Open Government Advocates Call for Expanded Access to Mass. Court Documents

By Amanda Palmeira

palmeiraThe New England First Amendment Coalition and other open government advocates testified last week in favor of broadening access to Massachusetts court records, calling current limitations burdensome and a disservice.

“Public access to court records is not just a public benefit to the here and now – it is a part of this Commonwealth’s proud legal heritage,” said Jeffrey Pyle, an attorney at Prince Lobel Tye in Boston. Pyle spoke on behalf of NEFAC, the New England Newspaper & Press Association, Courthouse News Service and Bloomberg BNA. It may “be true that putting stuff online makes it more convenient and means less practical obscurity for those documents, making public dissemination of that information more likely. But that is exactly what our legal system intends,” Pyle said.

The state’s Trial Court Public Access to Court Records Committee held the public hearing on June 15. The committee is developing trial court rules that would govern the public’s access to court records. Open government advocates are concerned, however, that, among other things, there is a lack of public access to masscourts.org, a state-run website that intends to link courthouses across Massachusetts. Unlike its predecessor, this site provides docket information only to those with a Board of Bar Overseers number, effectively limiting the court records to attorneys.

NEFAC wrote to Superior Court Justice Peter Lauriat, chairman of the committee, on May 1 citing several concerns with the new system. You can read that letter here and read more of the coalition’s testimony at last week’s hearing here. Video of Pyle’s comments on behalf of NEFAC can be viewed here.

At the hearing, Scott Allen, an editor at The Boston Globe, addressed the difficulty of covering trial courts, calling the new system “not just an inconvenience for working journalists” but a “disservice to the public.”

Allen listed several ways Massachusetts courts make reporting more difficult:

  • There is a lack of computer terminals available for looking up criminal case information.
  • The fee for making copies of records is unreasonably burdensome.
  • Court clerks are often too busy to copy documents in a timely manner.

To improve access, Allen suggested that courts put as much information online as possible, treat all record requesters equally and minimize fees.

“For many journalists, charging even a few hundred dollars for access is really the same thing as telling them ‘no’ in the first place,” he said. “Treat electronic records the same as you would paper ones. Electronic filings should actually make everyone’s access to the information better and it should not be the reason to circumvent public scrutiny.”

Allen also voiced concerns about the committee’s reluctance to open its meetings to the public.

“There’s a larger mindset in the courts that views the public as a nuisance or as an afterthought, and the fact that this is your first public meeting after 19 months speaks to that fact,” he said.

Twenty-five individuals spoke during the hearing, and though the majority of speakers supported greater access, there were several who called for the preservation of privacy by maintaining the status quo. Their concerns included the potential conflict between expanded access to court documents and the protections provided by the state’s CORI system, the privacy needed by domestic violence and stalking victims, as well as the opportunity for those involved in court cases to rent or lease property without discrimination.

Attorney Denise Squillante described the potential harm that may occur by providing more access to court records involving children and domestic disputes.

“I have profound concerns about the balance between Internet access and privacy and the risk of harm,” Squillante said. “More importantly, I have serious concerns about the potential impact of what I’m hearing about open files having on children, in particular in probate court.”

Pyle, however, noted there are existing safeguards to protect these privacy interests. Massachusetts law allows for impoundment when there is good cause to protect the requesting party’s privacy, he explained.

“The law has been pretty clear, for a long time, that, strictly speaking, there is no privacy interest in court records and information that are publicly available in our courtrooms,” Pyle said. “There is no such privacy interest.”

Lauriat said all comments would be reviewed and that a draft of proposed rules would be given to the chief justice of the trial court. These proposed rules will then be posted for public comment and when the comment period ends, a final proposal will be sent to the Massachusetts Supreme Judicial Court.

Amanda is a rising second-year law student at New England Law | Boston and a summer intern for NEFAC. She can be emailed at amanda.palmeira@nesl.edu.

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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. Donations can be made here. Major Supporters of NEFAC for this year include: The Robertson Foundation, The Providence Journal Charitable Foundation, and Boston University.

 

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