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Bar News - February 6, 2004 Open Courts & Technology ~ Part 4 By: Katharine Webster Associated Press Other Courts' Experiences Show Benefits, Pitfalls of Online Records Copyright 2003 By The Associated Press. All Rights Reserved. Originally published Wednesday, December 3, 2003. Posted until Feb. 1, 2005 with special permission from AP Digital. Want to read the handwritten motions filed "in the name of Allah" by Zacarias Moussaoui, the man accused of conspiring with the Sept. 11 hijackers? So do hundreds of other people, mostly reporters. Early last year, after demand for photocopies of documents in Moussaoui's case threatened to overwhelm clerks at the U.S. District Court in Alexandria, Va., the federal court system decided to allow online access to the records. Before that, "95 percent of my time was spent talking on the phone to reporters," said court clerk Elizabeth Paret. "We were getting slammed." As New Hampshire moves toward full computerization of court records, officials weighing what to put online are looking to the experience of other jurisdictions, as well as guidelines developed for national organizations of state court judges and administrators. The federal courts have the most experience with online records. Some have put nearly everything online, including full motions and orders, with no reported problems. The rest are gearing up to do so by June 2005. But Alan Carlson, president of the nonprofit Justice Management Institute and co-author of the guidelines, says state and local courts are moving more slowly. Carlson says he knows of no state that routinely posts all case documents online, though some post all their dockets -- chronological lists of motions, hearings and orders -- in each case. At one end of the spectrum are courts where judges or clerks have decided they are required by law to make everything public online that is public at the courthouse. That's what the elected clerk of Manatee County, Fla., did, including posting divorce records that contained references to confidential juvenile matters, said Steve Henley at Florida's Office of the State Courts Administrator. Henley said some family court judges were outraged. "If somebody wants to identify vulnerable 13-year-old girls, you look for the ones who are running away, or have abuse issues," Henley said. "Nobody wants to go to the court and say, 'I'm looking for cases of 13-year-old wild girls,' but if they can search them online," they might, he said. The Florida Legislature responded by outlawing online postings of family, probate and juvenile court records, as well as death certificates and military discharges, although some of those records are public on paper. At the other end of the spectrum are courts that have posted nothing online. Carlson says most fall somewhere in between, posting dockets and final rulings online, but not motions, forms or exhibits. Even dockets can be tricky in criminal cases, said Melissa Farley, spokeswoman for the Connecticut Judicial Branch. Connecticut posts civil, family, small-claims and housing-court dockets, but not criminal dockets yet. Under Connecticut law, when someone is acquitted or prosecutors drop charges, the court must seal the file and remove the docket -- including the defendant's name -- from public view, Farley says. But documents posted online can be captured and saved by anyone, and may even remain available online from private database companies, Farley says. Access advocates say the same is true with paper records. "So be it: Once it's out, it's out," said Gregory Sullivan, a Manchester lawyer who teaches First Amendment law and represents The Union Leader. "Either you have the right to see it or you don't." Even the federal courts have wavered on criminal cases. Although some initially posted criminal cases online, the postings were removed in 2001 for security reasons. Among the fears was that mobsters would use sentence-reduction motions to identify co-defendants who were cooperating with prosecutors. The policy-making Judicial Conference of the United States relaxed its stance last year and this year said all criminal cases can go online once there are guidelines for sensitive information. Superior Court Judge Larry Smukler, who is directing work on New Hampshire's electronic access policy, has posted documents in several tobacco lawsuits online without experiencing any problems. But Smukler says the openness of the federal courts probably won't be adopted wholesale by state courts, which handle divorces, domestic violence and sex-crime cases. At least initially, New Hampshire will move cautiously in allowing Internet access to court records, he says. "You don't always know where all the potholes are until you travel down the road." On the Net:
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