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April 2001 – Online Court Records Let the Sunshine In Special to the Seattle Times

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April 2001 – Online Court Records Let the Sunshine In
Special to the Seattle Times

By: Hon. Arthur M. Monty Ahalt
Special to The Seattle Times
Wednesday, April 25, 2001, 12:00 a.m. Pacific
Are public records in danger of becoming too public?
This is the paradoxical question now being deliberated by the policymakers for our nation’s courts. Depending on their answer, the judicial branch could soon retreat from operating in full sunshine, and an opportunity to make our legal system more efficient, fair and accountable could be lost.
The question arises because courts are going online. Many now convert paper documents into computer files and make them accessible over the Internet. A growing number of jurisdictions are saving a step by allowing attorneys to file documents in electronic form. For a few dollars, anyone connected to the Net can now search through more than 200 million records from more than 1,300 federal, state and local courts across the country.
This represents a dramatic change for jurists who, by nature, are appropriately cautious. Although the public’s right of access has long been established under common law, court records have always languished in “practical obscurity,” as the Supreme Court once put it. Accessing them involved a trip to the courthouse and often a lengthy, frustrating search through sketchy indexes.
Now that a few minutes on the Net can, for example, produce the names and addresses of Americans who have filed for personal bankruptcy during the past month, judges are pondering the privacy and security implications. The Judicial Conference of the United States, which sets policy for the federal courts, is considering whether to impose special restrictions on electronic access.
That would be a mistake. New technology does raise important issues, in light of which the courts should carefully examine their rules and procedures. But legitimate concerns can be addressed without curtailing access, a step that would sacrifice important public benefits.
Concerns are raised, for example, about disclosure of personal financial data in bankruptcies and of embarrassing allegations in pending divorce actions. Parties in such cases have never enjoyed real privacy, the records being open to anyone, if only at the courthouse. But any party may ask that specific documents be sealed, and judges have wide discretion to so order. This is equally effective against courthouse snoops and nosy Web surfers.
Concerns also arise because electronic records may be searched and analyzed in ways that cause mischief. A stockbroker might be able to prospect for lucrative new accounts from lists of plaintiffs recently receiving damage awards. But if such data mining is a misuse of public records, the appropriate solution is not to partially privatize the records, but to enact laws against the misuse. It should be illegal regardless of whether the means are electronic or involves a spy inside the court clerk’s office.
Discriminating against new technology would merely gloss over pre-existing problems inherent in managing court records. It could further weaken public trust and confidence in the judiciary. And it might put courts on a slippery slope away from government in the sunshine and back toward star-chamber proceedings.
Wide electronic filing and retrieval can enhance transparency and accountability. Citizens will be better able to monitor the courts and uncover disparities in the meting out of justice. The scrutiny may be discomfiting, but it is democracy at work.
Electronic filing and retrieval also can improve the legal system’s speed and efficiency. By one estimate, the annual cost of civil litigation in America exceeds $150 billion, much of it for searching and producing documents. Like other industries that have achieved big savings as information technology has boosted productivity, the law too will gain as more courts go online and more attorneys adapt to new ways of working. Justice can be less costly and more swift.
It can be more equal, also. Plaintiffs’ attorneys and those from small firms have been among the most vocal in opposing restrictions on electronic access. They know the Web is a powerful tool that helps to level the playing field against better-funded adversaries who can marshal platoons of researchers to dig through acres of documents in widely scattered venues.
And even those of us who never go near a courtroom can benefit from improved due diligence enabled by electronic access to court records. I am associated with a company, CourtLink, that provides such access. Its customers include not only 90 percent of the nation’s largest law firms, but also banks, insurance companies, landlords, personnel departments and the news media.
Two years ago in Washington state, a 10-year-old boy drowned under suspicious circumstances while on a fishing trip with his adoptive father, who shortly before had taken out a $650,000 insurance policy on the boy’s life. The state agency that had placed the child said it had no reason to think the adopting couple was unfit. But a 15-minute CourtLink search by a reporter for The News Tribune in Tacoma uncovered the couple’s prior history of domestic violence, bankruptcies and check kiting. The state now has begun doing online background checks on persons seeking to adopt.
Court records are a public asset whose full value technology is helping to unlock. Too public? Not at all.
A retired circuit court judge in Prince George’s County, Maryland, Arthur M. Monty Ahalt is chief industry advisor to Bellevue-based CourtLink Corp., a provider of Web-based services for filing, retrieving and monitoring court records Judge Ahalt also writes a monthly court technology column- Virtualcourthouse.com on the web at www.montyahalt.com.
This article first appeared in the Seattle Times on Wednesday April 25, 2001

