In June 2015, the Trial Court Public Access to Court Records
Committee held a public hearing on whether trial court divisions
should put court records online for access by the general public
outside the courthouse. At present, no criminal records and no
Probate and Family Court records (except administration of estate
cases) are available online to the general public. Online court
record access would be convenient to people who have Internet
access, but many lawyers have concerns about the negative effects
of such access. Former Massachusetts Bar Association President
Denise Squillante, MBA Criminal Justice Section Vice Chair Peter
Elikann, MBA Family Law Section Vice Chair Lloyd Godson, the Union
of Minority Neighborhoods, the Massachusetts Black Lawyers
Association and many attorneys who represent indigent clients in
criminal, CORI sealing, family law, housing and other matters
testified at the hearing or wrote letters to the committee about
the hazards of online access. Some of their major concerns are
discussed below.
Internet access to court records by the public would
have a disparate adverse impact on privacy of the poor and further
erode confidence in the justice system. Providing case
information to the general public on the Internet is especially
unfair to the poor because they do not have lawyers to protect
their privacy rights. The right to counsel does not extend to
litigating collateral consequences or privacy issues. Individuals
with appointed counsel are often not informed of the impact of
their criminal cases on future employment or housing. In civil
cases, many past and present litigants were or are pro se.
They are not likely to be aware of the possibility that their case
information might be available on the Internet in the absence of an
allowed motion to impound records. Future Internet access would
affect access to justice because people with meritorious claims
would have to choose between filing a court case and avoiding
disclosure of personal information related to the case on the
Internet.
In a post-Ferguson world, where the fairness of the legal system
is frequently called into question, there is increased awareness
that people of color are disproportionally involved in the criminal
justice system and are often poor. The piling on of further adverse
consequences through online access to court records would further
erode confidence in our justice system.
The same rules should not apply to Internet access to
records because Internet access is different from courthouse access
and destroys traditional privacy protections.
Historically, courts could take pride in providing public access to
court files in clerks' offices while affording privacy protections
through the "practical obscurity" of the same records. Pressure on
the courts by the media to put all records that are open to the
public at the courthouse online raises novel questions about the
court's responsibilities to individuals involved in court cases.
The Internet opens an entirely new dimension of communication that
operates 24 hours per day with a limitless audience. The assumption
that online access to records should be the same as access to
records in a clerk's office is flawed because unfettered Internet
access does away with "practical obscurity" and turns a blind eye
to privacy and safety concerns. People who would not bother to make
a trip to a courthouse to review records can do a lot of damage
with just a laptop when information is available in a few seconds
online. Cyberbullying, malicious tweets, identity theft,
retaliation websites, cyberstalking and the commercial exploitation
of personal information by data mining companies, are just a few
examples. Online access by the general public has the potential to
ruin reputations and repeatedly put parties in harm's way.
There is no constitutional right to access records online. Even
the presumption of access to records at a courthouse is limited in
certain instances depending on the nature of a case or the issue
presented to protect litigants, children, witnesses or even
business interests. Thus, the rules governing online access by the
general public should not be the same as access to paper records at
the courthouse, or the court's balancing of interests will shift
too far away from individual privacy, public safety and the
realities of data misuse as the Internet continues to evolve.
Putting records online will put former defendants and
others in harm's way. You cannot un-ring the bell after
information is released on the Internet. Both criminal and civil
records can inflict a virtual scarlet letter and create barriers to
jobs, housing and many other opportunities.
Criminal cases. Mass incarceration and racially
disparate involvement in the criminal justice system have come to
be known as the new Jim Crow. In general, work is the pathway to a
better life, but research shows that most employers will not hire a
person with a criminal record. Online access to ongoing or closed
criminal records has the potential to deepen poverty in communities
of color because it would eviscerate our criminal record sealing
laws. If criminal records are accessed or posted online, the
information may remain on the Internet forever. If sealing becomes
a useless remedy, more people will suffer long term unemployment
and the destruction of life opportunities due to past criminal
records will push communities of color toward a permanent
underclass. People who are falsely accused or misidentified also
may suffer further harm from online access to records. Internet
access to records could trap people in poverty, deepen feelings of
hopelessness and add to concerns about the fairness of the justice
system.
Family law. Online access to family law cases is
another area of concern. Denise Squillante, Patricia Levesh and
Lloyd Godson testified that online access would too easily subject
former spouses, victims of abuse and others to vindictiveness and
retaliation in family law matters. Children and their classmates
would be able to access embarrassing and devastating information
about their own parents or their classmates' parents. Online access
would give domestic abusers the ability to send links to records to
employers and others to further abuse victims, who are often the
subject of bogus criminal cases filed by abusers. Release of
certain data contained in abuse or harassment prevention orders and
domestic relations protective orders also would violate the
Violence Against Women Act. Access to guardianship, civil
commitment and mental-health related cases on the Internet could
also have unintended consequences on the well-being of named
parties.
Housing. The Housing Court put docket entries online
several years ago. Attorneys Todd Kaplan and Esme Caramello from
the Harvard Legal Aid Bureau noted that some landlords use online
records to reject any applicants with past Housing Court cases as
tenants, including those who were not at fault or only sought help
when the landlord refused to address bad conditions such as lack of
heat in the winter.
Online access by the general public will fuel commercial
exploitation of court data. The Internet has spawned
scores of online background screening and data mining companies
that troll the web and sell data they aggregate on the Internet for
a fee. In 2012, the National Consumer Law Center (NCLC) issued a
report on this phenomenon and concluded that these companies often
violate consumer protection laws and the reports they sell are
fraught with errors. They often scrape data from online court
websites to obtain data at no cost and fail to update information
in the reports they sell. This has grave consequences for job
seekers, including former defendants who face barriers to
employment based on past criminal records. As the NCLC explained in
a letter to the court committee, once information is online or
provided to these companies, it has a life of its own.
Errors in computerized docket entries will be a problem
if docket entries are online. Internet access by the
general public would exacerbate the effects of data entry errors
due to wider and easier access to court files. Unfortunately,
errors in computer generated docket entries occur in the trial
courts. A criminal case may be listed as open and a warrant may
appear when the actual court file shows the case closed after the
warrant was withdrawn. Review of actual files at the courthouse
offers better protection against errors because the file usually
contains all of the relevant information which then makes it easier
to identify clerical errors. Impounded information or sealed cases
are sometimes inadvertently made available. The lives and safety of
parties and witnesses who cooperated with the prosecution can be
put in jeopardy by release of impounded information. Parties may
lose their jobs and families may suffer needless harm due to online
release of incorrect data.
Conclusion
Potential online access by the general public to our clients'
criminal and family law cases would have very serious consequences.
The problem of landlords using the online Housing Court database to
blacklist tenants also demonstrates the harm that can occur when
third parties have online access to court records. The Trial Court
Public Access to Court Records Committee is to be commended for
soliciting feedback on the important issue of access to court
records before drafting a rule. The committee will be issuing a
proposed rule for public comment.