Testimony of MDDC, et al

 The Ad Hoc Committee on Court Records is considering two proposals, the Draft Judiciary Policy on Public Access to Records (Draft Policy) and the Draft Administrative Draft Order (Draft Order), which would drastically limit and in some instances completely prohibit public access to court records. The Draft Policy and Draft Order represent a marked departure from the current system, which has served the public well; and they raise serious legal and policy problems.

Because the proposed restrictions are of crucial concern (if not alarm) to newspapers, the Maryland Delaware District of Columbia Press Association, The (Annapolis) Capital, The Frederick News-Post, the Carroll County Times, The Washington Post, and The (Baltimore) Sun submit this testimony. We oppose the Draft Policy and Draft Order as currently written, and in light of the serious legal and policy problems they present, we request that they be reconsidered.

The Maryland Delaware District of Columbia Press Association (MDDC), founded in 1908, is a nonprofit organization of 162 newspapers in Maryland, Delaware and the District of Columbia. MDDC represents all 15 daily papers and 114 non-daily papers in Maryland. The (Annapolis) Capital, The Frederick News-Post, the Carroll County Times, The (Baltimore) Sun, and The Washington Post are members of MDDC. In addition, these newspapers are testifying on their own behalf, because of the importance to newspapers of public access to court records.

The Draft Policy and Draft Order acknowledge the importance of public access to court records, and they are intended to reconcile such access with other issues of concern - namely court operations and individual privacy - which have arisen with the widespread computerization of court records. These are valid and complicated issues that should be addressed. And we support the adoption of appropriate written procedures for the consistent, efficient handling of information requests (for example Section III.A of the Draft Policy). But substantively, the Draft Policy and Draft Order go too far in restricting public access. The restrictions they impose are both unlawful and unwise.

I. THE DRAFT POLICY AND DRAFT ORDER

The Draft Policy

The Draft Policy is broad in its reach and detailed in its provisions. It covers civil and criminal court records, includes paper court files and computerized records and addresses requests made in person, by mail, by telephone and by computer (dial-up access). The Draft Policy restricts access to court records that are currently open in the following main ways:

1. The Draft Policy prohibits access to "large numbers" of paper records at one time.

2. The Draft Policy limits access by a person to "ten records" per day, although a custodian is permitted, but not required, to allow additional access if it would not disrupt the custodian’s "primary functions."

1. The Draft Policy limits access to "large quantities" of records by requiring the            requester to provide his name and affiliation and by requiring the custodian to              determine if the request is "unduly burdensome," and if so either (a) to require revision of the request or (b) to delay compliance.

2. The Draft Policy limits electronic access to computerized records (dial-up access) by providing unfettered access only for lawyers and certain public agencies. For businesses, access is permitted, but not required. In this case, the requester must identify himself by name, affiliation, and intended use of the records; and the Court Information Officer has discretion to grant access if it is required in the requester’s business and is for a "legitimate" business use.

3. The Draft Policy limits access to certain computerized records, referred to as "compilations of data," by permitting, but not requiring, access only after the requester (a) identifies himself, the intended use of the records and to whom they will be disclosed; and (b) the Court Information Officer, in her discretion, considers the request in light of five listed factors including the potential for infringement of personal privacy, the potential for abuse or misinterpretation of the data and the potential for benefit to a governmental or other public purpose. This provision appears intended to apply to requests for searches of the court databases.

The Draft Order

The Draft Order, which covers court records of criminal proceedings, imposes even more severe restrictions on public access than does the Draft Policy:

1. The Draft Order prohibits direct electronic access, including dial-up access, to criminal court records, except for lawyers and certain government agencies. The public, including the press, is completely barred.

2. Apart from direct electronic access, the Draft Order limits access to requests that identify each record by case number, defendant’s name, nature of the charge and approximate date the charge was filed – detailed information that members of the public, including the press, are unlikely to have. As a result, court records will effectively be closed, and, as the Draft Order states, requesters will be referred to the Department of Public Safety and Correctional Services.

3. The Draft Order prohibits all access to criminal history record information in the computerized centrally stored criminal case records maintained by the Judicial Branch, if that information allows identification of an individual.

