Comments on Draft Model Policy on Public Access to Court Records
The Reporters Committee filed comments on April 15, 2002, finding fault with "model" proposals that would restrict access to a wide range of court documents
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Comments on Submitted to:
Martha Wade Steketee Comments by:
Lucy Dalglish, Esq., Executive Director TABLE OF CONTENTS Discussion I. An overview of the general principles of openness. A. There is a strong presumption of access to court records. B. Privacy interests are insufficient to overcome the presumption of openness. D. There would be great benefits to improved access. 1. Benefits to the public via the news media. 2. Information contained in court records is of vital public interest. E. Open access is vital due to the nature of the judiciary as an institution. II. Analysis of Proposed Policies A. The Model Policy threatens the presumption of openness. 1. The Model Policy creates problems where none exist by raising copyright issues. 2. Information, once public, cannot be "unlearned." 3. The proposed liability for inaccurate information is problematic. 4. The courts should not be concerned with how recipients of bulk or compiled data use it. E. The Model Policy adopts a standard from tort law that is inapplicable to access issues. F. There has never been a problem with reluctance to use the court system. H. Court administrators should not be deciding which information is "true" and which isn't. I. Court administrators should not threaten to revoke the right of access. The Signatories The Reporters Committee for Freedom of the Press is a voluntary, unincorporated association established in 1970 by news editors and reporters to defend the First Amendment and freedom of information rights of the print and broadcast media. The Reporters Committee assists journalists by providing free legal information via a hotline and filing amicus curiae briefs in cases involving the interests of the news media. The Committee produces several publications to inform journalists and media lawyers about media law issues, including a quarterly magazine, The News Media & The Law, a bi-weekly newsletter, News Media Update, as well as several informational pamphlets and reports. The Committee is currently producing a series of booklets regarding court secrecy. The first installment, Anonymous Juries, was published in November 2000. Gag Orders was published in May of 2001. Access to Alternative Dispute Resolution was published in November 2001. The most recent installment, Access to Terrorism Proceedings, was published in February 2002. Purpose of these Comments We have reviewed the Draft for Comment Model Policy on Public Access to Court Records [hereinafter "the Model Policy" or "proposed policy"]. We explain below why electronic access to records would be beneficial to the public and why limitations on public access would not deter any perceived infringements upon privacy. We raise concerns that some of the proposed policies would limit access to records that clearly serve the public interest. We also raise concerns that the proposed policy would violate the First Amendment to the U.S. Constitution. We have two primary concerns with the proposed Model Policy. The first is that the proposed policy seeks to replace the well-established presumption of openness with a vague and arbitrary "balancing" test that focuses on a risk of "harm." The second main problem is that the comment sections discussing each of the proposed policies contains language that is adverse to First Amendment principles and recognized law. Many of our concerns are derived from the commentary rather than from the stated policies themselves. We believe that the comments may mislead some court administrators to limit access to court records when access should be granted. The Model Policy, as proposed, seeks to reverse such long line of cases and impose an entirely new rule instead: that a potential for "harm" - - a vague notion that does not require any proof or evidence - - should be a basis for shutting off access to court records. Such a proposal ignores the well-established right of access to court records and ignores the clear precedent in favor of access over vague assertions of a "privacy" interest by litigants or witnesses. Perhaps most importantly, the Model Policy, as worded, is vague as to the specific privacy interests the Judiciary seeks to protect. Even if the public's right of access to court documents could be restricted in certain circumstances, a court would need to specifically delineate what compelling interests would be at stake rather than relying on a vague and ambiguous term such as "privacy." The fundamental principles of due process mandate that the public's right of access not be abrogated unless there are specific, compelling reasons, supported by actual evidence and not mere speculation, to deny public access to court documents.(1) The Proposals, as worded, do not specify any compelling need, nor do they require evidence of any compelling need to limit public access to court documents. Further, the Supreme Court has clearly established that restrictions on access cannot be imposed without complying with principles of due process. Any restrictions on access, therefore, would have to be made on a case-by-case basis, and categorical restrictions on access are presumptively invalid. We therefore question whether such proposals could pass constitutional muster. Below we provide a brief overview of the existing law regarding the openness of court records and then discuss the specific issues raised by the Model Policy. Discussion I. An overview of the general principles of openness. A. There is a strong presumption of access to court records. Any judicial policy must begin with the assumption that there is a right of access to court records. There is no requirement that a citizen have a particular purpose for reviewing records, nor is there a requirement that a citizen be limited to using information for a particular purpose. The records are readily available for inspection at the courthouse, and any citizen may have access to court records. The only exceptions are records that have been sealed or otherwise deemed confidential. In fact, a presumptive right of access to court documents has been affirmed numerous times by