March 2001 – Testimony before the Subcommittee on Privacy and Electronic Access to Case Files

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March 2001 – Testimony before the Subcommittee on Privacy and Electronic Access to Case Files

Testimony before the Subcommittee on Privacy and Electronic Access to Case Files – Judicial Conference of the United States
Judicial Conference of the United States
March 16, 2001

Good morning. Thank you very much for allowing me this opportunity to provide you information concerning the important topic of public access to court information. I appear before you today as Chief Industry Advisor of CourtLink- the online link to our nations courts and the first and only company to provide an online platform for retrieving court records and filing legal documents. It would also be helpful for you to know that I have been a member of the bar for 33 years. Last year I retired as a Judge of the Circuit Court for Prince George’s County after serving for over 17 years. During my term as a Judge I served as Chair of the Courts Technology Committee and was instrumental in the establishment of the open records policy of that court. In addition I assisted in the planning and implementation of the State’s first on line electronic public access service to the citizens. That service P.G. Online was a public private partnership with the Circuit Court for Prince George’s County, The Prince George’s County Government and Intelligate, a subsidiary of Bell Atlantic.

Since retirement from the bench I have entered the private sector as an arbitrator, consultant, and a member of the Board of Directors of CourtLink appointed their Chief Industry Advisor. In addition, I also author a monthly technology column -VirtualCourthouse.com – delivered via the Web, which I began 4 years ago. See http://www.montyahalt.com. Lastly, I have served as a member of the faculty of the Institute for Court Management of the National Center for State Courts teaching courses to judges and court managers on Public Access Issues and Technologies.

As courts and legal professionals grapple with the causes of the public’s decreasing public trust and confidence in the courts of this nation, it is appropriate that we are discussing a policy which promises to increase the public’s access to courts rather than decrease access. Restricting the public’s access to court records commences the slippery slope to an incremental privatization of an otherwise public proceedings- a cornerstone of freedom.
As you commence your deliberations I believe that you have correctly focused on what might be available in future years as opposed to what is available electronically today. As you are aware a court file contains various levels of information. The file begins with 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 party’s written case. Within a pleading there are exhibits, which support a party’s case or sometimes provide information to the court from third parties. Currently, the only information kept by the court electronically is, court “records”. Pleadings and exhibits do not exist in electronic format and are currently unavailable to the public electronically.

At the outset, several guiding principles should be the focus of attention.

Court records, are public records: The business of courts is public. Closed hearings and records generated are reserved for situations where there are specific compelling reasons to protect compelling individual privacy rights over the greater common good of open government. (i.e. juvenile proceedings, civil commitment proceedings, grand jury proceedings). Further, courts have always had the discretion to interview witnesses, take testimony or seal court records under appropriate circumstances. Where not required by law, attorneys can apply to judges for such orders. An electronic environment facilitates and makes this process easier.

Court Record Reform: Within a public court record, regardless of the medium used to access that record, there is much personal information contained – there always has been. The issue at hand is not how a public record is accessed; rather it is about setting guidelines to determine what information should be contained within a public court record and what information should not be permitted in a public record.

The difference is accessibility: Court records have not changed. Court records are already available as they always have been. Travel costs, copying charges and waiting in line all become access prohibitive. That’s not really public access.

Legitimate public need for court records: Law enforcement, the media, financial institutions, attorneys, government agencies and, tenant and employment screening companies are among those who use public record information to conduct business. In early 2000, in Washington State, an adoption agency failed to uncover that a foster mother had been previously arrested on assault charges and that she and her husband had a troubled financial past. The adopted 10-year-old later died under suspicious circumstances. Had the agency conducted a thorough background check, using a service such as CourtLink’s, it may have prevented the boy’s death through uncovering red flags.

