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