many different courts. See, e.g., Nixon v. Warner Communications, Inc., 435 U.S. 589 (1978) (finding a common law right of access to judicial records); Republic of Phil. v. Westinghouse Elec. Corp.,949 F.2d 653 (3d Cir. 1991) (right of access to trial records); Globe Newspaper Co. v. Pokaski, 868 F.2d 497 (1st Cir. 1989) (right of access to trial records); Rushford v. New Yorker Magazine, Inc., 846 F.2d 249, 253 (4th Cir. 1988) (right of access to documents filed with a summary judgment motion); Anderson v. Cryovac, 805 F.2d 1 (1st Cir. 1986) (stating that there is a long-standing presumption in the common law that the public may inspect judicial records); Associated Press v. U.S. (DeLorean), 705 F.2d 1143 (9th Cir. 1983)(finding a First Amendment right of access to court records); Brown & Williamson Tobacco Co. v. Federal Trade Commission, 710 F.2d 1165 (6th Cir. 1983), cert. denied, 465 U.S. 1100 (1984) (noting a First Amendment and common law right of access); United States v. Myers (In re Nat'l Broadcasting Co.), 635 F.2d 945 (2d Cir. 1980) (strong presumption of a right of access); Globe Newspaper Co. v. Fenton, 819 F. Supp. 89 (D. Mass. 1993) (right of access to court record indexing system); NBC Subsidiary, Inc. v. Superior Court, 20 Cal.4th 1178, 980 P.2d 337, 86 Cal.Rptr.2d 778 (1999). Because of the presumption of access to court records, the courts should presume that the public will have access unless a person in a specific case can demonstrate a compelling reason to limit access. In a particular case where a litigant or other person contests the availability of information, the court may evaluate whether his privacy interests outweigh the right of access in that particular case. The procedure for doing so is already in existence via sealing orders or protective orders. However, a sweeping policy that attempts to preemptively determine which materials should be public and which should not would inevitably be broadly drawn and would limit access to information that would otherwise be available to the public. Further, any limitations on access should be narrowly tailored to ensure that materials are not unjustly withdrawn from meaningful public scrutiny. For this reason and for the reasons stated below, we support policies that allow the broadest electronic access to records, allowing for traditional protective orders only when circumstances truly require secrecy, to be determined on a case-by-case basis. An across-the-board policy attempting to outline when records should be presumed available or not fails to apply the already clearly-established presumption in favor of access. B. Privacy interests are insufficient to overcome the presumption of openness. The Model Policy implies that quick and efficient access to court records would somehow create an invasion of privacy or otherwise result in negative consequences.(2) Such an assumption is flawed. First, court records of all types, in all cases, should always be available to the public so that the public may monitor how court officials perform their duties. Judges and other court personnel are public employees. Their conduct is subject to public scrutiny and they may be held accountable for improper or injudicious actions. See, e.g., In re T.R., 556 N.E.2d 439, 453 (Ohio 1990) ("Since Judge Solove is an elected official, the public has a right to observe and evaluate his performance in office"). The only way for the public to fully and fairly evaluate the performance of court personnel is to review court records and to have full access to court records. Second, if a litigant places personal information about himself in the public record voluntarily, the litigant has no expectation of privacy in such information. If a litigant is involuntarily required to divulge information in the course of litigation and has privacy concerns regarding a particular document, he may request a protective order or sealing order. Third, those who are haled before the courts in criminal matters may not properly assert a privacy interest that invalidates public access to those court records. A criminal defendant has a constitutional right to a public trial, as we as a nation believe that a public trial ensures a fair trial. See U.S. Const. Amend. VI. A public trial, however, means that any information that the accused may submit to the court becomes a public record. To the extent the accused submits information about himself to the court, he has no expectation of privacy in that information. More importantly, however, is the fact that "The People" are the complainants in a criminal proceeding. The public has an interest - - a strong interest - - in ensuring that those who commit crimes are properly convicted and also in ensuring that those who are innocent are released. Openness ensures that prosecutors do not abuse their power and generally allows the public to see whether the government employees properly and efficiently serve the public interest. Further, once a criminal is convicted, the public has an interest in following that person's behavior for its own safety and protection. The American judicial system is premised on the pursuit of truth. We presume that the accused is innocent until proven guilty beyond a reasonable doubt. We do not allow evidence or testimony to be admitted unless there are adequate indicia of reliability, foreclosing the possibility of convictions based upon mere rumor, hearsay or simple dislike of the accused. Such pursuit of the truth requires that the accused be permitted to confront and cross-examine his accuser, including victims and witnesses. It also requires that the public be informed of the testimony of victims and witnesses so that other members of the community with pertinent, relevant information may come forward and contribute their knowledge. Richmond Newspapers v. Virginia, 448 U.S. 555, 596-97 (1980) (Brennan, J., concurring) ("Public trials come to the attention of key witnesses unknown to the parties"); San Bernadino County Dep't of Pub. Soc. Servs. v. Superior Court, 283 Cal. Rptr. 332, 341 (Ct. App. 1991) (reasoning that "open proceedings discourage perjury and might encourage other witnesses to come forward which in turn leads to more accurate fact-finding"). The testimony of victims and witnesses must be publicly scrutinized to ensure that their evidence is not