"The difference between the right word and the almost right word is the difference between lightening and the lightening bug" Mark Twain
Judge Arthur M. Monty Ahalt (Ret.) - January 2001 As we enter the second or first year-depending on who is counting- of a new Millennium the promise of the Information Age some times runs into a whirlwind of fear. Such is the case with electronic access to court records. Privacy advocates across this nation are turning up the volume of rhetoric and causing policy makers to take a closer look at determining the best public policy for electronic access to court records. In Maryland an Ad Hoc Committee on Court Records of the Administrative Office of Courts has issued a draft policy on dissemination of court records, which dramatically curtails the public's current electronic access to court records. Some would maintain, however, that the Information Age provides the courts with a historic opportunity to provide the public with more information rather than less information. It seems obvious that openness increases confidence while secretiveness decreases confidence. At the heart of establishing policy for public access to court records is the delicate balance between the public's right to know of public adjudications and the rights of the involved individuals to keep the public resolution of the dispute private. Currently, in Maryland state courts, there exist three methods by which the public may electronically access court records. The Judicial Information Systems (JIS) allows the public to access, by virtue of a subscription agreement, court records in the Maryland District Courts, the Circuit Courts for Baltimore City, Anne Arundel County, Carroll County, and courts which use the Uniform Court System case management system. A subscriber is permitted to query the courts database by name and case number. The Circuit Court for Montgomery County also maintains a service for access to its database. In both cases governmental units of either the Judicial Branch of Government or the County Government administer the services. In Prince George's County the public is provided electronic access to the civil and criminal court records of the Circuit Court for Prince George's County through a subscription service administered by CourtLink by virtue of an agreement with the Prince George's County Government. Additionally the Federal Courts provide electronic public access to criminal and civil court records. With relatively few exceptions these programs have provided thousands of members of the community with electronic access to criminal and civil court records in an effective, inexpensive and efficient fashion. In addition the public has been saved thousands of dollars as the necessary travel to a court has been eliminated. THE LAW Generally the law and sound public policy favor a long-standing tradition of open trials. (1) This right is especially true when it is applied to criminal trials. The Supreme Court has stated, "A trial is a public event. What transpires in a courtroom is public property" (2). It is difficult to logically construct an argument that would make the court records of that "public trial" unavailable to the public unless there was a significant and compelling public policy need to do so. The public's right to court records is therefore derivative of the "public trial" element of dispute resolution as opposed to state or federal public information statues. As the public deals with substantial issues concerning the public trust and confidence of the courts, it would be a step backwards to curtail rather than advance the public's access to information concerning an otherwise open public proceeding. Moreover, if the records are available only upon a personal visit to the courthouse, the records are expensive and the public's access to courts is frustrated. Open access to courts and information contained in court records should be distinguished from "freedom of information" requests and government compilations of data such as criminal "rap sheets". The Supreme Court's decision in the Reporters Committee (3) case does not create a privacy interest in the underlying court records of a criminal case. It only protects a privacy interest in a "rap sheet" of an individual when the government is in control of a compilation of information from many underlying sources some of which may have been otherwise public criminal prosecutions. This distinguishing element is evidenced by the fact that the Federal Courts make criminal case records available by electronic access through PACER and private information providers such as CourtLink. As was pointed out in the Reporters Committee case, most states place substantial restrictions on the availability of criminal history summaries (4) ; nonetheless, 85% of the court systems accessible through CourtLink make information available about criminal cases. (5) CLASSES OF COURT RECORDS It is important to focus on what information is electronically available today as opposed to what might be available in future years. A court file contains various levels of information. First the file contains a docket of information. This docket is basically an index of the file, which identifies the parties, type of case and a summary statement of each document. The docket is commonly referred to as the court "record". Within each file there are also pleadings, which are documents, required to be filed by rule of court delineating a parties written case. Within pleadings there are exhibits, which support a parties case or sometimes provide information to the court from third parties. Currently, the only information kept by the court electronically are the court "records". Pleadings and exhibits do not exist in electronic format and are therefore unavailable to the public electronically. PUBLIC'S LEGITIMATE NEED FOR COURT RECORDS The public has many legitimate needs for court information, including attorneys, law enforcement agents, private investigators, insurance companies, title insurers, the media, financial institutions, securities firms, tenant screening and employment screening companies which use the service to find information critically important for their work. In a recent survey of Public Attitudes Toward Uses of Criminal History Information (6) it was concluded that, " there is substantial public support for making certain types of justice records available outside of the criminal justice system when there is a perceived rationale of public benefit and/or safety." In today's mobile society, it is common for citizens to move freely across state and county lines to conduct their business and personal affairs. The regional, and often national, nature of such activity highlights the need of individuals and businesses to have the ability to search the court records throughout the country. One illustrative case is that of Shawn C. Lowrance, an adopted 10 year-old child who drowned in October 1999. One of several articles published about this case in The News Tribune of Tacoma, Washington, described the facts concerning the adoptive parents: "As reported in The News Tribune, the couple had a troubled financial past, including two bankruptcy