Wisconsin Bill Proposes to Remove Certain Court Records from Public Access

A Wisconsin Assembly committee is considering a bill that would remove public access to online information about pending court cases or cases where a person was found innocent or there was no civil liability, including cases where orders or charges are reopened, vacated, set aside or overturned on appeal.

Proponents of the bill say online access to court records creates an opportunity for employers, landlords and others to discriminate against individuals who were accused, but not convicted of any wrongdoing.

Critics say the bill is an insult to the public, and note that the information is publicly-available at the courthouse.

The bill would permit access to the records by judges, court officials, law enforcement officials, attorneys, accredited journalists and bill collectors.

Read more here.

Open Records Advocate Says He Knows How to Save the Government Billions

Open records advocate Carl Malamud obtained information through a FOIA request showing that the Department of Justice paid more than $4 million in 2009 and the IRS paid nearly $1 million in 2008 for access to the federal court's electronic filing system, which is composed entirely of documents in the public domain. Malamud says an open source repository of U.S. legal materials could save the government billions of dollars.

Malamud has filed 34 requests with federal agencies and is preparing to file another 100 to offices in the executive branch as part of his campaign to make court records available in bulk.

The federal courts search system known as Public Access to Court Electronic Records, or PACER, charges $.08 per page to look at federal court filings (excluding tax courts and the Supreme Court) and pulled in nearly $50 million in 2006. The system does not allow for bulk download.

For more information about Malamud's campaign, click here.

Records in the Elizabeth Smart Kidnapping Case to become Public

A federal judge ruled to make public sealed court docket entries and most hearings related to the Elizabeth Smart kidnapping case.  However, competency reports about Brian David Mitchell and records that involve a privacy right of anyone else involved will remain closed. Mitchell is charged with Smart's kidnapping and has been found incompetent to stand trial in state court twice.  A 10-day federal court competency proceeding is scheduled to begin November 30.  

An attorneys for media organizations say the ruling is "good news for access."  Get more information here.

Oklahoma Supreme Court Decision Troubles Open Records Advocates

A ruling by the Oklahoma Supreme Court effectively carves out an exception to the state's Open Records Act by forbidding the release of all the state's electronic case information under the state Open Records Act.  The ruling also affirms public access to electronic court records on a case-by-case basis.  

The Court rejected the bulk data request of INAD Data Services LLC for electronic copies of all district court and workers' compensation court case information.  

Controversy started brewing when it came to light that another company, KellPro Inc. has a $1 million contract with the state Supreme Court to get electronic court records from 64 counties ready for a unified system of public access on the Web. 

State Rep. Mike Reynolds (R-Oklahoma City) criticized the Court for contracting with one private company to provide data while simultaneously cutting off access to other companies.  

Get more details here. 

Wisconsin Legislator Wants to Limit Access to State Court Records

Wisconsin Rep. Marlin Schneider wants to restrict access to information in Wisconsin's online court records because employers use the site to screen potential employees and neighbors check out neighbors online.   He proposes to show only information for criminal convictions or civil judgments, and requiring the public to pay $10 annually and register with the state courts director to use the Wisconsin Circuit Court Access site.  Judges, police, attorneys and reporters could still use the site for free, though the state courts director would track each visitor's searches.

Needless to say FOI advocates say Schneider's proposal goes too far. 

Check it out.

N.J. guidelines clarify what court documents are public

In September, a new rule adopted by New Jersey's highest court will define evidence admitted in courts as "open for public inspection," the Star-Ledger reported. Private records will include financial information in divorce proceedings and personal identifiers such as credit card and Social Security numbers. Thomas Cafferty, a lawyer for the New Jersey Press Association said, "It was less than clear before what would be accessible to the public. I think the Albin report makes it clear."

For decades, some residents could not get court documents they were entitled to see because the judiciary had limited guidelines on which records were available for public viewing.

That's expected to change next month when a new rule recently adopted by the state's highest court goes into effect.

Evidence admitted in New Jersey courts are just some of the records specifically defined as "open for public inspection" in the state's new guidelines.

More here.

NFOIC Summit: Texts, Lies and Video Tape

Paul Anger, editor and publisher of the Detroit Free Press spoke of the controversy surrounding former Detroit mayor Kwame Kilpatrick and how the newspaper used FOI to tell the story. The Detroit Free Press won the Pulitzer Prize in the local reporting category for its coverage of the scandal. Here are the notes from his session at the NFOIC Summit:

Background on the issue:

• Detroit lived with this nightmare for almost a year. Public records were hidden away literally under lock and key. In the end, $14 million of public money had gone down the drain. The paper's FOI lawsuit generated as much drama as Boston Legal. And there was a human tragedy. Kilpatrick was a dynamic man, father of three and rising star. Now he's a convicted felon who spent more than three months in jail and still doesn't get what he did wrong.
• The scandal began six years ago when Kilpatrick started having an affair with Christine Beatty, who later became his chief of staff. But he didn't just have an affair. He and Betty fired three police officers in 2003. The officers then filed a whistle-blower suit accusing Kilpatrick of retaliation because of their actions in an internal affairs investigation of the mayor's security team.
  
• Four years went by before the trial started. He and Beatty lied about their affair under oath. The jury didn't buy the mayor's story and awarded each of the two officers more than $2.5 million. The mayor vowed to appeal.
  
• The attorney for the police officers obtained text message records through a subpoena.
  
• The mayor agreed to a secret deal to settle the lawsuit in exchange for keeping the text messages private. They were to be locked in a safety deposit box and destroyed. Then suddenly, he announced that after searching his soul he had decided to settle the case for $8.4 million.
• The Detroit Free Press filed an FOI request for all records related to the settlement. The paper filed a second request for confidential records.
  