Several months ago I attended the Electronic Filing- Privacy & Public Access Conference 2000 conducted by the National Center for State Courts in Las Vegas, Nevada. Over 300 judges and court managers including representatives of your committee participated. The National Center also maintains a Public Access to Court Records Web Site at http://ctl.ncsc.dni.us/PublicAccess/. I would commend your continued study of this comprehensive compilation of materials by the leading experts in the nation. From these materials you will find 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 help will be 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 an account of the benefit of Vermont state court’s recent experience. His advice was that policy decisions concerning access to court records should be an inclusive process. For instance, the Vermont study committee had more non-lawyers and judges, including
representatives from the media (print, radio, television), business and the other branches of government, than legal professionals.

Justice Dooley made the following points, which have equal application to the Federal Courts:
Electronic access is a trap – the issue is public access
Things that are wrong on the Internet have been wrong in the paper world
Technology is more of a solution, 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 , which will increase the public’s trust and confidence in the Judicial Branch of Government. Thus,
More Access is better than restricted access. Open is better than closed.
The public has legitimate need for access to 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.

In summary, I urge the committee to recommend the broadest form of electronic access to the public’s records of public proceedings in the nations Federal Courts. Such a policy of open access to court records will increase the public’s confidence that the disputes of its citizens are concluded fairly, justly, impartially and expeditiously.

Thank you very much.
Respectfully Submitted
Arthur M. Monty Ahalt
Chief Industry Advisor
CourtLink

Issue 6.3 A Vision Supporting Multiple Providers of Electronic Filing to Multiple Courts

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VirtualCourthouse: Issue 6.3
A Vision Supporting Multiple Providers of Electronic Filing to Multiple Courts