politically motivated, based on hearsay, or otherwise untruthful. [One] great right is that of trial by jury. This provides, that neither life, liberty nor property, can be taken from the possessor, until twelve of his unexceptionable countrymen and peers of his vicinage, who from that neighbourhood may reasonably be supposed to be acquainted with his character, and the characters of the witnesses, upon a fair trial, and full enquiry, face to face, in open Court, before as many of the people as chuse [sic] to attend, shall pass their sentence upon oath against him. . . . Richmond Newspapers v. Virginia, 448 U.S. at 568-69 (citing 1 Journals 107). "Without publicity, all other checks are insufficient: in comparison of publicity, all other checks are of small account. Recordation, appeal, whatever other institutions might present themselves in the character of checks, would be found to operate rather as cloaks than checks; as cloaks in reality, as checks only in appearance." Id. at 569 (quoting 1 J. Bentham, Rationale of Judicial Evidence 524 (1827)). Public access to court records, therefore, is as much a vital and necessary factor in the proper functioning of our criminal justice system as the Rules of Evidence. The vague assertion of "privacy" should not now suffice to reverse hundreds of years of openness in the American justice system. Finally, this issue has been addressed by many courts in the context of sealing orders. Many cases that have held that privacy interests, potential embarrassment, injury to reputation, or other potential harms are insufficient to overcome the presumption of public access to court records.(3) C. The fact that information is publicly available does not mean that it will actually be accessed or used improperly; in fact, the public has strongly objected to limitations on access to court records in other jurisdictions. One of the greatest concerns behind the desire to limit access to or use of court records is the fear that "private" information will become public knowledge or will be misused in a manner that causes serious harm. However, such concerns are based on nothing more than speculation and fear. Information about court cases has become available over the internet over the last five years. There has been no evidence of widespread abuse or "harm" resulting from such access. In fact, there has been no evidence that records are searched by anyone other than those who would have gone to the courthouse to access such records in the first place. More than half of the states have established some form of Internet or electronic access to at least some court records. Although each state has created its site differently, many are useful and have received public praise. Wisconsin, for example, has a searchable database permitting electronic access to court records and has been successful.(4) And of all the states that allow access records via the Internet, there has been no backlash, no outcry, and no known abuse. In 2000, the Maryland Judiciary issued proposals to limit public access to electronic court records in the name of privacy concerns. The state's proposals prompted a public outcry. Citizens with diverse interests came together to protest the proposals, leading the Maryland Judiciary to abandon the original plan and reconsider its options. The Associated Press, in reporting on the opposition to the proposed rules, cited the example of Kathy Morris, a private detective in Harford County, who used electronic access of court records to perform background checks of a client's potential babysitters and learned that one of them was a convicted child molester. The Maryland judiciary also received opposition from bankers, apartment managers, nuclear power plant officials, and other employers who regularly access court records electronically. The public understands that information is contained in court records for a reason and the public understands that such information is useful. Court records have not been abused in jurisdictions where they are readily available on-line. In the event of any abuse, existing tort causes of action and criminal laws could be used to curb improper conduct. Based on the reaction in Maryland, it appears that the public believes that the benefits of electronic access outweigh fears, which have proven, thus far, to be unfounded. D. There would be great benefits to improved access. We agree with the principle that court records should be available on line to the same extent they are available at the courthouse. Such a position was adopted by the Federal Judiciary in September 2001 when it determined that court records should be available online. On-line access to court records would have numerous benefits that result from the free flow of information. 1. Benefits to the public via the news media. First, remote access to court records allows journalists and other members of the public to obtain information without having to appear at the courthouse, which can be very useful in rural areas. It also allows reporters to obtain information after business hours and on weekends. Such access permits reporters to check case files for background information or updated information when news breaks at night or on weekends. Remote access would also allow access when there is substantial demand for a particular file or when it is "checked out" to chambers. The recent example of the Bush-Gore election cases in Florida demonstrated how both media personnel and private individuals may seek records simultaneously. The public has widely praised the Florida courts in the aftermath of the recent election for posting their election-related decisions on the Internet at the same time they became available at the courthouse. This allowed all interested persons, whether media or ordinary citizen, to access the court opinions without delay. Reporters also tell us that electronic access helps them to be more accurate, as they are able to obtain more relevant information in less time. Furthermore, because journalists are not always permitted to bring recording devices into courtrooms, having motions, orders and possibly even transcripts available on-line would go a long way toward improving the accuracy of news journalism. Reporters also help their communities through investigative reporting. Improved access to court records will help reporters further serve their communities. 