BEFORE THE MARYLAND JUDICIARY In the Matter of Access to Court Records Containing Criminal History Record Information, Draft Administrative Order; and Draft Judiciary Policy on Public Access to Records   COMMENTS OF THE REPORTERS COMMITTEE FOR FREEDOM OF THE PRESS The Reporters Committee for Freedom of the Press submits these comments in response to the Maryland Judiciary's invitation for public comment on its proposed Policy on Public Access to Records and Draft Administrative Order. These proposals would limit public access to electronic records and limit public access to records containing criminal histories. The Reporters Committee 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 publishes a quarterly magazine, The News Media & The Law, as well as a bi-weekly newsletter, News Media Update. The Committee also produces several Freedom of Information publications, including guides to using the federal FOI Act and each of the open records laws in the 50 states and the District of Columbia, as well as a guide to state laws on access to electronic records. The Reporters Committee also sponsors, as a special project, the FOI Service Center, which advises reporters on access to governmental records and proceedings.   Purpose of the Reporters Committee Comments The Reporters Committee has reviewed the Draft Judiciary Policy on Public Access to Records [hereinafter "Draft Judiciary Policy"] and the Draft Administrative Order In the Matter of Access to Court Records Containing Criminal History Record Information [hereinafter "Draft Administrative Order"]. The two documents [hereinafter referred to jointly as "the Proposals"] demonstrate the Judiciary's concern with personal privacy. Although the Proposals are well meaning and privacy considerations are certainly legitimate under some circumstances, The Reporters Committee is concerned that the extensive limitations in the Proposals are overbroad and misplaced. 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 the Proposals give record custodians too much discretion to make access decisions based on the content of records or the requester's intent for their use, and that the Proposals limit access to records that clearly serve the public interest. We also raise concerns that the Proposals would be contrary to existing First Amendment and FOI laws.   Records that are Available to the Public Should Remain Available to the Public, As New Technologies Develop and Permit Quicker and More Efficient Means of Accessibility. As the law currently stands, the public is entitled to access to court records of all types. 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.(1) The present law is consistent with general principles of First Amendment and FOI law. We presume that court records are public records available to the public without limitation. As new technologies develop that allow quicker and more efficient access to information, the laws permitting broad access should not change. Electronic access to court records will permit a citizen to obtain information more quickly. Electronic access may also help a citizen perform a more thorough, comprehensive search of records. The language of the Proposals implies that such quick and efficient access would somehow create an invasion of privacy or otherwise result in negative consequences. 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, those who take advantage of the public judicial system for the resolution of civil disputes place themselves and their claims in a public forum. To the extent a litigant places personal information about himself in the public record, the litigant has no expectation of privacy in such information. Thus, any information that is contained in a court record is not subject to a privacy interest. Third, those who are hailed 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. XI. A public trial, however, means that the accused must publicly defend himself, and any information that he 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. Further, once a criminal is convicted, the public has an interest in following that person's behavior for its own safety and protection. Megan's Law, the new genre of law that discloses the residences of convicted child molesters, is a prime example of the public's interest in information that may invade the privacy of a convicted felon. If a convicted child molester were to move into a neighborhood, its residents should have access to such information so that they may take steps to protect their children. While the disclosure of such information may be embarrassing for the convicted child molester, the public's right to know of the molester's criminal history is substantially stronger than the molester's interest in keeping such information private. Megan's laws have been passed by the federal government and every state. The Judiciary may also wish to protect the privacy interests of victims or witnesses in criminal proceedings. Although this Judiciary's intent is undoubtedly well meaning, the concerns are misplaced. 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. Publicker Industries, Inc. v. Cohen, 733 F. 2d 1059, 1068-69 (3d Cir. 1983) (public access would discourage perjury and would encourage full disclosure by witnesses). Courts have also noted that public knowledge of such proceedings may encourage previously unknown witnesses to come forward. See, e.g., 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"). 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. Access to electronic records would have numerous other benefits that result from the free flow of information. For example, there have been recent cases where children have died from extensive abuse in foster homes.(2) Although court records or other government records may contain information about abusive homes, no one person has the time or ability to search each and every written record stuffed in a file cabinet to ascertain which homes are safe and which might potentially present a danger to the 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. Public access to court records would also allow 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. Further, 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.