The impact of online court records on vulnerable populations

Issue December 2015 December 2015 By Pauline Quirion

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.