The Honorable Robert M. Bell,
Chief Judge
The Court of Appeals of Maryland
Robert C. Murphy Court of Appeals Building
Annapolis, Maryland 21401

Your Honor:

The Ad Hoc Committee on Public Access to Court Information, appointed by you in March 2000 on the recommendation of the Judicial Cabinet, was charged with developing a policy because of the identified need for guidelines to deal with, among other things, requests for: (a) access to, or copies of, large quantities of records; (b) record searches; (c) creation of records by computer programming to retrieve and compile data from within the records; and (d) on-line access to the Judiciary's computerized database. The policy to be developed was to supplement and be consistent with the Public Information Act and other statutes relating to public records in the custody of the Judiciary.

In response to that charge, the Committee submits this Report and transmits with it a draft policy on public access to court records and a draft administrative order relating to public access to criminal records. The Committee recommends the adoption of the draft policy, with the exception of §F (Requests for Dial-up Access). With respect to §F of the policy and with respect to the entire draft administrative order, the Committee recommends further study in light of the comments received in response to the publication of the draft policy and administrative order for public review and comment. For that purpose, the Committee recommends the appointment of a special committee, consisting of not only representatives of the Judiciary but also representatives of other State agencies, especially those concerned with law enforcement and public safety, the legislature, the media, current users of electronic access to computerized court records, privacy experts, and other interested persons, to consider the issue of electronic access to computerized court records.

To facilitate your consideration of the policy and administrative order, and the Committee's recommendation for the appointment of a special committee to further study and make recommendations concerning electronic access to court records, the Committee submits the following explanations of the problems and issues intended to be addressed by the policy and administrative order, the source materials considered by the Committee in drafting them, and the comments received in response to their publication.

The concerns presented to or identified by the Committee for consideration in drafting the policy and administrative order include, among others, the following. One concern is the increasing volume and scope of requests received by the Court Information Officer, the Judicial Information System ("JIS") personnel, and the court clerks for: (1) access to, or copies of, large quantities of records (e.g., a request for all civil case docket entries from a particular jurisdiction for the past 5 years), (2) record searches (e.g., a request for all cases, civil or criminal, in which a particular individual is a party), (3) creation of records by computer programming to retrieve and compile data from within the records (e.g., a request for all criminal cases for the past 3 years in which a motion for sentence reconsideration resulted in modification of the sentence), and (4) on-line access to the Judiciary's computerized databases. Related to this first concern is the not-insignificant expenditure of State resources to respond to large scale requests and requests for creation of records; complying with such requests not only delays the accomplishment of court projects, but also causes taxpayer-funded personnel and equipment to be put to use for the benefit of private, often commercial, requesters. Another issue is the apparent lack of uniform guidelines for the court personnel to follow in processing requests for access to or copies of court records, including guidelines addressing the need for an adequate identification of the record(s) to which access is sought, so as to distinguish a request for access to public records from a request for an individual background check or title search or the like. A third is the matter of the constantly growing list of users of electronic access to the courts' databases, including commercial vendors of criminal background checks, without the implementation of privacy protocols. A fourth is the concern about the potential evisceration of the safeguards afforded by the laws governing the Central Repository maintained by the Department of Public Safety and Correctional Services caused by the relatively unrestricted access to computerized court records, including both conviction and non-conviction criminal history information.

In order to draft a policy to address these concerns, the Committee considered a wide variety of materials. To develop a basic framework within which to formulate a specific policy to address the identified concerns, the Committee reviewed materials from treatises and reports relating to public access to court records and privacy concerns. Some of these materials included: (1) Sixth National Court Technology Conference, National Center for State Courts, September 14-16, 1999, Session 403: "Caught in Converging Technologies: The Modern Court Administrator and the Privacy/Access/Security Conundrum" by Lawrence P. Webster, State Court Administrator, Wilmington, Delaware; (2) the "Executive Summary" of the draft "Report of the National Task Force on Privacy, Technology and Criminal Justice Information," issued by SEARCH, the National Consortium for Justice Information and Statistics, which held a national conference in Washington D.C. on May 31-June 1, 2000, and "Summary of Survey Findings: Public Attitudes Toward Uses of Criminal History Information" prepared for the Bureau of Statistics, U.S. Department of Justice and SEARCH; (3) "Privacy Design Principles for an Integrated Justice System" issued by the Office of Justice Programs in the U.S. Department of Justice, April 5, 2000; and (4) "In the Balance: Toward a Model for Public Stewardship of Electronic Government Records," the "Final Report of the Governor's Work Group on Commercial Access to Government Electronic Records," State of Washington, Department of Information Services, November 1996. While a comprehensive summary of the materials reviewed by the Committee is not feasible, the following excerpts highlight some of the commentary that was influential in the Committee's deliberative process.

