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:
Electronic access is a trap - the issue is public access.
Technology is more of help than a problem.
The job is never done- there needs to be a continual assessment of evolving
technology.
The clear evolving national consensus is that Internet technology is
providing the public with greater access to courts inexpensively and with
virtually no harm. Thus,
More Access is better than restricted access.
The public has legitimate need for court records.
Technology can provide the pubic with court records more efficiently and at a
lower cost.
Restricting public access to court information is not necessary to protect
the public from misuse, as other effective alternative methods exist.
ALTERNATIVE METHODS OF PROTECTING PUBLIC POLICY
INTERESTS
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
Previous articles are available at www.montyahalt.com/articles/vc/vc.htm
.
Contact; Arthur M. Monty Ahalt
amahalt@virtualcourthouse.com
301-218-2030
1.
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.
2 Richmond
Newspapers, Inc v. Virginia, 448 U.S. 555,573 (1980)
3.
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.
4 Id at 753
5.
5 See complete
list at www.courtlink.com
6.
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.
7 "DSHS must make adoptions
safer", The News Tribune, Tacoma, WA, June 28, 2000
8.
8 See complete list at www.courtlink.com
.
9.
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/
