THE STATE’S TRIAL COURT has upgraded its outmoded computer system to allow lawyers to electronically file case records and to allow judicial decisions to be shared automatically with other government agencies. But proposed regulations governing the system continue to limit access by the general public to court records and bar access to any documents dealing with court administration and management.
Jennifer Donahue, a spokeswoman for the court, said the new system allows lawyers and other interested parties to file and read case documents electronically and permits clerks to enter docket information in real time.
Donahue also said the new system allows the state courts to electronically interface with federal systems as well as other agencies who work with the state courts, such as the Registry of Motor Vehicles, which handles court-ordered license suspensions. For example, the RMV in most instances will now be able to receive information on a court action within a day of the decision.
“It is now an electronic process and 80 percent of the time the results get back the next day,” Donahue wrote in an email response to questions. “It is faster, more accurate, and cheaper.”
Under the proposed rules, only docket information, party name, attorneys, and calendar information for a case would be available remotely to the public. The limited public access means that someone in Springfield who needs information on a case on Cape Cod would have to drive to Barnstable to retrieve the records.
The new system currently allows public access to civil and Land Court records, and eventually is expected to add criminal records. The new system is an improvement over the court’s now-defunct website, allowing broader searches by type of case and type of party. The available information is more detailed than before and the entries from clerks are more uniform.
Civil cases would have the widest accessibility, while cases involving juveniles, probate, or domestic violence and harassment prevention orders would be restricted. People searching online for information on criminal cases, once they become accessible, can only do so if they know the case’s docket number. The new regulations cite the Criminal Offender Records Information statute (CORI) as the basis for restricting remote access. Searching by name in criminal cases can only be done at terminals at the courthouses.
The court has asked for public comment through March 4 on the new regulations, which are available on the Trial Court’s web site. Donahue said none of the rules will go into effect until court officials review public comments.
The proposed rules are disappointing to those who had hoped that the revamping of the court’s archaic website would bring with it greater public access, the type available with the federal court system, which makes most records from courts around the country available online.
“Ultimately our goal should be to be the leader,” says Pamela Wilmot, executive director of Common Cause Massachusetts, whose group testified at hearings during the drafting of the regulations. “We are a technologically savvy state with a lot of resources at our disposal. It’s always disappointing we don’t effectively put that to use. It’s part of the role of a democratic society to operate in the public view.”
Donohue said the restrictions on public access are “consistent with the intent of current laws and statutes.” The proposed regulations, for example, cite previous decision by the Supreme Judicial Court as well as state and federal appeals courts in noting the public is not entitled to full access to all court records.
“While the public has a right to obtain a copy of a court record…, the presumption of public access is not absolute,” the proposed regulations state. “The public’s qualified right of access includes the right to view or ‘inspect’ a non-impounded record free of charge during the court’s regular business hours. A limitation of this right exists in the court’s ‘inherent equitable power to impound its files in a case and to deny public inspection of them when justice so requires.’”
While the new rules are not what advocates for open access had hoped for, one expert says the approach of the Massachusetts Trial Court is not unusual. William Raftery, an analyst with the Virginia-based National Center for State Courts, says only Florida offers near-complete access to court documents while Texas and New York offer some access on a limited basis.
“Massachusetts is by no means an outlier,” says Raftery. “They are just about where the majority of US state courts are, which is let’s try to implement some type of access to the best of our ability.”
In some regards, said Raftery, Massachusetts is ahead of many other states; it’s one of only about a dozen states that offer a statewide repository for even just the docket information. Most others leave it up to the individual counties to set up and run websites.
Raftery said part of the problem is the concern that a publicly accessible website for courts can be misused, especially by landlords or prospective employers who utilize it as a “back-of-the-envelope-background check.”
“The push-pull dynamic is on the one hand, these are public proceedings, public records, and there’s a right to access and the general public shouldn’t be stymied,” he said. “The counter is privacy and these records should be restricted based on who the individual is, fears over misuse of the information. Common names bring up problems.”
Raftery also said that while money can be saved by having documents filed and accessed electronically, which is just beginning in Massachusetts, the cost of getting such a system up and running is prohibitive.
“It’s resources, simply resources,” he said. “The technology is there, it’s a question of resource allocation. What’s been driving more and more states to head toward e-filing is resource allocation. It’s pennies on the dollar [to have e-filing instead of paper] but the initial investment is huge.”
Beyond the limited access to court case records, the new rules specifically state nothing about how the court is run is considered a public record and emphasize that xtends not only to courts but to areas such as the Probation Department, which is just now emerging from a longtime scandal involving wheeling and dealing for jobs. The courts, like the Legislature, are specifically exempt from the state’s Public Records law.
Wilmot, of Common Cause, says that while the Public Records Law allows the courts to keep those records out of the public view, court officials could have taken the initiative to pull the curtains back and bring some transparency to a normally cloaked system. That, she says, can prevent future scandals.
“The judiciary has many functions that are private but in terms of its management it’s actually a government institution,” she says. “Being able to follow a paper trail is important. Any time you have secrecy in any institution it is much easier to hide wrongdoing and fraud and waste and abuse. That’s what transparency is about. I don’t have any doubt if there was more transparency, we would not have seen the same kinds of problems or they would have been exposed earlier.”
You know, access to the Court’s new website would be helped by a link to it in the story…
Sorry, they were in there but must have gotten dropped in transporting. They are back in now.
Seems to me with the limited public access requiring someone in Springfield to drive to Barnstable to retrieve the records on a Cape Cod case there’s an opportunity for a cottage industry to operate by having a person stationed at a courthouse computer terminal ready to convey the details of that case at a cost to the inquiring public. I’m willing to bet someone’s livelihood is being given more consideration by the court’s new rules than the public’s right to know.
Jack Sullivan did a nice job providing context on the courts’ public access by bringing in the perspective of Common Cause Massachusetts which brings me to other issues in the courts like the Commission on Judicial Conduct which dismisses 90% of the complaints against judges, doesn’t disclose the names of any of those judges in its annual report, and the 10% not dismissed were informally resolved. One of those judges had three separate complaints establishing the judge had engaged in a pattern of treating parties appearing before him discourteously and the judge agreed to retire. Another judge with two complaints entered into an Agreed Disposition in which the Commission privately admonished the judge for that misconduct. This is an area worth a look.
Another area to investigate is double dipping. The Lowell District Court Clerk of Courts has been working for 22 years, makes $135,000-per-year and he’s a retired state trooper collecting a pension. With the median household income in Massachusetts declining and the unemployment rate nowhere near 0% how is something like that allowed and how many people are doing it in this state?
Also, Commonwealth could take a hard look at Probate Court Massachusetts. The New York Post recently ran an article, “$1.6M isn’t enough to keep this city-appointed lawyer awake in court,” about the “patronage mill known as Surrogate’s Court” where estates are handled and the politically connected can make a killing levying fees on estates. The article noted political patronage has plagued New York City’s Surrogate’s Courts for decades and quoted Robert F. Kennedy in 1966 comparing them to “a political tollbooth exacting tribute from widows and orphans.” I wonder if something like that is going on in our state? If you go on the Massachusetts Probate Court’s website there’s a section called “Fee Generating Appointments.” Are those political plums?
Commonwealth could also examine what’s going on with bail in this state. The Massachusetts Constitution states “No magistrate or court of law, shall demand excessive bail or sureties, impose excessive fines, or inflict cruel or unusual punishments” but bail magistrates are only paid their fee if there’s a bail amount. How is that a reasonable approach to determining whether the person should be released on bail or on personal recognizance?