(1) From: Sixth National Court Technology Conference, National Center for State Courts, September 14-16, 1999, Session 403: "Caught in Converging Technologies: The Modern Court Administrator and the Privacy/Access/Security Conundrum" by Lawrence P. Webster, pp. 8-9:

While the procedures for requesting data from courts vary greatly from state to state, there are common elements. In crafting or modifying a data dissemination rule, one should include reference to whom the request should be submitted. An explanation of the process that will be used to evaluate the request and make a decision, a form or description of the information necessary to process the request, and any relevant disclaimers also would be useful. ...

Information typically required by state courts for processing information requests includes identification, contact and affiliation information for the requestor. A detailed description of the information being sought also is required. Requestors should not be required to have a detailed knowledge of data storage systems. Many states also require information about how the information will be used, to whom it will be distributed or disclosed, and reasons why it is being sought. ... 

...

The decision to release information is typically based on any number of the following criteria:

• Availability of data
• Specificity of request
• Potential for violating privacy rights of individuals
• Potential for abuse or misinterpretation of data
• Potential for disruption of internal, ongoing work of the court
• Existence of records or data (as opposed to creating new data)
• Repetitive submissions of requests (similar request submitted one to six months earlier)
• Intentional attempt to harass or interfere with court operations
• Resources required for responding to requests
• Payment of fees
• Agreement to hold court harmless for inaccurate data
• Uniform treatment of requestors

... In particular, the report gives attention to the public's concern about privacy and the technological changes which make previously inaccessible court records widely available.⁽¹⁾

... in looking at the approach to criminal history record information, the Task Force recommends a global policy to address criminal history record information (and including juvenile justice record information) largely without regard to whether this information is held by law enforcement agencies (i.e., the central state repositories), the courts or commercial compilers and aggregators. The Task's Force's rationale for this approach is that the privacy and information implications are largely unaffected by whether the information is sourced to the courts, law enforcement or commercial compilers.

An integrated justice system needs to address privacy within the enterprise-wide framework to manage privacy effectively. By addressing privacy directly within the framework at the planning stages, the resulting technology has the best chance of being privacy compliant. Otherwise, the result is having to manage unintended effects regarding privacy produced by new technology; and technology can have extensive unintended effects. (p. 3.)

Rules, or protocols, for sharing information within the criminal justice system (e.g., police, prosecutors, the courts and corrections) would differ from the rules used to determine the disclosure of the information to parties outside the justice system. (p. 7.)

Use limitation, generally, is more applicable where information is disclosed outside the justice system where issues of safety, risk, and the right to know by victims are factors applied in the use limitation principle. (p. 10.)

Outside the criminal justice system, use is increasingly limited as the audience migrates from victims to the public. Public access issues are complex and problematic. (p. 11.)

It is important to note that there are a growing number of "gatherers" who make a living from uncovering personal information about citizens from government databases. Often referred to as "bulk data," the sale of government databases to the private sector changes data's intended use and accessibility, thus dramatically increasing the likelihood of abuse. In addition, compilations of legal data prepared by the private sector may result in unintended consequences for citizens exercising their right to participate in the judicial system. (p. 11.)

Ideally, the sale of information in bulk should be limited to recognized justice system purposes as enumerated in Principle 1, and contracts for the sale of bulk information should require compliance with privacy principles. (p. 11.)

