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.
Arthur M. Monty Ahalt
Chief Industry Advisor