make case for Web access to public records
By Christy Mumford
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 conferenceís opening session at The Freedom Forum World Center.
"But itís 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 youíre
disseminating [details] where theyíre 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 itís 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 oíclock
at night to see what weíre doing? And therein lies the problem."
But Kassí 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 donít 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
isnít new, said Carol Melamed, The Washington Postís 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."
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 publicís 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
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
The medium does matter, Sobel said, because "clearly there is a
difference in the potential harm if youíre talking about something
thatís sitting in a dusty court file ... or readily available on
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.) Sentinelís request to view photographs
of the autopsy of race car driver Dale Earnhardt. Earnhardtís widow
asked the court to seal the photographs because, if released even
in a limited way, the images could eventually make their way to
But Melamed said this example "is beside the point when youíre
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
Kennedyís 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. "Itís primarily to tell us something
about how the government is functioning. Thatís not always true
with respect to some of the information that becomes part of these
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
Kass said his Web advisory committeeís 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
whatís going on in the courts," Melamed said. "I think itís wise
to put it up."