4. Where this information does not allow identification of an individual, access is limited to persons engaged in "legitimate research, evaluation, or statistical activities."

The restrictions created by the Draft Policy and Draft Order, which are summarized above, pose three major kinds of problems:

First, they drastically limit the kind and number of records to which there is unrestricted public access. Taken together, they limit the numbers of paper and computer records that can be obtained, they restrict searches of court databases, they prohibit release of all individually identifiable computerized criminal history information in the centrally maintained database, and they end dial-up access to civil and criminal records for the public, including the press.

Second, in certain instances the Draft Policy and Draft Order require requesters to identify themselves and to indicate the intended use of the records. For example, some, but not other members of the public are eligible for dial-up access, and those that are eligible, i.e., businesses where access is necessary, are eligible only if the information will be used for "legitimate" business purposes. And requests for "compilation[s] of data" (in other words for a search of a court database) must contain the identity of the requester, his affiliation, the intended use of the data and to whom the requester will disclose the data..

Third, the Draft Policy and Draft Order give unprecedented discretion to government officials to pick and choose how much access to allow, to whom and for what purpose. This discretion is made even broader by the vague and subjective nature of the factors that the official is to consider. For example, whether to grant a request for a "compilation of data" is left to the discretion of the Court Information Officer. The Officer is to consider five factors, including "potential for abuse or misinterpretation of the data requested as it relates to its intended use."

These problems constitute serious and substantial concerns. They depart from well-established Maryland law and tradition. This long-standing approach to public access to court records, which has served the public well for decades, rests upon two premises: (1) that with exceptions for sealed records in particular cases, the information in court records is public, and (2) that this public information is available to anyone who wants it, regardless of identity, purpose or other factors.

The attached legal memorandum from Wilmer, Cutler and Pickering discusses in detail the constitutional, common law and statutory provisions and policies that the proposals violate. The main issues are summarized below:

a. The Maryland Public Information Act. The Draft Policy represents an effort to establish consistent rules for court personnel when dealing with PIA requests for access to court records. It purports not to change existing law. But, in execution, the Draft Policy departs significantly from existing law. Foremost, it creates new restrictions on access to court records that currently do not exist in the PIA, and are fundamentally at odds with the PIA’s purposes.

First, the PIA establishes that computerized records are "public records," just like paper records. The Draft Policy, however, assumes that computerized records are somehow different from paper records. But the computer databases created by court personnel from information contained in paper records are no different than similar paper records based on court files, like court indices or schedules. Starting from this faulty premise, the Draft Policy proceeds to place severe, additional restrictions on access to computerized records (e.g., restricting dial-up access to certain requesters based on whether they intend to make "legitimate business use" of the information, eliminating access, as of right, for requests that involve database searches ("compilations of data"), and conditioning access to data compilations on non-PIA criteria such as "the potential for abuse or misinterpretation of the data"). These restrictions violate the PIA’s basic guarantee that all types of records be generally open to public inspection.

Second, the Draft Policy allows court document custodians to deny records requests based on administrative burden alone (e.g., the ten records per day rule, the prohibition on requests for large numbers of records at any one time, and the rules on data compilations). But the PIA does not permit custodians to deny requests based solely on administrative burden.

Third, the PIA does not permit document custodians, except in limited circumstances not applicable here, to base access decisions on the requester’s affiliation, motives, or planned uses for the information, much less doing so based on highly subjective standards. The Draft Policy does so in numerous places (e.g. the restrictions on dial-up access, and access to data compilations).

Fourth, the criteria for granting requests for data compilations – e.g., whether they might infringe personal privacy, or be subject to misinterpretation, or be beneficial to the government -- are essentially new PIA exemptions, which are contrary to the current PIA and inconsistent with the Ad Hoc Committee’s effort to set rules that facilitate compliance with the PIA, but do not substantively change the PIA.