2. Information contained in court records is of vital public interest. Court records have consistently proven to be a vital source of information for the public, and allowing simplified access via electronic records will surely provide an even greater benefit. For example, the Washington Post in April 2002 won a Pulitzer Prize for reporting on problems with the foster care system in Washington, D.C. There have been many recent cases where children have died from extensive abuse in foster homes. Because of such extensive abuse, the public's concern about the foster care system has increased dramatically. Court records contain information about abusive homes, but no one person has the time or ability to search each and every written record stuffed in every file cabinet scattered about all the courthouses in the nation to ascertain which homes are safe and which might potentially present a danger to a child's safety. But if all such records were electronically available, any person could quickly and thoroughly search names, addresses and other relevant details to determine whether foster parents have a record of abusive behavior. The need for access to such information is especially critical when abusers move across state lines in an effort to avoid detection, taking advantage of the new community's lack of information about their past. The ability to search records remotely therefore becomes even more important. Public access to court records would aid not only journalists but also concerned citizens or advocacy organizations to monitor such activities as watchdogs, both helping to ensure public safety and increasing confidence in the government's actions. Furthermore, electronic access to court records will enable the public to keep track of matters of public concern. For example, the public has a strong interest in knowing that laws are effectively enforced. The Washington Post recently published a series of articles concerning the ineffectiveness of drunken driving laws in Montgomery County, Maryland.(5) The newspaper chronicled several persistent drunk drivers who would receive a mere slap on the wrist from county judges and be let loose on the roads. The public has an interest both in knowing who drives drunk (to avoid them or stop them) and how the judges treat drunk drivers (to determine whether they wish to take action for stronger DWI laws or new judges). Such a story is obviously faster and easier to compile with electronic access to records. Although the drunk drivers might claim that they have a privacy interest in keeping their drunk driving history a secret, there is clearly a much stronger public interest in knowing how chronic drunk drivers are treated by the courts. Even seemingly "private" disputes are of public interest. Tort, divorce, custody and contract disputes are of public interest to the extent they show how the courts work and what standards are applied. Access to such cases allows the public to understand how fault is apportioned and what factors are considered in determining outcomes. Such an understanding helps the public better understand the court system and attempt to resolve disputes without filing unnecessary lawsuits. It would therefore be adverse to the public's interest to begin to limit access to court records in the name of "privacy." In each of the example cited above, the subjects of each case would surely argue that they have a privacy interest in keeping information about their cases confidential, as they are potentially embarrassing or, in the language of the Model Policy, could potentially cause "harm." But limiting the public's ability to oversee the court system and learn about dangers in its community would be a greater harm and an infringement on the American principles of self-government. 3. It is important to establish a policy of openness now, before courts transition into a fully electronic system. In the future, it is likely that all records will be kept electronically rather than on paper. As courts accept electronic filings, and as technology advances to permit greater electronic capacity for memory and storage, court records will slowly but surely transition to an all-electronic format. As noted below, some state courts have already put their files on line, and there is no evidence that any harm has resulted. It would set a dangerous precedent to begin to limit public access to electronic records now, as it would surely lead to greater limitations on public access to records in the future. E. Open access is vital due to the nature of the judiciary as an institution. Maintaining the presumption of openness regarding judicial records is particularly important given the institutional nature of the judiciary itself. Most judicial decision-making, whether consisting of discussions between members of an appellate court panel or deliberations among jurors, occurs outside of public view. By preserving the presumption of openness to judicial records - - and, we hope, enhancing access in the coming years through electronic networks - - the courts will maintain this vital link with the public and bolster public confidence in the administration of justice. As Chief Justice Burger noted in Richmond Newspapers, 448 U.S. at 572, "[p]eople in an open society do not demand infallibility from their institutions, but it is difficult for them to accept what they are prohibited from observing." Recent events in our nation's history - - specifically, a highly contested presidential election resulting in repeated vote recounts, as well as court rulings that were subject to intense political scrutiny - - demonstrate that openness is necessary for both the peace of mind of the public at large and the sanctity of our judicial system. Reducing access to court records would create greater mistrust at a time when our nation needs greater understanding. Just as the courts have spoken in the past to preserve openness over judicial records and proceedings, so should they now take a further step and reinforce the importance of access in the electronic age by implementing Internet dissemination of court files. The same values and legal principles that sustained the courts' prior access jurisprudence - permitting first-hand observation of the legal system at work, cultivating trust in the