 Judge Arthur M. Monty Ahalt (Ret.) – March 2001


As electronic filing of court documents moves from the pioneers to large-scale adoption, it has become clear the task is much larger than first imagined. The pioneers have experimented with the technology and the market over the last 8 years, and to date less than 1% of court documents are electronically filed. As the pioneers have experimented, several models have evolved:
• Closed systems – the individual filing must comply with the requirements of one provider, regardless if the provider is public or private. Such systems typically require specialized software.
• Internet systems – the individual filing does not require specialized software rather an Internet connected computer equipped with a Web browser.
Further delineation may also be made with respect to who is managing and supporting the process:
• Public systems – those designed, managed, supported and maintained by a governmental agency.
• Private systems – those designed, managed, supported and maintained by a private non-governmental agency. Such systems must ultimately interface with the public systems of the courts
While each approach has its advantages none of these models have proven effective in creating the volume of electronic filing necessary to create the productivity savings, which dramatically improve the administration of justice. Underlying the debate of the most appropriate method to create a significant critical mass is the issue of how a court will be best able to manage and control the workflow of electronically filed documents. Those on the private side argue the Court controls the electronic documents by contract, not possession. Those on the public side argue the Court cannot adequately discharge its governmental function unless the Court has physical control of the electronic documents.
MULTIPLE PROVIDERS-MULTIPLE COURTS
What is needed is an approach, which encourages a variety of models – both public and private – for the electronic filing of court documents. This in part has been the motivation behind Legal XML discussions and projects. To proponents of XML, the use of this technology will deliver open systems to the Justice Community. This notion however ignores three real compelling factors. First; XML is an approach using the Internet for easier data integration between applications and organizations – a common language that helps to define and resolve differences among dissimilar data structures. That said, XML is not an application that can help courts receive, process, interact with, manage and ultimately transfer and integrate the incoming data to its backend systems. Rather XML is simply a methodology to describe data in a standard, non-application specific manner. Second; XML does not deal with the issues of marketing, education and support in order to drive adoption and motivate the legal community to integrate electronic filing into their existing work and business processes. Third; XML does not answer the question of who pays for and supports the administration of systems that will monitor the electronic transactions from multiple and diverse public and private providers.
Defining a standard for the data contained in a document is an essential first step in formulating an open electronic filing process. However, since there are hundreds (if not thousands) of specialized court systems that house this data, there is a real requirement that each of these systems be modified (or new systems created) to receive the data. The process will only move as quickly as money and programming resources allow for each court system to make the necessary changes. If an entity were to take on the daunting task of creating the necessary specialized software interface required by each court system, then any individual filer, e-filing software vendor or public agency could simply submit the filing in a clearly defined format. Software of this type is known as “middleware”. E-filing middleware presents a standardized input methodology and contains the necessary specialized code to prepare and submit incoming data in a form required by each specialized court case management system.
THE VISION
It is this expertise, which CourtLink Corp. (1) has introduced into the market via its JusticeLink middleware product named eFM. eFM offers the following functionality:
§ Front-end XML transaction connectivity.
The software(Application Interface-API) is written to read and write XML transactions to generic front-end systems. The format is open, (XML Filing Protocol, a.k.a. “XFP”), and is very similar to the LegalXML Court Filing Standard 1.0 (CFS 1.0) (2).
CourtLink is committed to adding support for the CFS 1.0 as soon as practical after its formal approval as a recommended standard. CourtLink’s middleware approach anticipates the need to support multiple versions of multiple standards simultaneously in the future.
§ CMS Back-end XML transaction connectivity.
The transactions required for use in the CMS are supported by XML transactions between eFM and the CMS. CourtLink refers to this as a “CMS Adapter”. The only released adapter as of 10/31/2000 is for SCT Courts version 3.1. (3)
§ DMS/IMS Back-end XML transaction connectivity.
eFM supports an integrated DMS interface to FileNET and OTG image management systems, allowing for the documents transmitted to eFM to be written to the DMS.
§ Court Clerk functionality.
In order to file at any specific eFM-enabled court, a user must be ‘registered’ with the court. This is accomplished via a ‘registration’ XML transaction that can be generated by the eFILE provider. EFM supports multiple eFILE providers simultaneously, and a filer (attorney) may use more than one eFILE provider with the same court, if desired. Additionally all ‘submissions’ are available to the clerks for review, (and appropriate changes), before docketing and commitment to the DMS. eFM provides a robust set of capabilities to assist the clerk with processing filings in a fast, accurate fashion.
§ Automated Electronic Receipt/Face sheet
An electronic face sheet is automatically prepared by eFM and pre-pended to the filing. A copy is also returned as part of the XML receipt to the electronic filing system. All filings (original and subsequent) are manipulated by the clerk in eFM. All acceptance, rejection, changing of data, adding parties, fee control, document hierarchy manipulation, etc., is accomplished through the eFM provided web interface.
CourtLink’s eFM solution accepts filings from multiple e-filing providers and contains the necessary procedures to integrate with any court case management system, once the appropriate adapter has been created (4)
. A court using this approach will be able to accept e-filings in accordance with it’s own local protocol, from multiple private providers, such as CourtLink, Westfile, and any other provider. This approach allows the Court to attract the greatest number of electronic documents. The court is free to elect to physically control and manage its electronic documents or to contract with a service provider to perform this function for the court. Thus providing for the greatest possible number of users – allows for the application of the highest common denominator rather than the lowest common denominator.
THE WISDOM OF OPEN SYSTEMS
Instruction for the wisdom of a policy such as this can be drawn for the experience of opening up the Internet and the consequential explosion in its use. The Internet began as a private government-only network, which served the scientific and educational community under the auspices of the National Science Foundation. At the urging of the business community the National Science Foundation began to open up its network to commercial users and then in 1992 Rep. Rick Boucher (D- VA) introduced legislation declaring the Internet open to public competition. The NSF backbone was retired as a not-for-profit entity and was replaced by system of commercial network access points connected to one another. As the government no longer needed to spend scarce resources supporting the Internet, use of the Internet and subsequently the World Wide Web, has grown exponentially. This should be a valuable and instructive lesson for courts desiring to dramatically increase public access and create vast productivity and efficiency gains in the administration of justice.

1 See http://www.courtlink.com

2 LegalXML donated significant parts of the XFP protocol to the public domain for use. These pre-date the LegalXML v1.0 proposed standard.