Fifth, the Draft Policy imposes a complicated regulatory regime that would impose significant costs and delays to requesters. That is fundamentally inconsistent with the PIA’s command that the public should have access to public records with "the least cost and least delay."

b. Constitutional and Common Law Rights of Access to Court Records. Although the Maryland Court of Appeals has not addressed the question, the Maryland Court of Special Appeals and the U.S. Court of Appeals for the Fourth Circuit have recognized a First Amendment right of access to civil and criminal court records. The government can restrict this right of access only when it would serve a compelling interest, and when the restriction is narrowly tailored to serve that interest. The Policy’s two asserted interests – reducing administrative burden on court personnel and protecting privacy -- do not rise to the level of compelling state interests. The policy also is unconstitutional because it is not narrowly tailored. For many of these same reasons, the Draft Policy violates well-settled common law principles and traditions.

c. Other Constitutional Problems. First, the Draft Policy violates the First Amendment’s prohibition against granting selective access to government records and the Equal Protection Clause of the Fourteenth Amendment because it allows state officials to pick and choose who may have access to court records based on the requester’s affiliation and the content of the speech the requester intends to disseminate, without a compelling justification for doing so. Second, the Draft Policy gives court document custodians wide-ranging discretion to deny access to requesters who might criticize the courts or court personnel, in violation of the First Amendment.

a. Inapplicability of Authority on which the Draft Order Relies. In proposing the severe restrictions on access to criminal history record information contained in centralized computer court records, the Draft Order relies primarily on the CJIS statute, the PIA, and a U.S. Supreme Court case, United States Department of Justice v. Reporters Committee for Freedom of the Press, 489 U.S. 749 (1989). None of these authorities, however, provide any support for these severe restrictions.

First, the CJIS statute strictly limits dissemination of criminal history record information maintained in the CJIS system, and it appears that the Committee believes that this statute requires closure of the database that contains criminal records information. But the statute explicitly excludes "court records of public judicial proceedings." Thus, the CJIS statute may not be read as a basis for limiting access to computerized court records, even though much of the same information from criminal court proceedings in Maryland may also be recorded in the CJIS database.

Second, the Draft Order appears intended to protect the privacy of individuals identified in the computerized court records. The preamble refers to language from Section 10-612(b) of the PIA that states that the Act should be "construed to permit inspection of a public record ‘unless an unwarranted invasion of privacy…would result." But this language provides no basis for non-disclosure of criminal history information in court records. The PIA allows denial of access only if one of its stated exemptions applies. There is no exemption from disclosure for invasion of privacy. The language quoted in the preamble does not create an exemption, but rather is an exception to the PIA’s general rule of liberal construction in favor of disclosure.

Third, the Draft Order relies considerably upon the different purposes for which court record information is sought. The preamble finds a difference between the value of requests that seek so called "official information" about court operations and those that seek information about individuals who have been involved in court proceedings, referring to this as information that the court "happens to be storing." Such a distinction has no place in the PIA. Moreover, the distinction ignores the fundamental idea that the public has a strong interest in learning about the substance of individual court proceedings, as well as in monitoring the court’s performance as an institution. The importance of public access to all court information is reflected in the protections given such access by the federal and state constitutions and the common law.

Fourth, the Draft Order incorrectly relies on the Reporters Committee case, which provides no support for the restrictions on access to court records in the Draft Order. While the Draft Order deals with traditionally open court records, maintained by the courts, the Reporters Committee case involves FBI rap sheets maintained by the Justice Department. These rap sheets also differ from court records in that they contain a greater amount of personal information, are created primarily for law enforcement use and were never intended to be public, even though some of the information in them also appears in court records. Furthermore, the Reporters Committee case was brought under the federal Freedom of Information Act, which, unlike the PIA, contains exemptions from disclosure that involve consideration of "unwarranted invasions of privacy." Finally, the case’s discussion of the difference between the two kinds of information requests was conducted only in deciding whether the invasion of privacy at issue was "unwarranted" – which is not at issue here.

b. Constitutional and Common Law Problems. The drastic restrictions on access that the Draft Order imposes -- including the elimination of dial-up access for the public including the press, and the complete elimination of public access to individually identifiable criminal record history information from court databases – raise serious constitutional questions and also conflict with common law traditions. The legal analysis regarding these matters is the same as discussed above, regarding the Draft Policy.

Every day, newsrooms across Maryland use court records to report the news. These records are a longstanding, fundamental and crucial tool. They help us get stories right, help us make stories better, and help us write stories of public importance that we could not otherwise write.