administration of justice, acknowledging the press's role in conveying information to the public - are all relevant, even more so, when the question of access is transplanted into the digital world. The courts have a tremendous opportunity to enhance their relationship with the public by providing Internet access to case files. Anything short of permitting full access will amount to a retreat from the courts' prior presumptions. An institution that is otherwise lacking in transparency to the public can ill afford such a step backward. On the other hand, a pledge from courts to press ahead with expanded access to court files over the Internet will send a confident message about the harnessing of technology to improve democratic accountability. The public interest will be well served by such a commitment. II. Analysis of Proposed Policies The Model Policy attempts to provide a comprehensive plan for states to follow in allowing access to court records. Unfortunately, any "comprehensive" plan that attempts to limit access by category runs afoul of established First Amendment and common law access principles. With regard to the stated rules, our primary objection is that the Model Policy replaces the well-established presumption of openness with a balancing test that fails to account properly for First Amendment rights. Also, we take issue with many of the statements made in the "commentary" sections. We are concerned that the comments will be used as reference by some court administrators who are not familiar with access law, and that such comments may give the incorrect impression that records may be withheld in certain circumstances. The main issues with the Model Policy will be addressed briefly here. A. The Model Policy threatens the presumption of openness. As described in detail above, there is a well-established principle that court records are presumed to be open to the public. Records are available unless, in a particular instance with regard to a particular record, a person can prove that there is a compelling interest requiring secrecy and that secrecy is the least restrictive means of achieving that interest. See, e.g., U.S. v. McVeigh, 119 F.3d 806 (10th Cir. 1997). The standard is high and records should not be cut off from public access based on mere allegation of "privacy," "embarrassment" or some other vague assertion of potential harm. The Model Policy effectively eliminates this rule and replaces it with vague balancing tests described in sections 4.30 and 4.60, as well as the "purpose" described in section 1.00. The proposed test gives weight to vague assertions of "privacy" or "harm," without requiring proof of a compelling interest and without requiring proof that there is no less restrictive alternative. Furthermore, the proposed policy says that access should be restricted if the information could be used to harm someone by stalking, identity theft, or discrimination. It is difficult if not impossible to determine what that means, since any court record could potentially be used to aid a person who seeks to engage in illegal activity. The appropriate remedy for misuse of court records is to punish the person who engages in stalking, identity theft or discrimination, not to limit access to those records. The general balancing tests should not be used, as they ignore the constitutionally required presumption of openness and replace it with an arbitrary and vague "harm" standard. Furthermore, section 4.30, which imposes restrictions on broad categories of records, violates all principles of First Amendment and common law access. The current procedures - - allowing a presumptive right of access to all records unless a sealing order is entered based on proof of a compelling interest - - provide for a consideration of all interests. Such issues must be approached on a case-by-case basis since each case is different. Across the board pronouncements that certain types of records are "inappropriate" violates every principle of openness. For example, the comments mention that states may wish to impose an across-the-board ban on access to jury voir dire transcripts. The U.S. Supreme Court has already indicated that such a rule would be unconstitutional. In Press Enterprise Co. v. Superior Court (Press Enterprise I), 464 U.S. 501 (1984), the Court found that it was unconstitutional to restrict access to voir dire. In Press Enterprise Co. v. Superior Court (Press Enterprise II), 478 U.S. 1 (1986), the Court held that a First Amendment test must be applied in any case where public access would be restricted. Such cases require a careful examination of the facts in a particular case prior to making a determination as to whether public access should be permitted. Notably, the Court ruled in both cases that public access should be permitted despite protests by the parties. Press Enterprise II also set forth specific due process procedures that must be followed before access can be denied. The proposed policies do not accommodate those due process requirements. Thus, it seems clear that the across-the-board denials of access would be unconstitutional. B. The Model Policy tries to control the use and availability of information in court records after it has been released. One of the most problematic issues raised by the proposed policy is the attempt to control what happens to information after it is released. It is troubling not just because it raises issues beyond the courts' control, but because they have never previously been considered an issue of the courts' concern. 1. The Model Policy creates problems where none exist by raising copyright issues. The Model Policy suggests that the courts should withhold records if the records might be subject to copyright law.(6) However, copyright law was never intended to prevent distribution of public records. First, there is a longstanding principle that facts cannot be copyrighted. Feist Publications, Inc. v. Rural Tel. Serv. Co., (US 1991) (holding that a phone book was not copyrightable because it was merely a compilation of facts). Many court records may be nothing more than a compilation of facts and the Model Policy invites confusion by suggesting that such material can be copyrighted. More importantly, however, is the fact that courts and legislatures have recognized the relationship between copyright law and the First Amendment. There is a "fair use" exception to copyright law precisely to accommodate the First Amendment interests that would otherwise be extinguished if people could restrict the flow of information by claiming a copyright interest in material. Any use of a motion, brief or other court record would inevitably fall under the "fair use" doctrine in copyright law. The courts should not pre-empt these uses by refusing to disclose court records. 