3 EFM Adapter for SCT Courts 4.0 is scheduled to be released in mid-2001. Other adapters are in development, and the adapter “API” will also be published in approximately the same timeframe.
4 CourtLink can also implement eFile with courts that are not ready for integration, and/or where an adapter is not available. The company has a multi-tier service offering that the court can use to “phase in” deep integration.

Issue 6.2 Five Commandments of a Trial Lawyer

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VirtualCourthouse; Issue 6.2
Five Commandments of a Trial Lawyer

Judge Arthur M. Monty Ahalt (Ret.) – February 2001

Last fall (October 2000) the District of Columbia Trial Lawyers Association invited me to speak at their regular monthly meeting as a retired Judge, I was ask to be open and frank in commenting on how trial lawyers could improve their performance in front of a judge and a jury. The theory was that I as a retired Judge would have a greater liberty in speaking the truth undeterred by the notion that a lawyer in the audience might be appearing in front of me the next day. In reflecting on my 17 plus years on the bench — some 750 jury trials and countless motions hearings and court trials — it became obvious that most of the dos and don’ts of persuasion could be summarized in five points which I have titled the Five Commandments of a Trial Lawyer.

Rather then allowing a negative impression to control the thought process, I put the commandments in not only in the negative -Thou Shall Not, but also the affirmative – Thou Shall.
Overriding these five commandments is the principle, rule and law of First Impressions. Most every thing we do in life is affected by this principle. The principle recognizes the importance of our ability to record and remember prior occurrences. This historical memory has an impact on our future actions – for better or worse. For the trial lawyer as for any sales person this can be critical. A Judge or a jury will be affected by their first impressions of a lawyer. It is important to recognize that first impressions do no just begin in the courtroom. They start with the first interaction whether that be, a letter, a pleading, a telephone call, a social event, a parking lot occurrence, an interaction with court staff, or the opening statement. Now, most Judges and for that matter jurors desire to be fair so they naturally try to protect against first impressions being controlling. However when a pattern starts to show itself there is no turning back the powerful implications of this law of human nature.
I. THOU SHALL NOT BE A PRESENTER . . .
. . . THOU SHALL BE A PERSUADER
So how is it that a lawyer becomes a persuader and not just a presenter? How does a lawyer move from the bottom 80 percent of the class to the top 20 percent of the class?
Lawyers regularly come back to chambers after a trial and want to know how they did in their performance. Whether they have won or lost they want their performance critiqued. First, I point out that winning and losing a lawsuit is not a measure of professional skill. Good persuaders cannot overcome bad facts and law. Nor can poor persuaders destroy good facts and law. Moreover, the dynamics of a jury trial often allow a jury to overcompensate for poor lawyering. What trial judge has not been told by a jury – “boy that lawyer was just horrible but we could not hold it against the client.” Often they even add “can we make sure the lawyer doesn’t get paid.”
Second, I tell the inquiring lawyer that to become a top-notch trial lawyer, you have to make it your professional zeal to study the art of persuasion. You need to make it the object of your attention every waking hour of the day. That means you have to read about the art, observe the practice of the art, study the art and practice the art. If you haven’t been to a trial practice weeklong course, you need to put it at the top of your priority list. If your employer will not pay for it, you need to save the money and take a week’s annual leave. If it is essential, a true professional will make it their personal professional priority.
Third, you have to understand the elements of persuasion.
The elements of persuasion were first established 2000 years ago by Aristotle, the father of persuasion. Those elements are: (1) believability; (2) sympathy; and (3) logic. For a more complete treatment of this commandment see VirtualCourthouse Issue 4:6, June 1999 .
II. THOU SHALL NOT VERBALLY FIGHT . . .
. . . THOU SHALL TREAT EVERONE FAIRLY