Court records give newsrooms a window into civil suits and criminal cases that are of vital interest to the community. Court records are also essential to stories about the workings of the criminal and civil court systems themselves. Finally, court records provide a reliable means of finding and checking important historical information about people who are involved in newsworthy events, including, for example, criminal suspects, drivers responsible for fatal accidents and candidates running for local office.

Court records are used for daily, routine stories and for complicated investigative series. Particularly for stories with deadlines, dial-up access has come to play a critical role in enabling newspapers to bring important stories to the public, given the practical impossibility of checking individual records in all state courthouses, and the need for access at hours after the courts have closed. When news is breaking, dial-up access permits newspapers to do the most basic fact checking after the courts are closed. Dial-up access eliminates the need for time consuming trips to the court house to monitor cases for routine but noteworthy developments such as trial dates, the filing of motions and mandatory prosecutorial discovery. The use of dial-up access by the media also lightens the workload of the court personnel who are not required to assist the reporters.

On larger investigative stories, access to court records allows newsrooms to examine trends and detect patterns. For these stories, information from court databases is indispensable. Thus prohibiting or limiting dial-up access and access to the court’s centralized database, as the Draft Policy and Draft Order do – are particularly problematic for newspapers.

Here are some examples that illustrate the importance of court records in reporting stories of interest to the public.

Crime Reporting

When someone is arrested in connection with a major crime, such as a homicide or a kidnapping, reporters check court records to determine whether the person has prior criminal convictions, and whether the person was on parole or probation at the time the crime was committed. Important stories have emerged as a result of these routine court records checks – not only about the crimes themselves but also about the role the court system and other government entities played in them:

· In June 1999, The Washington Post reported on a murder that occurred in Prince George’s County when a woman was shot while standing in the window of her house hanging curtains. A routine search of court records on the suspect, using dial-up access to the Judicial Information System, revealed that he was on home detention at the time of the killing. That led the newsroom to investigate how the home detention monitoring service failed to detect that the suspect was not at home. Subsequently, it was revealed that the home detention monitoring service had numerous lapses. The agency – which was responsible for 98% of all house arrest violations in the state – voluntarily shut its doors under pressure from the state after the pattern of lapses was revealed.

· The (Baltimore) Sun reported that an individual who was arrested for murdering a young boy had done so several days after being released for serving a sentence shortened by credits for good behavior. A records check revealed that he had a long history of previous convictions for violent crimes, including assault. The coverage sparked a public debate about the wisdom of crediting inmates for good behavior.

Accident coverage.

Court records also play an important role when reporters cover car accidents, train wrecks, and the like. Reporters routinely use court records to obtain information about the background of the vehicle operator involved.

· In August 1997, The Washington Post reported on a traffic accident in the District of Columbia in which a dump truck overturned when its brakes failed, killing a 17-year old honors student. A search of court records in Maryland using dial-up access revealed that less than a month before the accident, the same driver driving the same truck had been involved in a crash in Prince George’s County that injured a woman and her baby son and that also resulted from the truck’s faulty brakes. Court records further revealed that the driver had amassed a total of 31 traffic citations, including several in Maryland. The coverage ultimately sparked federal regulators to review the licensing process for commercial truck drivers.

Performance of state regulatory agencies.

Newsrooms have used court records to reveal that felons were employed as teachers, school bus drivers, day care center operators, nursing assistants, nursing home aides and real estate agents – all licensed by state agencies that were supposed to perform criminal background checks. To do these stories and uncover public safety problems, news organizations had to have access to centralized court records.

Coverage of local politics.

A reporter for The (Hagerstown) Herald-Mail used the computer in the District Court to discover that two candidates for elected office in Sharpsburg, Maryland had previously undisclosed criminal convictions. One candidate had been convicted of felony theft and had charges pending in Baltimore County. The other candidate had a theft conviction in Montgomery County. Neither candidate had previously disclosed his record.

