As Maine undergoes a $15 million project to digitize its court records, open-access advocates are criticizing a task force recommendation that would limit some court files to lawyers and involved parties – forcing anyone else to physically travel to a local courthouse to view the same public records.

“The public does not benefit from a secret court system, operating in obscurity, with meaningful access limited only to persons deemed worthy of finding out what’s going on,” attorney Sigmund Schutz said in a letter to the task force on behalf of 10 public interest and media groups, including the Portland Press Herald. A public record available at a clerk’s office, he said, also should be available in digital form.

The task force’s recommendation is the latest example of public institutions nationwide moving to limit or close public access to government records or meetings, experts say. The trend runs contrary to the federal court system policy, which allows online access to documents through its Pacer system.

At the Electronic Frontier Foundation in San Francisco, which defends civil liberties in the digital realm, the First Amendment is clear: “If it’s a public record, it’s a public record. The public has a First Amendment right of access,” said David Greene, senior staff attorney with the Electronic Frontier Foundation. “That seems awfully backwards to say that now that (the information) is more accessible, we’re going to throw shade over it.”

The task force voted nearly unanimously in proposing the docket-only approach, in which the online file will simply say a case exists and list the associated documents. To see those documents, a person would have to travel to a courthouse and read them at a kiosk.

“It’s like ripping the table of contents out of a book and putting it online,” Schutz said.

Maine Public Political Correspondent Mal Leary was the lone dissenting member of the task force.

“I just flatly said they absolutely went in the wrong direction,” Leary said Wednesday. “They’re going to spend all this money so lawyers can have better access, but for the public it’s back to 1820.”

The recommendation now goes to the Maine Supreme Judicial Court, which will decide on the new access policy. The court will meet in the next two weeks to establish a process to get public comment on the recommendation, spokeswoman Mary Ann Lynch said.

The recommendation weighs the idea of an open and transparent government with privacy concerns: “The court’s transparency and privacy policy must not discourage citizens from seeking justice through the courts for fear that their personal information will be unduly distributed,” the task force wrote in its report. The task force also questioned the motives of people who could seek information online.

“The task force noted that there exists a distinct and tangible difference between accessing case records at the courthouse and viewing them from the comfort, security and anonymity of one’s home. When individuals go to the courthouse to access files, they must do so in an open manner, and ask to access the contents of a case file,” the report said. “The fact that individuals must conduct themselves in a transparent capacity discourages individuals from misusing the information. In contrast, individuals who access information online can anonymously probe the contents of their neighbors, friends, relatives and other citizens case files to satisfy whatever intentions they may have. An individual accessing information in an open manner reduces the likelihood that the individual will use the information for inappropriate purposes.”

Peter Guffin, an attorney at Pierce Atwood, said the task force “(did) not go far enough to protect privacy.”

“(T)o protect privacy in today’s digital world, we need to jettison the ill-conceived and out-of-date notion that information is either wholly private or wholly public,” he wrote to the task force in a concurring report. “This black-and-white matter of treating information creates a false dichotomy and is at odds with citizens’ reasonable expectations of privacy. … What one considers ‘private’ information is rarely completely secret. Likewise, matters do not cease to be ‘private’ just because they may appear in a public record.”

The notion of privacy is misplaced, Schutz said.

“What goes on in courtrooms is not private,” he said. “There’s a fundamental disconnect when you talk about privacy and public court records. If it’s public in court, then it ought to be public online.”

Lynch said the proposal will still provide “massive information” online. For example, someone could use the online system to learn if a protection from abuse order has been issued against someone, or if they have been involved in a divorce proceeding.

Bill Raftery, a senior analyst at the National Center for State Courts, which tracks judicial administration in state courts nationwide, said many states have adopted a similar docket-only approach, in part because of the complexity of adopting hybrid systems where some documents are online and others are not. Florida and Texas, he said, have tried to put more documents online, but have faced occasional problems with confidential information, such as Social Security numbers, appearing online.

Raftery said some states have local control issues that prevent a statewide policy – in California, different counties have different e-filing policies, he said.

In April, the Council for Court Excellence, a nonpartisan civic organization in Washington, D.C., polled state courts about electronic access to court records and found that 18 states and the District of Columbia had adopted a docket-only system, while at least 12 states said they provided court case results, such as opinions, orders and judgments.

Critics of the task force proposal emphasized that they weren’t arguing that any confidential court material should be online, such as Social Security numbers, family law cases involving minors and other confidential information.

The Maine Legislature approved, and the state signed, a $15 million contract in December 2016 with Tyler Technologies to computerize all the paperwork for Maine District, Superior and Supreme Judicial courts.

Lynch has said that, for lawyers, the new system is comparable to the electronic Pacer system used by the federal courts. Cases can be initiated and motions filed remotely at any time and users can access case files online. It also will be used for scheduling and to track bail, warrants and protection orders. However, unlike the Pacer system, not all members of the public will be able to access court documents unless they go to a courthouse.

Leary said Maine lawmakers approved funding for the project based on testimony that the digital records would benefit the public.

“They were all talking about how the public – the public – would benefit from this system. That’s how they sold this to the Legislature, and I fail to see where this method would provide (the public) with greater access,” he said.

Noel K. Gallagher can be contacted at 791-6387 or at:

[email protected]

Twitter: noelinmaine