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By Lyndsey Wajert
Many public records such as real estate documents and police logs are conveniently found online. But most New Englanders in need of judicial records must still travel to individual courthouses, submit requests to a clerk, and then scan or copy the pages they receive on site for future use elsewhere.
It’s a dated system and change, if any, is coming slowly.
What’s taking the courts so long to provide online access?
An increasing number of states across the country are beginning to put records online. But many are still stuck in the old system, usually because of a lack of funding or concerns over privacy. Or both. It’s the latter that’s particularly troubling for journalists and open government advocates who see great benefits to having court records accessible online. These are public records, they argue, and it shouldn’t matter where they are located. If they are deemed public, they should be available to the public in the most accessible, efficient way possible.
But if the records are public and available at courthouses already, why then the concerns over privacy?
Essentially, the accessibility of the Internet has government officials and citizen groups concerned. Some have noted that placing court records online — and making them easily accessible to more people — increases the likelihood that reputations will be harmed and the information misused. It’s better, some states contend, to maintain “practical obscurity,” or keep barriers in place that prevent wide distribution of certain public records. Removing physical boundaries and time constraints, they argue, will allow citizens with dubious intentions to more easily get access to sensitive information.
I can get federal court records online. Why the concerns over state records?
Many federal court records are available through the Public Access to Court Electronic Records, or PACER, system. But given the sensitive types of local cases state courts handle — such as probate and juvenile matters, for example — privacy concerns seem more pressing.
What are state courts doing to address these privacy concerns?
Many states are trying to balance transparency and privacy interests by restricting online access to certain groups of people, like attorneys or litigants. Others simply keep offline records with sensitive information, such as those involving domestic abuse, child abuse, guardianship or juvenile criminal proceedings. New York limits the amount of personal information available in state judicial records and places the responsibility for removing sensitive information on the filing attorneys and litigants. Minnesota has a similar system. Other states have placed the burden of choosing which records to release or redact on law clerks working in individual courthouses. Maine is currently debating how to best move its own court records online, considering a proposal that would limit public records to attorneys and litigants.
Privacy is important. If these records can be obtained at the courthouse anyway, why do they also need to be online?
Transparency, accountability, and public education. Open government and freedom of information groups have noted that journalists, strapped for time and resources, should not be forced to deal with the delays of accessing records at the courthouse. By extension, members of the public should be able to find records online about matters they find important. This information is needed to hold the judicial branch accountable and protect the public’s right to know. Educators, government officials, and lawyers will also have better access to these documents online, facilitating research and a better understanding for everyone about how our court system works.
Want to learn more?
• NEFAC Testifies Against Plan Limiting Public Access to Maine Judicial Records, Defends Right to Know
• NEFAC Continues to Suggest Improvements to Mass. Trial Court Public Record Rules
• Mass. Trial Court Public Access to Court Records Committee
• Reporters Committee for Freedom of the Press Open Courts Compendium
• National Center for State Courts
• “Protecting the Treasure: An Assessment of State Court Rules and Policies for Access to Online Civil Court Records”
• “Privacy and Court Records: Online Access and the Loss of Practical Obscurity”
• “Online Case Resolution Systems: Enhancing Access, Fairness, Accuracy, and Efficiency”
• “Privacy and Court Records: An Empirical Study”
Lyndsey Wajert is a second-year law student at Boston University School of Law.
NEFAC was formed in 2006 to advance and protect the Five Freedoms of the First Amendment, including the principle of the public’s right to know. We’re a broad-based organization of people who believe in the power of an informed democratic society. Our members include lawyers, journalists, historians, academics and private citizens.
Our coalition is funded through contributions made by those who value the First Amendment and who strive to keep government accountable. Please make a donation here.
Major Supporters of NEFAC include the Barr Foundation, The Providence Journal Charitable Legacy Fund, The Robertson Foundation, Lois Howe McClure, The Boston Globe and Boston University. Celebration Supporters include The Hartford Courant and the John S. and James L. Knight Foundation.