We cannot assume that personal information collected for one purpose should be used or shared for an unrelated purpose. Information systems must be designed to halt unauthorized users of personal information. This involves authorization procedures for access to information, even within the justice system, that in turn involves a protocol for tracking who accesses information and for what purpose. (pp. 11-12.)

The openness principle also requires clear communication to effected individuals where justice records are requested, sold or released to third parties. The public should be informed of when information is sold in bulk for commercial purposes. (p. 13.)

providing low- or no-cost access to commercial enterprises would effectively provide a substantial and largely invisible taxpayer subsidy of those enterprises - even where most taxpayers will not use the electronic services and thus receive no offsetting public benefit.

Any person desiring to inspect, examine or copy judicial records shall make an oral or written request to the custodian. If the request is oral, the custodian may require a written request if the custodian determines that the disclosure of the records is questionable or the request is so involved or lengthy as to need further definition. The request must clearly identify each record requested so that the custodian can locate the record without doing extensive research and continuing requests for documents not yet in existence will not be considered.

The New Hampshire "Guidelines for Public Access to Court Records" provides in §IV as follows:

Access to large numbers of records at any one time shall not be permitted. Individuals seeking such access shall be required to specifically identify by document number or case name the files to which they seek access and may be assessed a reasonable fee. Clerks are not required to allow access to more than ten files per day but may do so in the exercise of their discretion if it will not cause disruption to the clerk's primary function. No person shall be allowed direct access to the clerk's records or permitted to enter the inner office of the clerk's staff unless the court facility requires such entry and unless specific authorization for such entry is given by the clerk in conjunction with the presiding justice.

The "Data Dissemination Policy" of the Eastern Judicial Conference of Georgia provides in §C of part IV and in §G of part V as follows:

A request is considered "unduly burdensome" when it may strain system capacity through extensive use of computer processing time, or be responsible for a delay in services by the court or Management Information Services, or require extensive employee work hours to complete the request.
 

The requestor must supply the following information:
(1) Request date

Name of Requestor
Address
Day phone
Affiliation or Association of Requestor

(2) Specific date requested
(3) Statement of intended use of the data
(4) Person or organization to whom the data will be disclosed or distributed.

Alabama's Rules of Judicial Administration, Rule 33 (Dissemination of Computer-based Court Information), provides, in pertinent part, as follows:

Authority over the dissemination of computer-based information maintained by the Administrative Office of the Courts ("AOC") shall be exercised by the administrative director of the courts ("ADC") in accordance with this rule; provided, however, that release of said information shall have the written approval of the presiding judge to which the information pertains. Nothing herein shall be construed to prevent access to individual court records which are subject to public disclosure by law or court rule.


(a) Application. This rule applies to all requests for computer-based information maintained by the AOC, including statistical data derived therefore, submitted by an individual, as well as public and private associations and agencies. This rule does not apply to requests initiated by the ADC for use in the administration or internal business of the courts. 
... 
(c) Information for Release of Data. Information which must be supplied by the requestor and upon which evaluation will be made includes:

(1) Identifying information concerning the applicant;
(2) Statement of the exact information requested;
(3) Statement of the reasons the information is sought;
(4) Statement of the intended use; and
(5) Statement as to whom the data will be distributed or disclosed.

(d) Criteria to Determine Release of Data. The criteria against which the applications are evaluated by the ADC shall be as follows:

(1) Availability of data;
(2) Specificity of the request;
(3) Potential for infringement of personal privacy created by release of the information requested;
(4) Potential for abuse or misinterpretation of the data requested as it relates to its intended use;
(5) The potential disruption to the internal, ongoing business of the courts.

(e) Cost. The requestor shall bear the cost of honoring the request for information in accordance with subsection (b) of this rule, and the administrative director of courts shall not distribute such information until payment of costs is received, unless the ADC elects to waive such costs.

