Safeguarding public access to court files

Sunshine Week

The Public's Right To Know

March 12, 2006|By JAMES S. KEAT

For centuries, Americans have had the right to inspect almost all records filed in their courthouses. All they had to do was go there and ask.

Now that court records are increasingly stored in computers, accessible from people's homes through the Internet, this cherished right is under attack.

For example, advocates for personal privacy and victims' rights argue that the easy access to court files, particularly in criminal cases, is unduly intrusive and potentially hazardous. The serious problem of witness intimidation in Baltimore and elsewhere has heightened their concerns.

Across the nation, attempts are being made to close all or parts of court files, even, in some cases, the paper records that have always been open to public inspection. In Maryland, the battle is being fought in the General Assembly and in the Court of Appeals, which makes the rules for the state judiciary.

Today marks the opening of Sunshine Week, an annual celebration of open government - often called "government in the sunshine" - marking the birthday Thursday of James Madison, author of the First Amendment. More than 750 news organizations participated last year.

The public access issue has been debated in Maryland for more than five years. Three committees, acting under the aegis of the Court of Appeals, have studied it. Eventually, the court decided essentially that electronic records should be treated as have paper records historically.

But some organizations have balked at the court's treatment of victims' and witnesses' personal information. They particularly seek the withholding of information such as names, addresses and telephone numbers unless a judge orders it to be released after a hearing. (Disclosure note: I was the victim of a violent street crime.)

Another approach, which some open government advocates reluctantly have accepted, would bar access to this information on the Internet but would permit the public to inspect uncensored records on computer terminals in courthouses, in effect giving them the same access to electronic files as they now have with paper records.

The Court of Appeals has decided to permit full access on courthouse terminals but limit all personal information except names from Internet access. A bill that could supersede that is pending in the legislature.

(Last week, the court announced the opening of a Web site, http:--casesearch.courts.state.md.us, that will provide some information from the civil and criminal case files of most Maryland circuit and district courts.)

The privacy arguments are pretty thin. There are many court decisions on constitutional grounds that say public access to the kind of information that is part of court hearings can't be limited for this reason.

Victims' rights advocates and prosecutors contend that victims and witnesses are put in harm's way by disclosing their identities or where they can be located.

Some thugs have scared off witnesses from testifying against them. However, it is not at all clear that listing their names or addresses in court documents is an important factor in these threats.

On the practical level, defendants and their attorneys are legally entitled to this information anyway in order to prepare their cases. Often it's available on the street. So it's the public, not the bad guys, that is being shut out.

But there is a lot more at stake, and it affects everyone, not just people caught up in the judicial system.

Open access to court proceedings, with rare exceptions, has been a bedrock principle of this nation since its founding. Our own history, let alone that of other countries with less respect for personal liberties, has examples when secret court proceedings have undermined our freedoms.

The greater danger is what lawyers call the "slippery slope." Once you take the first step, it's hard to stop. Once the government starts closing even a few court records, it's easier to come back later and close more. That would be especially true when, sooner or later, the courts eliminate paper files and maintain their records only in electronic form.

The valid concerns of victims and witnesses can be protected as they always have been. If the circumstances warrant, a judge can seal a court record, whether it's on paper or in an electronic file. It is not necessary to throw out centuries of openness in the courts to serve a limited - though important - purpose.

Another point that needs to be made this Sunshine Week: Freedom of the press is not just freedom for the press. It's the public's freedom - your freedom - that is at stake. Our form of government can't work unless the people who are represented know what's going on. The media, whether the press, broadcasters, Web sites or blogs, are merely your messengers.

Without sunshine, the darkness envelopes us. And nasty stuff happens in the dark.

James S. Keat is a retired Sun editor who remains active on freedom of information issues. His e-mail is thomkeat@earthlink.net.

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