Global news agency Reuters filed motions Wednesday seeking to open the Oklahoma County courtroom in which oil baron Harold Hamm’s divorce trial has been conducted nearly in secret for almost 10 weeks.
Reuters asked Special Judge Howard Haralson for an expedited hearing on its motions to intervene in the case and to make the courtroom and sealed trial transcripts available to the public.
On the first day of the trial Aug. 4, Haralson closed the courtroom to everyone who had not signed confidentiality agreements, The Oklahoman reported at the time.
The newspaper reported that Haralson expressed concern that disclosure of confidential information could harm Continental Resources Inc. Hamm, one of America’s wealthiest men, is chairman and majority shareholder of the publicly traded company.
“There’s no sense destroying a company over a divorce trial,” Haralson said.
He indicated that only those portions of the trial concerning proprietary business information would be closed to the public.
“I sure don’t believe in things being done behind closed doors,” the judge said.
Just the opposite seems true. The courtroom was open for portions of the first three days of the trial but has been closed to the public since Aug. 6, according to the Reuters motions.
On Sept. 24, Reuters reported that Hamm has been rewriting the company’s history behind the closed courtroom doors — a move intended to stave off a divorce payout that could be the largest in U.S. history.
The news agency found that Continental had changed its website — and even U.S. Securities and Exchange Commission filings — to diminish its accomplishments under Hamm’s leadership.
If Hamm can show that market conditions, not his management, led to the company’s financial success, he won’t have to share those gains with his estranged wife, Reuters noted.
The news agency’s Oklahoma attorneys — Mike Minnis and Doug Dodd — contended Wednesday that the public interest in Hamm and Continental is compelling. In a motion to intervene in the case, they described the company as one of the most important in Oklahoma and the U.S. oil industry.
They described the 68-year-old Hamm, whose wealth is estimated at $20 billion, as “among the most important U.S. industrialists and public business figures of his generation.”
“He has played a leading — if not the leading — role in the current U.S. energy boom and is widely credited for being among the first to use hydraulic fracturing, or fracking, and horizontal drilling to extract oil from the Bakken rock formation.
“He is believed to own more oil underground than any other American.”
The motion notes that Hamm was Mitt Romney’s senior energy adviser during the 2012 presidential campaign and that Time magazine named Hamm one of the world’s most influential people that year.
Yet, the motion explains:
With every passing day, the public is being shut out of a civil trial that directly concerns one of the most significant, publicly traded companies in the U.S. oil market, the leadership role, achievements and stake of its founder and majority owner, and one of the wealthiest, most influential and politically active businesspersons in the country — all on the speculative premise that allowing the public into the trial will expose ‘confidential and proprietary information’ and ‘destroy’ a publicly traded company.
Reuters filed an open records request in late August for the court file, “including records that address the Court’s rationale for sealing the courtroom and trial transcripts.” But the motion states that Reuters has not received a response to that request.
In the motion to open the courtroom and trial transcripts, the attorneys described Haralson’s “mere invocation of nonspecific ‘confidential financial information'” as an “insufficient” reason for closure.
“These are not magic words,” the motion states. “Just because information is ‘confidential’ or ‘financial’ does not mean that it rises to the level of a protectable trade secret. Instead, a far more particularized evidentiary showing is required.”
The motion also notes that the public has First Amendment and common law rights of access to judicial proceedings, including divorce trials. It explained:
In any context, openness serves government interests of the highest order. It ensures that proper procedures are followed, creates incentives for all participants to perform well, discourages perjury and encourages those with information to come forward. It inhibits misconduct and bias and provides ‘an effective restraint on possible abuse of judicial power.’
Indeed, court proceedings are presumptively open because secrecy is anathema to public confidence in the judicial process.
In an email Wednesday evening, a Reuters spokesperson summarized the news agency’s reasons for seeking to open the courtroom and records:
The near-total secrecy of these proceedings violates the First Amendment. Continental Resources is one of the most important publicly traded companies in the U.S. oil industry. The public has a right to know how its chief executive officer explains his role in the company’s growth over the past two decades and whether, as a result of the Hamms’ divorce, there may be a change in the shareholding structure of the company.
Kudos to Reuters for fighting to protect our right to public trials. Shame on Oklahoma’s news media for not doing so.
Joey Senat, Ph.D.
OSU School of Media & Strategic Communications
The opinions expressed in this blog are those of the commentators and do not necessarily represent the position of FOI Oklahoma Inc., its staff, or its board of directors. Differing interpretations of open government law and policy are welcome.