(3) 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 more easy 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. In the future, it is likely that all records will be kept electronically rather than on paper. As more and more 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. 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. One court has examined this issue throughly and has concluded, rightfully, that public access to court records must be preserved to ensure our tradition of open government and accountability. The Federal District Court for the Northern District of Ohio has set a fine example by permitting electronic access to court records and has demonstrated that such access can be successful. The Reporters Committee urges the Maryland Judiciary to look to its example as a model for handling the issue of electronic access to public records.   The Proposals Fail to Allow Public Access to Public Records Many terms of the Proposals seem to limit access based upon the content or proposed use of the information sought. The Draft Administrative Order specifies, in paragraph 4, that criminal history information may not be disseminated unless the person is engaged in "legitimate research, evaluation, or statistical activities." The Draft Judiciary Policy, at paragraph III(f)(2), provides that dial-up access may be provided if the requester has a "legitimate business use." Similarly, sections III(G)(2) and III(G)(3) allow for access limitations depending upon the intended use of the information. Such arbitrary and vague conditions allow court personnel to act as editors, allowing access to those they like and denying access to those whose opinions or purpose may be disliked. A reporter, for example, could be restricted from access to court records if a records custodian were to determine that he did not approve of the content of the reporter's publications. Such content-based restrictions fly in the face of basic principles of the free flow of information in a democracy. Courts have long acknowledged that they should not act as editors, nor should they restrict information or opinions with which they disagree. Paulsen v. Personality Posters, Inc., 299 N.Y.S.2d 501, 507 (NY App. 1968) ("It is not for this or any court to pass value judgments predicated upon ephemeral subjective considerations which would serve to stifle free expression"); Ann-Margret v. High Society Magazine, Inc., 498 F. Supp. 401, 405 (S.D.N.Y. 1980) ("it is not for the courts to decide what matters are of interest to the public"). Similar concerns are presented by other provisions of the Draft Judiciary Policy. Section III(B)(2) allows the court to restrict the number of records a person may see in a day and Section III(E)(3) allows the court to restrict access to records if requests are deemed "unduly burdensome." Such terms permit a court to censor information merely by deeming a request too voluminous or unduly burdensome. The requirements of sections III(E)(1), III(F)(1), and III(G)(1), which require persons requesting records to state their name and affiliation, imply that a citizen's identity or affiliation would make a difference in determining whether and to what extent such citizen would be able to access court records. Presumably, court personnel would be permitted to decide who should be entitled to access to court records based upon their identity or affiliation, which would effectively be a form of censorship and which is contrary to the presumption that the public - - anyone in the public - - should have access to court records.   The Proposals Would Violate the Maryland Open Records Act The Maryland Open Records Act specifically includes court records in its definition of public records, and it specifically provides that such records should be available to the public. The Judiciary appears to rely on the decision in United States Department of Justice v. Reporters Committee, 489 U.S. 749 (1989), to support the proposition that the public may be denied access to court records and criminal records. Such reliance, however, is unfounded. Reporters Committee addressed the issue of FBI rap sheets - - nationwide compilations of records that were public at their source. The case addressed the "practical obscurity" of these otherwise public records without suggesting that state or local courthouses should no longer make such records available to the public. Furthermore, the Reporters Committee decision was specifically addressed by Congress in enacting the 1996 Amendments to the federal Freedom of Information Act, clarifying that government records should be available to the public regardless of the requester's purpose. In Reporters Committee, the Supreme Court expanded the scope of the FOI Act's Exemption 7(c), limiting access to federal law-enforcement records. Exemption 7(c) allows the government to withhold law-enforcement records if the release "could reasonably be expected to constitute an unwarranted invasion of personal privacy." 