filings and the loss of their Lacey home to forestall a foreclosure. Criminal investigators became suspicious about [Shawn Lowrance]'s death when they learned the couple tried to collect a $650,000 in life insurance they took out on Shawn within a year of his death. An online search would have also turned another equally disturbing "red flag" - the 1993 arrest of the adoptive mother on suspicion of assault against her husband, Shawn's adoptive father. The couple didn't mention the incident while undergoing the adoption process. A Washington State Patrol background check turned up nothing because, unlike the online service [CourtLink], the State Patrol doesn't disseminate arrest records." (7) Had the adoption agency made an electronic search of court records prior to Shawn's adoption, it might have made all the difference for him. In fact, in the thirteen-page report of an independent investigation into the adoption, the six-member panel recommended that the Washington Department of Social and Health Services consider using CourtLink. It is common for law enforcement agencies to have criminal record information about witnesses while defense investigators and attorneys cannot obtain the same information unless they physically search each court record. The same is true for parties in civil litigation who desire to determine if a witness has a prior criminal record that would affect their credibility. The inability to find relevant information frustrates the "search for truth" and, ultimately, a just result. EFFICIENCY OF ACCESS Underlying much of the discussion concerning the public's trust and confidence in courts are the inefficiencies of the courts, which are directly related to a dependency on paper based work processes. It is also impossible for the many courts of the Baltimore-Washington region to make records available in one central location. A member of the public is therefore required to make a physical trip to the courthouse for information that is needed and available at the clerk's counter. Thus, there is a public need for commercial enterprises to provide information from courts in multiple states or regions through one system. Clerks' offices, Judges' chambers, and other judicial offices are not adequately staffed to handle the numerous requests for information; consequently the staff is frustrated from accomplishing its mission of dispute resolution, and the public is frustrated by having to spend more time and money to get the information needed to make legitimate business and personal decisions. Often citizens make decisions " in the dark" because they do not have the time or resources to search numerous court records. Facilitating and allowing responsible commercial enterprises to electronically access court records enhances the ability of the court to concentrate on its mission of dispute resolution and allows the public to access needed information at a lower cost. One such commercial enterprise is CourtLink the nation's leading provider of electronic public access to court records - an Internet pathway to and from the our country's courts. CourtLink has been providing electronic public access to court records since 1991. It currently provides access to over 1100 courts nationwide, including over 90% of the federal courts, and state courts in Washington, Oregon, New York, New Jersey, North Carolina, California, Texas and Maryland, among others. (8) Between January 1999 and October 2000, CourtLink's customers, who include law firms, corporations, financial institutions, government agencies and investigative firms, electronically accessed court records over 1.2 million times. CourtLink's over 30,000 customers include 90% of the top 250 law firms in the United States. In the Baltimore-Washington region, CourtLink provides electronic access to the U.S. District and Bankruptcy Courts in Delaware, Pennsylvania, Maryland, Washington, Virginia and West Virginia, and state courts in Delaware, Pennsylvania, Maryland and Virginia. Currently CourtLink has electronic access agreements in place for state courts that serve nearly 50% of the U.S. population. CourtLink's mission is to provide the public with better access to the nation's courts, while complying with legitimate determinations as to what information is public. OTHER APPROACHES Recently the National Center for State Courts conducted the Electronic Filing- Privacy & Public Access Conference 2000 in Las Vegas, Nevada. Over 300 judges and court managers were in attendance. (9) It is clear that the National Center for State Courts recommends that " all records and court data should be open for public review and access" absent a " clear showing of countervailing public policy or public individual harm." Of particular note is Vermont's recently concluded study of public access to court documents and adopted rules for public access to court records. Justice John A. Dooley of the Vermont Supreme Court addressed the conference to provide the benefit of that state court's recent experience. His advice was that policy decisions concerning access to court records should be an inclusive process. The Vermont study committee, for instance, had more non-lawyers and judges, including representatives from the media (print, radio, television), business and the other branches of government. Justice Dooley also made the following points:
There are many significant public policy interests, which need to be considered and protected. Some are already protected by statute and appropriate legislative bodies will consider more. Indeed, there are some in our society who would misuse information contained in court records. The remedy to protect the public, however, should not be to reduce access to public information when effective alternative methods exist. For instance, laws that prohibit harmful activity, such as criminal record profiling, and by punishing harmful conduct, can protect the public. Such was the approach of Congress when it enacted the Fair Credit Reporting Act. In addition a subscription agreement to access the records can be required to contain a provision against use of the information for prohibited purposes. This article first appeared on pro2net.com- www.pro2net.com 1 Privacy and Public Access to Court Records by Susan M. Jennen, National Center for State Courts Research Division, 1995 (an updated publication is scheduled for release in December 2000). 2 Richmond Newspapers, Inc v. Virginia, 448 U.S. 555,573 (1980) 3 United States Department of Justice et al. v. Reporters Committee For Freedom of the Press et al. 489 U.S. 749; 109 S. Ct. 1468 (1989) 4 Id at 753 5 See complete list at www.courtlink.com 6 Public Attitudes Toward Uses of Criminal History Information, Bureau of Justice Statistics, U.S. Department of Justice and SEARCH, The National Consortium for Justice Information and Statistics, May, 2000 7 "DSHS must make adoptions safer", The News Tribune, Tacoma, WA, June 28, 2000 8 See complete list at www.courtlink.com . 9 http://ctl.ncsc.dni.us/PublicAccess/E-FilingConf.htm . The national Center also maintains a Public Access to Records Web Site at http://ctl.ncsc.dni.us/PublicAccess/
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