2. Information, once public, cannot be "unlearned." Throughout the proposed policy, the comments suggest that information must be updated or eliminated if the status of a case changes.(7) The comments to section 4.40 also require those who obtain "bulk" information to update or eliminate information that the court decides is no longer "appropriate." These rules suggest that the courts can force people to learn or unlearn information. It is not a realistic or appropriate goal for the courts. Court records are, at a minimum, historical records. Even if circumstances in a case change, the fact of the prior ruling or occurrence serves as a historical record of events. Requiring all persons who accessed the previous records to return it or destroy it is unreasonable and unworkable. Along the same lines, Rule 4.20, allowing inspection but not copying of a record that has historical value, has no justification. Outdated records may have legitimate research and statistical value. Those who seek access to such records should be entitled to the presumption of access that applies to all other records and they should not be forced to jump through hoops to obtain copies. Expecting those who receive records to destroy them is equally untenable. And, it is not an efficient use of court resources to micro-manage the information obtained by the public or determine whether each user has the most current information. 3. The proposed liability for inaccurate information is problematic. Comments to sections 4.20 and 4.40 suggest that there should be liability for those who disseminate inaccurate or outdated information. This is a shocking departure from current law. Tort law already provides for libel and privacy claims under certain circumstances. Merely having inaccurate or outdated information is not, in itself, a sufficient basis for liability. Courts have consistently held that the First Amendment interests in discussing matters of public concern are far too important to restrict speech merely because it is not correct. Tort law already accommodates the balance between First Amendment law and personal interests. In libel law, there is a specific privilege for information obtained from judicial or legislative proceedings. The "fair report privilege" protects defendants from liability when information is accurately reported from judicial proceedings or records. See, e.g., Sahara Gaming Corp. v. Culinary Workers Union Local 226, 984 P.2d 164 (Nev. 1999) (dismissing casino's lawsuit against union for repeating an allegedly defamatory fraud accusations made in a formal complaint filed in a judicial action; statement was protected by the absolute fair report privilege for judicial proceedings); Sipple v. Foundation For Nat. Progress, 83 Cal.Rptr.2d 677 (Cal. App. 1999) (dismissing claim against magazine for article describing domestic abuse allegations against consultant; fair report privilege allowed republication of allegation made during custody dispute). The Model Policy attempts to rewrite hundreds of years worth of law on this subject, and there is no apparent reason for doing so.(8) 4. The courts should not be concerned with how recipients of bulk or compiled data use it. The comments to sections 4.40 and 4.50, regarding bulk data or compiled data, indicate that the courts are concerned about how recipients of court records use the data and whether they "correctly interpret" the data. The recipients' use of records should not be a concern for the courts in deciding whether to provide public access. Anyone who uses information improperly will be subject to any existing tort laws that may be applicable. The courts need not restrict access based on the random fear that someone might not understand the information. C. The Model Policy improperly suggests that a court administrator can accurately guess in advance which records should be considered to be of legitimate public interest and which are "inappropriate" for public access. The Introduction to the proposed policy states that it is based on the premise that some court records may be "inappropriate" for public access and therefore access to those records should be precluded. Section 4.30 provides for across-the-board prohibitions on the dissemination of some categories of court records. Courts have always held that an across-the-board ban on records is improper precisely because it is impossible to guess which records will contain information of public interest. Often, the records a party seeks most adamantly to hide are the one that are of most vital public interest. This type of rule that leaves discretion to court administrators was proposed by the Maryland Judiciary when it proposed its first policy on access to court records and it was a point of contention for many of the groups that opposed the Maryland policy. The state changed its policy in response to public outcry. The public clearly opposed the notion of providing court administrators with discretion to dole out court records based on their own interpretation of "appropriateness." It leaves too much discretion to individuals and fails to comply with requirements of well-established access law. D. The Model Policy comment that it may need to be revised as technology or "public opinion" changes disregards legal precedent. The Introduction to the Model Policy states that the policy should be revised to conform to public opinion and technological changes. The notion that courts should operate based on "public opinion" is an affront to the Constitution and ignores the role of judges. Courts are sworn to uphold the Constitution, regardless of whether constitutional principles conform to the current public sentiment. Judges are supposed to rule based on law and evidence, not based on polls. To adopt court policy based on "public opinion" would result in constantly fluctuating policies. Citizens currently know that