Speakers make case for Web access to public records

By Christy Mumford Jerding
freedomforum.org

ARLINGTON, Va. — The medium makes all the difference when it comes to access to public court records, several panelists said today at the National Freedom of Information Day conference.

"Any one of you can go down to the courthouse, report to the clerk, look up [a case] ... sit down at a desk and spend as little or as much time as you like" reviewing court records, Judge Rudolph Kass of the Massachusetts Supreme Judicial Web Advisory Committee said at the conference’s opening session at The Freedom Forum World Center. "But it’s work" to get the information. The U.S. Supreme Court once referred to this laborious process when it noted the "practical obscurity" of public court records, he said.

"The difference with putting [such records] on the Web is that you are now in the publication business," Kass said. "Suddenly you’re disseminating [details] where they’re very easily available." This, he said, can lead to problems over privacy concerns.

For example, "a motion for discovery for prior false accusations of rape. It has an innuendo that there were prior false accusations of rape. ... But it’s really just a discovery motion," Kass said. Making judgments about posting such information to the Internet is particularly difficult for courts that deal in domestic and family affairs. "Should our neighbors be surfing the Internet at 11 o’clock at night to see what we’re doing? And therein lies the problem."

But Kass’ reference to "practical obscurity" is "a totally misplaced argument," lawyer Bob Becker said. "We have to have public access to these records. The media and ... individuals use this information in order to accomplish a variety of business purposes, informative purposes. To make it more difficult for them to do that simply defeats the purpose of public access.

"I don’t think [the medium of access] should make any difference. People need access to these records."

Furthermore, Becker said, "any lawyer who wants to keep information secret [still may] ask for a protective order to keep it out of the public record because otherwise somebody will find it, it will get out" whether the information is on the Internet or not.

The conflict between the need for public access and privacy concerns isn’t new, said Carol Melamed, The Washington Post’s legislative affairs counsel. "We could have had the same debate when the printing press was invented, when the typewriter was invented, when the Xerox machine was invented, and when the fax machine was invented."

Carol Melamed

The fact that the records are posted on the relatively new medium of the Internet is "a consideration," she said, "but not necessarily the determinative consideration."

"We take for granted the importance of public observation of court proceedings. ... Why is public observation so important? ... Because members of the public need information on the courts," Melamed said. "Who won the million-dollar product liability (case)? Who was convicted if someone you know was murdered?"

Besides information about the outcome of court cases, Melamed said, ease of access also is important to the public’s ability to "observe the function of the court" itself. For example, because of Web access to information on death penalty cases in Illinois, the Chicago Tribune exposed a system riddled with wrongful convictions. As a result, the governor declared a moratorium on executions until the system could be examined.

"The only way you can know that is by the kind of systematic access to court proceedings that are available to us" electronically, Melamed said.

David Sobel of the Electronic Privacy Information Center, who also has litigated Freedom of Information Act cases for clients, said, "For absolutists on either side of this question, [the solution] might be easy. But for those of us who take into account that there are two very important, sometimes competing interests here, it is very difficult."

The medium does matter, Sobel said, because "clearly there is a difference in the potential harm if you’re talking about something that’s sitting in a dusty court file ... or readily available on the Internet."

An recent example of information that could cause harm, moderator Bill Ketter of The Boston Globe said, is the recent case of the Orlando (Fla.) Sentinel’s request to view photographs of the autopsy of race car driver Dale Earnhardt. Earnhardt’s widow asked the court to seal the photographs because, if released even in a limited way, the images could eventually make their way to the Internet.

But Melamed said this example "is beside the point when you’re talking about court records."

"If there were a murder charge submitted against the seatbelt company, then I would submit that the autopsy photos ... might well be subject to public inquiry," she said.

Solutions, she said, should be "narrow, tailored and carefully thought through" instead of "broad-brush" actions that would limit areas of access altogether.

A balance needs to be struck, Sobel agreed. "There clearly would be a different determination if you were talking about President Kennedy’s autopsy information as opposed to a private citizen.

"What sometimes gets lost in this debate is the reason why we all support openness," Sobel said. "It’s primarily to tell us something about how the government is functioning. That’s not always true with respect to some of the information that becomes part of these debates."

Ketter asked the panelists whether "there is anything in public court records that should be off-limits to the Web."

Yes, said Becker. He cited checking account numbers and Social Security numbers.

Kass said his Web advisory committee’s approach has been to start with court dockets — which are not "dreadfully invasive" — and then move into other areas gradually.

Although he and other members could imagine "horrible" scenarios from putting records on the Web, more often than not, nothing adverse has happened as a result, he said.

"The Web is an amazing opportunity to enable the public to analyze what’s going on in the courts," Melamed said. "I think it’s wise to put it up."