5. U.S.C. § 552(b)(7)(c). The Supreme Court decided that the public interest must focus on whether the release of information would "'open agency action to the light of public scrutiny,' rather than on the particular purpose for which the document is being requested." Reporters Committee, 489 U.S. at 772 (quoting Department of Air Force v. Rose, 425 U.S. at 372). Instead of the broad presumption in favor of disclosure, as Congress had intended, the Supreme Court reversed the presumption to one in favor of secrecy. Reporters Committee, 489 U.S., at 774. Writing for the majority, Justice John Paul Stevens articulated what has become known as the "central purpose" test: "[T]he FOIA's central purpose is to ensure that the Government's activities be opened to the sharp eye of public scrutiny, not that information about private citizens that happens to be in the warehouse of the Government be so disclosed." Id. at 774. Critics of the Reporters Committee decision have noted that requiring FOI Act requests to meet this "central purpose" test is in opposition to the law's stated goal of "broad disclosure." And as Justice Ruth Bader Ginsburg noted in a later case, "[t]he Reporters Committee 'core purpose' limitation is not found in FOIA's language." United States Department of Defense v. Federal Labor Relations Authority, 510 U.S. 487, 507 (1994) (Ginsburg, J., concurring). Congress therefore sought to remedy the Reporters Committee decision by reaffirming its original vision for the FOI Act through enactment of the Freedom of Information Amendments of 1996 (1996 Electronic FOIA Amendments). In addition to updating the FOI Act to reflect an era when more and more government documents are generated and stored electronically, the 1996 Amendments clarify Congress' intent that a FOI Act request may be made for "any" purpose. The Findings section of the 1996 Amendments states that the purpose of the FOI Act is to "establish ... the right of any person to obtain access to [agency records] ... for any public or private purpose." Electronic Freedom of Information Act Amendments of 1996, Pub. L. No. 104-231, § 2(a)(1), 110 Stat. 3048 (Oct. 2, 1996) (emphasis added). This constitutes explicit recognition by Congress that a FOI Act request may be made for "any purpose."(4) Maryland has similarly enacted broad FOI laws, rightfully guaranteeing the public a right of access to government documents, including court records. It would be contrary to the purpose and spirit of such laws to limit public access to court records merely because the form of the records has changed to keep up with advances in technology. Thirty years ago, the New Mexico Supreme Court foresaw the potential expansion of technology and wisely ruled that the "right to inspect public records should . . . carry with it the benefits arising from improved methods and techniques of recording and utilizing information contained in these records, so long as proper safeguards are exercised as to their use, inspection and safety." Ortiz v. Jaramillo, 483 P.2d 500 (N.M. 1971).(5) Reporters Committee urges the Judiciary to similarly embrace new technologies as a benefit to the public and allow public access to court records, as intended by the state FOI laws.   The Proposals Would Violate First Amendment Principles of Public Access to Court Documents The U.S. court system adheres to the presumption that court records are public records. Our system is based on the belief that the free flow of information is essential to an informed society and access to court records is a necessary factor in the free flow of information. Privacy interests are not a sufficient justification for ignoring such fundamental First Amendment principles. This issue was addressed just last week by the California Court of Appeal in Hurvitz v. Hoefflin, 2000 Cal. App. LEXIS 888 (November 20, 2000). In Hurvitz, a doctor was accused of gross improprieties. Former employees filed declarations describing the doctor's improper conduct and the patients who were victims of his improper conduct. The disclosure of such information was quite embarrassing for the patients. However, in considering an order to seal the declarations, the court ruled that the patients' privacy interests did not outweigh the First Amendment interests in allowing public access to the court documents. Such a ruling is consistent with the long-standing principle that court records should be readily available for public inspection. Perhaps most importantly, the Proposals, as worded, are 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, the 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.(6) The Proposals, as worded, do not specify any compelling need, nor is there evidence of any compelling need to limit public access to court documents. The Reporters Committee questions whether such Proposals could pass constitutional muster.   Conclusion We greatly appreciate the Judiciary's consideration of these comments and respectfully request that the Judiciary reject the Proposals in their current form. Lucy Dalglish, Executive Director The Reporters Committee for Freedom of The Press Ashley Gauthier, Legal Fellow The Reporters Committee for Freedom of the Press December 1, 2000 Footnotes: 1. Courts have held that there is a presumptive right of access to court documents. 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); Globe Newspaper Co. v.Fenton, 819 F. Supp. 89 (D. Mass. 1993) (right of access to court record indexing system). 2. See, e.g., Roche, The Crisis of Foster Care, Time Magazine, November 13, 2000, at p.74. 3. 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). 4. This is not the first time Congress has clarified its vision of the law after a Supreme Court interpretation of an FOI Act provision. In two earlier instances, Congress has amended the FOI Act in response to Supreme Court decisions. In 1974, Congress revised Exemption 1, which protects documents for national-security reasons, in response to a Supreme Court decision, EPA v. Mink, 410 U.S. 73 (1973), that held classified documents were not subject to judicial review. The exemption now allows for limited judicial review. The Supreme Court's ruling in Administrator, FAA v. Robertson, 422 U.S. 255 (1975), prompted Congress to modify Exemption 3 and to make clear its judgment that agencies should have limited discretion to deny requested documents. 5. The reference to "proper safeguards" did not mean that access or use should be limited, but rather that the technology be preserved. In Ortiz, the petitioner sought access to tape recordings. The court ruled that the recordings were public records and should be released, as long as there was a safe and accurate copy of the tape recording. 6. 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); Dow Jones & Co. v. Kaye, 90 F. Supp. 2d 1347 (S.D. Fla. 2000); 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).