In drafting the policy, the Committee differentiated between requests for access to existing records and requests for the creation of new records using information from within existing records. The PIA defines "public records" as documentary material, in any form, that is made or received by a unit or instrumentality of the State government in the transaction of public business. Code, State Government Art., §10-611(g). Thus, the document listing all the docket entries for a particular criminal case would be a public record, and a request for access to or a copy of that document would be a request for an existing record. Such docket entries often include the name of any law enforcement officer who initiated the charges. However, the court has never made or received a document listing all the criminal cases in which a particular law enforcement officer initiated the charges. Thus, a request for such a list would constitute a request for the creation of a new record. In Yeager v. Drug Enforcement Administration, 678 F.2d 315, 321 (1982), the Court, construing the Freedom of Information Act, stated: "it is well settled that an agency is not required by the FOIA to create a document that does not exist in order to satisfy a request." Citing that case, the PIA Manual published by the Attorney General's Office provides: "An agency has no obligation to create records to satisfy a PIA request. ... Nor is an agency required to reprogram its computers or aggregate data files so as to effectively create new records." Manual, p. 5.

In promulgating a provision dealing with the creation of records, the Committee opined that the Judiciary, while not required by the PIA to do so, may wish to do so under certain circumstances, especially when the records created may provide useful information to the government or serve some other public purpose. Similarly, the Committee has included in the draft policy a provision addressing direct electronic access to records, something the PIA does not require, but which the Judiciary may wish to afford under certain circumstances. In addressing these issues, the Committee recognizes that the computer equipment and personnel have been acquired by the Judiciary, at taxpayer expense, for the primary purpose of making the courts more efficient and effective, not for the purpose of enhancing public accessibility to the information about private citizens contained in the records received or made by units of the Judiciary. These sections of the draft policy address the subjects of payment and waiver of costs, which generally are not dealt with in the policy because they are governed by State Government Article, §10-621 with respect to access to and copies of existing records.

In drafting the administrative order, the Committee reviewed pertinent case law, including two cases - Office of the State Court Administrator v. Background Information Services, Inc., 994 P.2d 420 (1999) and Westbrook v. County of Los Angeles, 32 Cal.Rptr.2d 382 (1994) - in which commercial vendors of criminal background checks were held not entitled to access to the court computerized database. In those cases, the courts held that the specific criminal code provisions safeguarding criminal history record information and the laws protecting privacy rights overrode the general laws affording access to court records. Both courts referenced the distinction noted in the Reporters Committee case between access to case files in the courthouses and access to a centralized computer database. The Committee also reviewed the Maryland Code of Regulations (COMAR), Title 12, Subtitle 15, Chapters 01 (Implementation of the Criminal Justice Information System Statute). One of the provisions in the draft administrative order is patterned after one of those regulations; specifically, ¶4 of the draft order is patterned after COMAR 12.15.01.12B(6).⁽⁴⁾

In addressing dial-up access, both in the draft policy and the draft administrative order, the Committee was not unmindful of the fact that such access already is being afforded by the JIS, and had been for some time, with minimal cost to the users ($50 per year) and relatively no restrictions on access to records that are not otherwise exempted from public access. A review of the list of current users revealed that the vast majority were not government agencies or lawyers or law firms. The majority of users included private detectives and investigative agencies, commercial compilers and vendors of criminal background checks, credit bureaus, bail bondsmen, and other commercial enterprises. The publication of the draft policy and administrative order generated a vast amount of unfavorable comment, predominately from the private detectives and investigative agencies, commercial compilers and vendors of criminal background checks, commercial compilers and vendors of tenant histories based on reviews of landlord-tenant cases, and the press. With a few exceptions, the criticism, both written and verbal, focused on the restrictions imposed by the draft policy and administrative order on dial-up access to court records, especially criminal case records, and the limitation on courthouse access to ten records per day, unless the clerk permits more. While many of the persons submitting comments were unaware of the Central Repository, those that were familiar with it complained that obtaining criminal histories from it took too long, was too cumbersome inasmuch as the subject individual's fingerprint card had to be obtained and submitted, and did not include as much information as is available from the court, such as non-conviction information.