court records are accessible and such consistence and reliability is one of the greatest assets of the judicial system. E. The Model Policy adopts a standard from tort law that is inapplicable to access issues. The comments to section 1.00(a)(8) state that "privacy" should be protected and describes the "test regarding privacy" as follows: "(1) whether the release of information is highly offensive to a reasonable person and (2) whether the release of information would serve no legitimate public interest." This "test" appears to be taken from the Restatement (Second) of Torts, describing the tort of "invasion of privacy." The tort of invasion of privacy allows a person to sue another if s/he "publicizes" private information when disclosure would be highly offensive to a reasonable person, and the information serves no legitimate public interest. However, all of these terms have very specific legal meanings. They are meant to apply to conduct between private parties, not to conduct involving the courts. A careful examination of the law on this subject shows that a plaintiff cannot prevent the dissemination of information merely by claiming that some information is "private." The Restatement specifically says, " There is no liability when the defendant merely gives further publicity to information about the plaintiff that is already public. Thus there is no liability for giving publicity to facts about the plaintiff's life that are matters of public record, such as the date of his birth, the fact of his marriage, his military record, the fact that he is admitted to the practice of medicine or is licensed to drive a taxicab, or the pleadings that he has filed in a lawsuit." Thus, even under the language of the Restatement itself, there is no "privacy interest" in materials filed in a lawsuit. Also, the information must have no legitimate public interest. This issues was squarely addressed in Cox Broadcasting Corp. v. Cohn, 420 U.S. 469 (1975). In Cox, a television reporter obtained the name of a rape victim from court records and revealed her name on the air. The rape victim sued the television station for invasion of privacy. The Supreme Court ruled that such a disclosure cannot be an invasion of privacy. First, the information is contained in a public record. The Court specifically rejected the notion that a person could retain a privacy interest in a matter that becomes a public record. Second, the court noted that court cases of all kinds are inherently matter of public concern. There could not, therefore, be a case where a court record was "of no legitimate public interest." The invasion of privacy tort, therefore, is inapplicable to the analysis of disclosure of court records. Suggesting that such a standard should be used does not protect the public, but rather invites people to sue courts using a tort standard that would otherwise be deemed inapplicable. The courts are inviting lawsuits and trouble by recommending that the tort standard be considered. F. There has never been a problem with reluctance to use the court system. The comments to section 1.00(a)(10) suggest that public access to court records will result in an unwillingness to use the court system. Records have always been presumptively open and this has never been a problem. Furthermore, courts have spent substantial amounts of time and money over the last few decades encouraging litigants to use alternative dispute resolution in order to ease the demands on the court system. Now, creating a private court system within the public court system would be a waste of public resources. G. The proposal to give government the same level of "privacy" protection as a business is unjustified and contrary to democratic principles. With regard to Section 4.30(j), the Model Policy states: "The intent is to provide government the same level of protection as is provided to businesses." This provision cannot stand. Government is inherently a public institution. Government is owned by the People and accountable to the People. Businesses, on the other hand, are not. Businesses are private entities. It is inappropriate and unwise to say that government - - a public entity - - should have the same protections as business - - a private entity. The entire nature of our legal structure makes a distinction between public and private entities. This principle cannot be discarded so carelessly. H. Court administrators should not be deciding which information is "true" and which isn't. The comments to section 4.30 suggest that "a court might differentiate access to information based on the veracity of the information." Courts should not be in the business of deciding what information is "true" and what is not. Further, any information presented in support of a case is part of the record and should be available for public inspection. Potentially "false" information presented by a party can be as much a matter of public interest as verified information. I. Court administrators should not threaten to revoke the right of access. The comments to sections 4.40 and 4.50 suggest that courts can revoke any person's right to obtain records if they "abuse" the information.(9) The courts' records offices should not be in a position of determining whose use of information is acceptable and who has "abused" the right of access. This leaves far too much discretion in the hands of administrators who wish to punish people for their speech and violates the well-established principle that government agencies should not discriminate among members of the public based on the citizen's speech. Again, this was an issue raised in opposition to the originally proposed rules in Maryland where the public rejected the idea that a court could restrict access in its discretion. The only appropriate remedy for any potential "abuse" of a court record is to prosecute or sue a person who commits a crime or tort. We greatly appreciate the consideration of these Comments and respectfully request that the Model Policy be reconsidered, as it attempts to replace a long-established body of law in favor of public access with a vague balancing test and attempts to control the use of information far beyond that which is expected of the court system. We propose that state courts continue to follow the presumption of access to all court records, allowing for restrictions only where a judge has properly held a hearing to consider a sealing order based on evidence presented in a specific case. Footnotes: 1. In Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555 (1980), the U.S. Supreme Court established due process procedures that must be followed before a court may deny public access to a criminal proceeding. Since then, other courts have adopted similar principles, finding that due process requirements must be met before a court may limit public access to court proceedings or court documents. See, e.g., United States v. Cojab, 996 F.2d 1404, 1408 (2d Cir. 1993); Wilson v. American Motors Corp., 759 F.2d 1568 (11th Cir. 1985); Commonwealth v. Angiulo, 615 N.E.2d 155 (Mass. 1993); State ex rel. National Broadcasting Company, Inc. v. Court of Common Pleas, 556 N.E.2d 1120 (Ohio 1990). 