Key to being a persuasive individual is to be viewed by the decision maker as a fair individual. There is nothing more detracting from the logical thought process as a verbal fistfight. A lawyer who gets in verbal fistfights on frequent occasions simply is not believable to a Judge or Jury. This dynamic may not apply to the occasional battles usually attributed to the frustrations of trial work. It is the frequent pattern that exists with some advocates, which cause a judge to ignore the persuasiveness of the lawyer. Picture yourself being the judge assigned discovery motions. You see this one particular lawyer have a verbal fight every week. Why would you put any weight in what that lawyer had to say about any given point? I must say that it is a constant battle for a Judge to divorce the annoying and distracting tendencies of lawyers from the clients right to have a fair trial, but in the final analysis it is the client who chose the lawyer and is therefore going to be affected by the good traits as well as the bad traits of the individual lawyer.
III. THOU SHALL NOT CITE AN UNREAD CASE . . .
. . . THOU SHALL BE A STUDENT OF THE LAW
The sloppiness with regard to legal research and citations is unbelievably frequent. It is a rare that a lawyer’s word on the law can be trusted, not because of purposeful misleading statements, but simply sloppiness. This is perhaps the most single important attribute of a trial lawyer—believability on the law. Sadly, very few lawyers possess this attribute. Lead a judge astray on the law-on purpose or by neglect – results in never being able to win an important point of law in a real important case. It is as if lawyers have not read the rules of professional conduct.
Rule 3.3. Candor toward the tribunal.

(a) A lawyer shall not knowingly:.

(1) make a false statement of material fact or law to a tribunal;. …..

(3) fail to disclose to the tribunal legal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel;
And the comments to the rule state:
Misleading legal argument. — Legal argument based on a knowingly false representation of law constitutes dishonesty toward the tribunal. A lawyer is not required to make a disinterested exposition of the law, but must recognize the existence of pertinent legal authorities. Furthermore, as stated in paragraph (a) (3), an advocate has a duty to disclose directly adverse authority in the controlling jurisdiction which has not been disclosed by the opposing party. The underlying concept is that legal argument is a discussion seeking to determine the legal premises properly applicable to the case.
See Maryland Rules of Professional Conduct, Rule 3.3.
To make sure you do not fall into this category you need to become a student of the law.
IV. THOU SHALL NOT BE SLOPPY . . .
. . . THOU SHALL ALWAYS DRESS PROFESSIONALLY
Ah- the age of the Internet. Casual is better and besides that it is more comfortable. But casual versus formal is only half of the question. A sloppy lawyer is not a persuasive lawyer whether it is the dress, the organization of the pleadings, and the use of the counsel table in the courtroom or the car, which jurors see in the parking lot. Of course part of the problem is generational. I remember my parents complaining about my dress. How could I wear blue jeans on a Saturday night – they wanted to know. I also remember that the top-notch winners always looked like a million dollars and usually were paid a million dollars. My father -in law Blair Smith, a former States Attorney, and a superior trial lawyer, was known for his superior dress and his winning way in the courtroom. He would walk into a room with the Governor and people would want to know who was with Blair. The point is -your dress does make a big difference as well as your general organization. The better you dress the better you perform and the more persuasive you are with jury, judge and client. The more cases you will also win.
V. THOU SHALT NOT TRY TO SELL AN UN-SELLABLE POINT . . .
. . . THOU SHALL PICK ISSUES STRATEGALLY
This last commandment could be the sleeper and the most important. Oh – the agile mind of the lawyer. Give a lawyer enough time and how many issues can he come up with. Sometimes it seems endless. Put three partners in a room and more than the power of three compounds the problem. And then there is the shot-gun approach. Rarely does this approach help achieve a win. In fact the approach usually results in the judge or jury not taking any one issue seriously. A top 20% lawyer will pick the two or three most important issues and keep hammering them home. Even though unpersuasive in the present case the lawyer’s credibility is preserved for the next case.There is an art to making points for the purpose of preserving the rights of your client.The point is that you do not have to spend any time talking about them once they are preserved.
CONCLUSION
I am confident that if you follow these five commandments that you will start achieving greater results in the courtroom and then more clients will be knocking at your door.

Issue 6.1 Open Access to Court Records

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VirtualCourthouse: Issue 6.1
Open Access to Court Records

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:

  • 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

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 athttp://ctl.ncsc.dni.us/PublicAccess/