Actually, the critical comments received in response to the publication of the draft policy and administrative order confirm that dial-up access to court records is being used by employers and landlords to screen prospective employees and tenants. Without the accuracy of being fingerprint based, use of the court records could cause some individuals with names that are the same or similar to defendants in criminal cases to be deprived of jobs or housing.⁽⁵⁾ Additionally, some actual criminal case defendants may be denied jobs or housing based on non-conviction information obtained through dial-up access to court records. Moreover, even in the absence of misidentification, use of the court records for such screening purposes may impede persons who were previously charged with or convicted of crimes, including misdemeanors, from legitimately becoming productive, law-abiding members of the community.

The Committee feels strongly about the concerns underlying the draft provisions on dial-up access and the pressing need for a policy in light of the rapidly increasing list of dial-up users⁽⁶⁾. Nevertheless, the Committee, in light of the widespread criticism received in response to the draft policy, recommends the formation of a larger, more representative committee to further study this issue.⁽⁷⁾ However, the Committee recommends that such a committee be given a deadline to complete its studies and to submit its recommendations so that the existing problems and concerns will not become unduly exacerbated by the passage of time.

In addition to submitting this Report, the Committee members are available, on request, to answer any questions you may have regarding the draft policy and administrative order.

Respectfully submitted,

_____________________________________
 

2. While the provision drafted by the Committee and published for comment required the clerk to afford access to no more than 10 records per day, but permitted the clerk to afford access to more, this provision was subsequently modified by the Committee in response to public comments. The Committee has substituted "at a time" for "per day"and clarified that, with respect to court records, the ten-at-a-time limit applies to case files.

3. While State Government Article, §10-612(a) expressly provides that "[a]ll persons are entitled to have access to information about the affairs of government and the official acts of public officials and employees," it is the Committee's understanding that the Public Information Act ("PIA")has been interpreted as requiring public access regardless of the requester's intended purpose in seeking access or intended use of the records. By contrast, the interpretation of the Freedom of Information Act appears to make intended purpose and use relevant. In United States Department of Justice v. Reporters Committee, 489 U.S. 749, 773 (1989), the Court, construing the Freedom of Information Act, explained that the Act "focuses on the citizens' right to be informed about 'what their government is up to," that "[o]fficial information that sheds light on an agency's performance of its statutory duties falls squarely within that statutory purpose," that such purpose "is not fostered by disclosure of information about private citizens that is accumulated in various government files but that reveals little or nothing about an agency's own conduct," and that when "one private citizen is seeking information about another - the requester does not intend to discover anything about the conduct of the agency that has possession of the requested records."

4. What is ¶4 in the draft administrative order submitted with this Report was ¶5 in the draft administrative order that was published for public review and comment. As a result of a comment received from the Stuart Nathan, Assistant Attorney General for the Department of Public Safety and Correctional Services, what was ¶4 in the published draft has been deleted. The deleted provision provided that the court clerks should refer to the Central Repository persons making general requests for criminal case records concerning a particular individual. Inasmuch as most persons seeking criminal backgrounds of individuals will not qualify to obtain information from the Central Repository, it would be non-productive for the clerks to refer them there. Instead, the clerks will be provided with a preprinted statement, to distribute to such persons, that explains that access to criminal history record information maintained by the Central Repository is regulated by federal and state laws and regulations and that access for a non-criminal justice purposes must be expressly authorized by law and must be accompanied by the submission of the subject's fingerprints and the required fees.

5. In Florida, scrutiny of the recent election revealed that several citizens were erroneously purged from the voter registration lists because their names were similar to convicted felons gleaned by election boards from computerized court records.

6. The list of dial-up users has increased from approximately 1,500 in May 2000 to 3,000 in December 2000, and is likely to increase even more rapidly in light of the publicity surrounding the draft policy and administrative order.

7. The Committee notes that the matter of electronic access to court records is currently being studied by the federal courts. According to an article appearing in Legal News, Vol. 69, No. 19, p. 2299, there are 4 options under consideration for civil cases and 2 for criminal cases. With respect to electronic access to criminal records, the options under consideration are no access and limited access restricted to parties, counsel essential court employees, and judges.