2. This idea can be found in the Introduction to the Model Policy, the comments to Sections 1.00, 4.30, 4.40 and 4.60. 3. See, e.g., Under Seal v. Under Seal, 27 F.3d 564 (4th Cir. 1994) (the party seeking to overcome the presumption of public access "bears the burden of showing some significant interest that outweighs the presumption" and potential harm to reputation is insufficient to overcome presumption of access to court records); Grove Fresh Distributors, Inc. v. Everfresh Juice Co., 24 F.3d 893 (7th Cir. 1994) (assuming both a First Amendment and a common law right of access to civil litigation documents); Mack v. Derwinski, 2 Vet.App. 345 (CVA 1992), writ denied, 976 F.2d 746 (Fed. Cir.) (court refused to seal records showing petitioner's history of mental illness because his vague concerns of damage to privacy or possible future discrimination were insufficient to overcome the presumption of access to court records); Doe v. Frank, 951 F.2d 320 (11th Cir. 1992) (denying request to sue under fictitious name; embarrassment to plaintiff of having to admit his alcoholism was not sufficient to outweigh presumption of openness); Black v. U.S., 24 Cl.Ct. 461 (Cl.Ct. 1991) (potential for embarrassment or injury to reputation is insufficient to overcome presumption of access to court records); Davis v. Reynolds, 890 F.2d 1105 (10th Cir. 1989) (holding that witness' interest in preserving privacy and preventing embarrassment was not an "overriding interest" to justify closure); Littlejohn v. Bic Corp., 851 F.2d 673 (3d Cir. 1988) (newspaper entitled to access evidentiary materials submitted to court; party's desire for privacy was insufficient to overcome presumption of access); Rushford v. New Yorker Magazine, Inc., 846 F.2d 249 (4th Cir. 1988) (summary judgment pleadings and evidentiary documents should be open); Wilson v. American Motors Corp., 759 F.2d 1568 (11th Cir. 1985) (court should not seal record merely because company did not want it to be used against it in other cases); Matter of Continental Illinois Securities Litigation, 732 F.2d 1302 (7th Cir. 1984) (records submitted with summary judgment motion should be open despite alleged corporate interests); Brown & Williamson Tobacco Corp. v. F.T.C., 710 F.2d 1165, 1179 (6th Cir. 1983) (documents filed in civil litigation should be open because secrecy insulates the participants, masks impropriety, obscures incompetence, and conceals corruption; companies that seek confidentiality due to "potential harm" are probably hiding something of public interest); Joy v. North, 692 F.2d 880 (2d Cir.1982) (a conclusory statement that access will cause harm is insufficient to deny access to a court record; since records are the basis for the adjudication, only the most compelling reasons can justify the total foreclosure of public scrutiny); Matter of Search of 1993 Jeep Grand Cherokee, 958 F.Supp. 205 (D. Del. 1996) (although court records contained personal information, it was not of such an"intimate" nature to justify denial of public access; potential for embarrassment or adverse impact on reputation did not justify sealing records); Picard Chemical Inc. Profit Sharing Planv. Perrigo Co., 951 F.Supp. 679 (W.D.Mich. 1996) (once report was submitted to court it became part of public record and subject to public access; harm to reputation was insufficient to deny public access); NBC Subsidiary, Inc. v. Superior Court, 20 Cal.4th 1178, 980 P.2d 337, 86Cal.Rptr.2d 778 (1999) (finding that court transcripts could not be withheld from public scrutiny based on parties' claim that case was not of legitimate "public interest," and finding that all cases are presumptively of public interest and therefore records are presumptively accessible); Hurvitz v. Hoefflin, 84 Cal.App.4th 1322, 101 Cal.Rptr.2d 558 (2000) (finding that privacy interests were insufficient to overcome public access); Copley Press, Inc. v. Superior Court, 6 Cal.App.4th 106, 111, 7 Cal.Rptr.2d 841 (1992) (holding that the press had a right to inspect the clerk's "rough minute" books of a trial court; First Amendment provides "broad access rights to judicial hearings and records . . . both in criminal and civil cases."); State v. Cottman Transmission, 542 A.2d 859 (Md. App. 1988) (First Amendment and state constitutional right of access apply to proceedings and documents in civil lawsuit; closure not justified merely to minimize damage to corporate reputation). 4. See ccap.courts.state.wi.us/internetcourtaccess 5. Shaver, Delegation's Help Asked on DWI Laws, Washington Post (Oct. 19, 2000); Fallis & Shaver, Duncan Upset Over Drunken Driving, Washington Post (Sept. 29, 2000); Fallis & Shaver, Loopholes Benefit Defendants, Washington Post (Sept. 25, 2000); Fallis & Shaver, A License to Kill, Washington Post (Sept. 24, 2000). 6. See Comments to sections 3.40 and 4.30(a). 7. See comments to sections 4.20 and 4.40. 8. For similar reasons, we also oppose the comment to section 3.10 that proposes creating liability for those who file "irrelevant" material in the court file. Parties and their counsel should not have to fear liability for litigating their cases freely. Judges may determine which evidence is admissible and which is not. Imposing liability on parties for proffering evidence that is ultimately rejected would severely restrict the litigants' ability to use the court system. 9. This is reinforced by sections 8.20 and 8.30 that require courts to advise employees and the public about the "consequences" for "abuse" of information. |