Model policy objections

From the Spring 2002 issue of The News Media & The Law, page 9.

The Reporters Committee criticized the model policy on access to court records on many grounds:

• The Model Policy curtails the traditional rule that court records are presumptively open to the public. It replaces the presumption of openness with a system of rules that permits access to some records, presumes no access to others, and lets the courts use a balancing test to decide whether other records should be accessible. The balancing test weighs the public interest in access against the “risk of harm” if the record is released.

• The policy suggests, for example, 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.

• The Model Policy suggests that the courts should withhold records if the records might be subject to copyright law. However, copyright law was never intended to prevent distribution of public records. There is a longstanding principle that facts cannot be copyrighted, and the “fair use” doctrine would most likely apply to many uses of information contained in court records. This aspect of the Model Policy creates problems where none currently exist.

• The Model Policy suggests that information must be updated or eliminated if the status of a case changes. It requires 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.

• The Model Policy proposes that there should be liability for those who disseminate inaccurate or outdated information. It also proposes liability for those who file “irrelevant” material in cases.

• The Model Policy provides for across-the-board prohibitions on the dissemination of some categories of information or court records, including: Social Security numbers; copyrighted material; child support materials; juvenile files; adoption and custody records; guardianship and conservatorship records; mental health proceedings; information about victims, witnesses, informants, or jurors; wills; medical or psychological records; records containing descriptions of DNA or other genetic material; search or arrest warrants; addresses of litigants; photographs containing violence, death or children; any financial information; and sealed or “confidential” records.

• The Model Policy attempts to adopt a “privacy test” from tort law to apply to the release of court records. It states 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.” But even under the language of the Restatement of Torts, from where the language seems to come, there is no “privacy interest” in materials filed in a lawsuit.

• The Model Policy states that it should “provide government the same level of protection as is provided to businesses.” However, government is inherently a public institution. 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 Model Policy suggests that “a court might differentiate access to information based on the veracity of the information.” In essence, the court would decide what information is “true” before it would release a record.

• The Model Policy suggests that courts can revoke any person’s right to obtain records if they “abuse” the information. 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.