VirtualCourthouse; Issue 3.6
There Are No Free Records

Judge Arthur M. Monty Ahalt
________________________________________
Paper, paper everywhere, but not the piece that I need. The cost of litigation has exploded in the last ten years. Much of the cost of litigation is the product of inefficient and antiquated work processes. A major contributing factor to the cost is litigation's dependence on paper. The dependence on paper starts with the litigants, is perpetuated by their lawyers, and is required by the Courts. (See Litigation Integration at www.mdlaw.net/ahalt/vc-15.htm).
Let's look at the paper volume in just one court -- the Circuit Court for Prince George's County, Maryland. Prince George's County bordering on the east side of the Nation's Capital has a population of almost 800,000. There are 21 Judges in the Circuit Court. In 1994, there were 42,700 cases filed representing 1.7 million pieces of paper. Demographic experts predict that in the year 2000 there will be 65,000 cases filed representing 2.6 million pieces of paper.
While these numbers are significant, they alone do not define the problem. The problem comes from the judges' need of paper to render a decision. In Prince George's County, 45,000 cases are filed per year. Each case file goes to a judge at least five times for a decision. That means that there are a total of 225,000 moves of the files to 21 judges over a 400,000 square foot building. When a file moves, a person (court employee) has to move the case file. That costs the taxpayers of Prince George's County almost $1 million per year. The problem does not end there. Perhaps the biggest problem that exists is for litigants and the public. They cannot locate the case file when they come (after spending time and money) to the courthouse to look at the file.
One of the great anomalies the advent of the personal computer has brought is the creation of more paper without a change of the work processes, which create the paper. The costs and inefficiencies of the overwhelming paper volume is requiring decision makers to examine the alternatives offered by the electronic world. Other businesses and institutions have successfully addressed their paper problems with electronic solutions -- why can't the litigation world? -- so the reasoning goes.
There are, however, many factors that inhibit and deter a true coordination of all of the variables such as people, institution and types of information. The primary deterrent is the diversity and independence of the participants.
First, the litigants. They represent geographical diversity, political diversity and institutional diversity. They have competing visions and missions and they are usually participating in an adversarial capacity. They do business and have disputes in different cities, different counties, different states, different regions and even different nations. No one court, legislator or executive has authority to compel their action.
Second, the courts, where the dispute is resolved. They likewise represent geographical diversity, political diversity and institutional diversity. There are national courts (U.S. Federal courts), State courts and County courts. A separate constitution and separate legislation create each. A different executive/legislative budget process funds each. For instance, there are over 3,000 counties in the United States. County courts in some states are funded entirely by the state budget and, in others, entirely by the county budget, and yet others by a combination of state and county budgets.
The Washington-Baltimore metropolitan area is not unlike many metropolitan regions. Metropolitan regions, of course, account for a substantial majority of all litigation. The Washington-Baltimore region is composed of two states -- Maryland and Virginia -- and the District of Columbia. Within this region, the Federal court system is composed of four separate courts: (i) the U.S. District Court for Maryland-Baltimore; (ii) the U.S. District Court for Maryland-Southern Division-Greenbelt; (iii) the U.S. District Court for the District of Columbia; and (iv) the U.S. District Court for Northern Virginia. There are nine state trial courts: (i) Fairfax; (ii) Arlington; (iii) DC Superior Court; (iv) Prince George's County; (v) Montgomery County; (vi) Howard County; (vii) Anne Arundel County; (viii) Baltimore City; and (ix) Baltimore County. These fifteen separate trial courts have separate computer systems and separate databases and separate ways of doing business. Moreover, no one jurisdiction has the authority to compel another to subscribe to their way of doing business.
In this paper world, the cost of accessing court records is great. In many cases, the cost is a significant deterrent to getting court records. For example, if an individual needs court record information about cases pending in the 15 separate courts in the Washington-Baltimore metropolitan area, they must make 15 separate trips to 15 separate buildings. If it takes two hours for each trip, then someone has to pay for the 30 hours, not to mention the cost of transportation to and from each court.
As the paper problems have increased, the courts have struggled to cope. Most state courts are grossly underfunded and do not have technology budgets adequate to purchase personal computers much less imaging or electronic filing systems. Even the better funded Federal courts are not provided adequate technology resources. It is in this climate that the concept of public/private partnerships has evolved. Consequently, courts are being provided the opportunity to acquire technological resources otherwise unaffordable to cope with the avalanche of paper.
That the public has a right to access court records is not a seriously debated subject. The Federal and State Constitutions as well as the common law make it clear that the public, generally speaking, is entitled to access court documents except for several well-identified privacy areas such as juvenile and adoption records. See 84 ALR 3d 598. See also, Privacy and Public Access to Electronic Court Information by Susan Jennen, National Center for State Courts, 1995. Court rules on both the State and Federal levels are adding definitions and specifics to the rules concerning public access.
On the other hand, for-a-fee electronic access is a seriously debated topic. Generally, electronic access fees fall into several categories: (i) those designed to recover the direct costs of providing access by a court or government operated system; (ii) those designed to recover the indirect cost by a court or government operated system; and (iii) those designed to generate a profit for private technology providers and revenue for the government.
Underlying the debate is the notion that court records should be provided for free. The advocates suggest that there is no cost to providing access to court records. The reality, however, is that there is enormous cost to the maintenance of court records. As electronic access and technology have evolved, the costs have increased. Moreover, as the public has demanded that the records become more user friendly, the estimated costs have increased even more. In short, there are no free records -- somebody pays for the records. Historically, it has been the taxpayer that pays through the government's general revenues. Since the Judicial Branch of the government receives the least amount of the general tax revenues, it does not obtain sufficient resources to make its records accessible in the information age.
As the public has demanded greater electronic access to court records, many have questioned the government's ability to provide up-to-date user-friendly technology. The public demands for greater electronic access is not based upon some idle curiosity. In most instances, it is based upon real and legitimate business need. Employers need criminal record information. The news media needs news information. Financial institutions need credit information. Lawyers and litigants need docket information. Ordinarily, government functions in a extremely deliberate fashion. It is not the nature or business of government to react fast even in the information age. It is with this background that private organizations have begun to offer court information for a fee.
CourtLINK (www.courtlink.com), a service of DataWest, is the most notable of these evolving services. To date, they offer their customers electronic access to U.S. District Courts, U.S. Bankruptcy Courts, New York State Courts, Oregon State Courts and Washington State Courts. They will soon add Virginia State Courts and the Circuit Court for Prince George's County. Each one of these jurisdictions has made the public policy determination that public access of court records for a fee is good public policy.
Appropriate policy of the court and community should provide access by both public and private organizations. The court should determine what information will be available and allocate its discretionary resources to providing at least elementary electronic access. The cost of such access should be enough to maintain and improve the technology allowing the access.
Private for-profit information organizations such as CourtLINK, Westlaw, Lexis-Nexis and LawPlus (for a full list see www.mdlaw.net/ahalt) should be permitted access for a fee. Such access will be technologically superior and the cost will probably be greater. Thus, the court meets the needs of the entire community rather than reducing their service to the lowest common denominator. A policy, which makes court information available to the largest number of people meeting the needs of a diverse technological community, is a wise policy. Protection of privacy or confidentially issues occurs when each court determines which records will be electronically published.

by Judge Arthur M. Monty Ahalt - August 1998

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