs are exercising their formal informational equality before the court. They get to say “tell us what you know about that day” and the usually much more powerful organizations are not allowed, in this forum, to say, “we don’t have to tell you.”
Now the question is whether their right to ask (and be answered) is tied to their formal status as equals before the court as a place where information “comes to light,” or whether it’s interpreted in strictly transactional terms — since their lawsuit requires the information, they may see it, but the other party gets to maintain its right to say “we don’t have to tell you” to the public at large.
Even apart from how the judge rules on the contest between the public interest of disclosure and the private interest of confidentiality here, in light of the frenzied demand for “confidential corporate information” from the bailed out insurer AIG in recent weeks, we might remind ourselves that the airlines received a pretty hefty bailout from the taxpayers after 9/11. Perhaps they’ll want to be careful about how vigorously they argue that the public does not have the right to know.
*See these posts:
- “Equality, Information and the Courts Redux: The Dan Rather Report,”
- “Democracy and the Information Order,”
- “Courts and the Information Order,”
- “Suing for Information“
- Hadfield, Gillian. 2009. “Framing the Choice Between Cash and the Courthouse: Experiences With the 9/11 Victim Compensation Fund.” Law & Society Review, Volume 42, Issue 3 (p 645-682)
- Hadfield, Gillian and Dan Ryan. “Democracy and the Information Order” (unpublished draft)
- Weiser, Benjamin. “Value of Suing Over 9/11 Deaths Is Still Unsettled.” New York Times, March 12, 2009.