Investigative stories

Computerized court records have made it possible for newspapers to publish stories, or series of stories, on crucial, and often complicated, public issues. The availability of court databases enables reporters to analyze events and trends and to monitor the workings of government. Often these stories look at issues of public safety, and at the effectiveness and fairness of the criminal justice system -- subjects of obvious importance to all citizens. For example:

• The Washington Post ran a multi-part series this year on the problem of repeat drunk driving offenders in Montgomery County. The Post analyzed court records to identify repeat offenders. Ultimately, The Post found a system fraught with loopholes that systematically fails to keep chronic drunk drivers off the roads.

• This month, The Washington Post ran a series exposing fatal flaws in the District of Columbia’s homicide investigations. The series relied heavily on computer analyses of information from court databases to track the progress of particular individuals through the criminal justice system.

• The (Baltimore) Sun analyzed nearly 3000 criminal court records and wrote a series documenting the failure of Baltimore City courts to impose the mandatory five year, no-parole sentence for offenses involving the use of a handgun in the commission of a felony. Their analysis showed that fewer than one in four people charged with gun crimes got the required sentence, prompting public debate about the effectiveness of the law in combating violent crime in the City.

• This year, The (Baltimore) Sun used court records to expose the saga of George Dangerfield, Jr., the convicted drug dealer who acquired 125 rental houses in an East Baltimore neighborhood known as "Zombieland." The story described how Dangerfield terrorized his tenants, lead poisoned numerous children and jeopardized a $35 million urban renewal project by buying up slum houses in the path of the project. This story was built on a large number of criminal and civil court records to establish Dangerfield’s criminal history, general pattern of abusive conduct toward his tenants, corporate structure and long record as a scofflaw violator of city health and housing codes.

The Draft Policy and Draft Order will make it much more difficult for journalists in Maryland to do the kind of reporting illustrated in the above stories. The restrictions on data compilations, and large-scale requests for computer and paper records will make it much more difficult for investigative reporters to do in-depth analyses.

Of equally serious concern to newspapers is the prospect of losing dial-up access to court records. Without dial-up access, reporters and researchers will be effectively precluded from conducting statewide criminal background checks on newsworthy individuals, and as the examples illustrate, from discovering important information about how the government is working. The prohibition on dial-up access will also needlessly slow the newsgathering process by requiring reporters to physically check the files in relevant courthouses to find out whether the court records contain newsworthy information about breaking news. This will place an added administrative burden on court personnel.

IV. CONCLUSION

It is difficult to think of government information that is of more value to thepublic than the court records at issue in the Draft Policy and Draft Order. In Maryland, the long-standing tradition of public access to these records and the constitutional, common law and statutory protections for such access are grounded in sound policy reasons.

Access to court records is fundamental to our form of government, which depends upon an informed citizenry and the rule of law. As the discussion in Section III above makes clear, access to court records permits the public – often via the press – to learn what has happened in civil and criminal cases conducted in the courts. Through such access, the public also can monitor, understand and evaluate the operation of the court system and the laws that it implements. The newspaper stories described in that Section demonstrate the value to the public of stories generated from court records. The various restrictions contemplated by the Draft Policy and Draft Order would hamper, rather than assist, the reporting of such stories – to the public detriment.

In sum, we understand the need for the Court to consider the difficultissues that have arisen from the computerization of court records, and we appreciate the time that the Committee has already devoted to this matter. But the Draft Policy and Draft Order as currently written go much too far in restricting public access to court records, in light of both legal requirements and policy issues. We cannot overstate the level of concern among newspapers over these proposed restrictions.

Because the problems with the Draft Policy and Draft Order are pervasive, we request that as currently drafted, they proceed no further and that revised drafts be made available for public comment. We would like to work with the Committee in developing policies that meet the Court’s concerns and also are consistent with current law and with the Court’s stated intention to assure public access to court information.

Respectfully submitted,

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James Donahue      
Executive Director
MDDC Press Association

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Carol Melamed
Vice President Government Affairs
The Washington Post
Chair, Government Affairs Committee, MDDC

_____________________________
Mary R. Craig
Counsel
The Baltimore Sun Company

_______________________________
Thomas Marquardt
Managing Editor
The (Annapolis) Capital

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Michael S. Powell
Managing Editor
The Frederick News-Post

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Jim Lee
Editor
Carroll County Times

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