• The newspaper sued the city for all documents that had not been made public after the settlement.
• The city released the public agreement signed but didn't disclose the secret agreement.
  
• Through anonymous sources, the newspaper obtained 14,000 text messages. The messages disclosed the affair and the pair's intention to fire Gary Brown, one of the police officers in the whistle blower case.
• Courts began unsealing documents.
  
• Kilpatrick pleaded guilty in September to two felonies. Betty pleaded guilty to two felonies in December.
• Kilpatrick faced charges of conspiracy to obstruct justice, obstruction of justice, misconduct in office and perjury.
  

Lessons from the Detroit Free Press coverage:

• The Detroit Free Press realized it was sitting on a story that could tear apart the community.
• Once it received the messages from anonymous sources, it had to ensure they were authentic. They used dates and other data to confirm that the electronic footprint was authentic.
• Several of the messages contained sexually explicit information the newspaper didn't publish. Anger said the newspaper knew the story wasn't about sex. It didn't want the public to miss the point of the story. The newspaper also didn't want to add to the embarrassment of the families involved. Anger said some staffers and community members felt that the paper should release all the text messages. He said the paper wanted to make sure it didn't become the story, which would have been a danger if it had posted all the messages online. As the courts released more text messages, the paper did post some of those.
  
• Journalism is alive and well on the Web. Journalism isn't dying, but it might be the demise if we cut reporters to the level where no investigative reporting is being done. Anger suggests cutting back on the expense of printing and physical delivery.
  
• The Free Press included streaming of live events, photo galleries and video to its Web site. The Web traffic increased over 75 percent. The site received 4 million page views the day the mayor pleaded guilty.
• Anger is in support of a federal shield law. He said sources never would have come forward without confidentiality. However, journalists should use anonymity rarely and always verify the information.
• Technology provides powerful tools to put public documents online. The documents, videos and live streaming allowed people to decide for themselves if they believed the mayor.
  
• The Free Press staff knew it would be accused of invading privacy. It tried to bullet-proof itself by organizing a group to "prosecute" each story on the issue and how the story was presented.
  
• The Free Press has spent about 10 times per month what its legal budget really is. Gannett supported the paper's efforts.
• When Detroit set up its contract with its third-party vendor to store text messages, the mayor drafted a memo warning city employees that their messages were public documents. The city no longer has an arrangement with this third party vendor. So messages are no longer being stored in this manner.
  
• Anger says the real heroes in this situation were: Wayne County Prosecutor Kim Worthy, who considered the text messages public records; judges who ruled that the records should be released and ruled in favor of open records; Herschel Fink, the newspaper's attorney; and Barbara Wall, Gannett vice president and associate general counsel.
• The newspaper took a financial risk in this project, especially because no advertisers wanted to be anywhere near these stories.
• Anger did write some columns about the decisions being made regarding the coverage of this issue. The Web site included Q&As and live chats with the paper's investigative editor and the two main reporters, Jim Schaefer and M.L. Elrick.

Epilogue:

• Kilpatrick owes the city $1 million in restitution. He's currently living in a Dallas suburb and working at Covisint, a subsidiary of Compuware. He makes $120,000 a year and can earn up to $300,000. Initially he said he could only afford to pay $6 a month toward restitution. He was ordered to repay $6,000 a month. He has been late with payments.
• The state is investigating whether Kilpatrick illegally used political campaign funds to pay $1 million to lawyers. He maintains that he didn't break any rules in doing so.
• Kilpatrick also sued SkyTel, the city's former communications provider, for releasing the records.
• For all current and former coverage, go here.
  
• Beatty completed her three months in jail and remains without a job.
  
• The Free Press' FOI lawsuit is still active. The newspaper has asked for more text messages. Kilpatrick has vowed to run for office again, and the reporters want to ensure they get all the facts about this scandal.
  

NFOIC Summit: Arizona FOI roundup

State-by-state updates at the 2009 NFOIC Summit: David Cuillier of the Society of Professional Journalists provided a summary of Arizona's FOI news.

• Police agencies are redacting names in police reports. Some just leave in the first name. They're redacting addresses. They use the excuse that they're protecting suspected criminals from identity theft.
• The legislature proposed a policy whereby if someone requested records and didn't pick them up, that person would be banned for life for requesting records.
• There is also a proposal to limit access to online court records to Arizona citizens.
  

Wyo. judge rules child endangerment cases can't be closed

Wyoming courts will no longer be able to automatically close child endangerment case files, the Reporters Committee for Freedom of the Press reported. This ruling will not apply to information that could identify the victim but will "give the public more information about criminal charges in such cases."

A Wyoming court's policy of banning public access to child endangerment cases files violates the state public records law, a judge ruled Thursday, according to the Casper Star-Tribune.

District Judge Scott Skavdahl's ruling came in response to a December lawsuit filed by the Casper newspaper against Circuit Judge Michael Huber, after the newspaper reports it sought "the release of records in child endangerment cases that don't involve sex crimes." In Wyoming, the district court is higher than the circuit level.

According to the Star-Tribune, Skavdahl said "it was beyond his discretion to tell the circuit court exactly what policy it should have in regard to such records." But the newspaper's attorney, Bruce Moats, said the ruling will still give the public more information about criminal charges in such cases.

More here.

Va. Supreme Court decides wrongful death settlements should be public

Another victory for disclosure of court settlement terms:

The settlement terms of several wrongful death lawsuits brought in Spotsylvania County against a pharmaceutical company must be disclosed publicly and cannot be sealed in the court records, a Virginia Supreme Court ruled today.

The unanimous opinion upholds a circuit court ruling that it was improper to permit the suits to be settled without the details disclosed in court.

The deaths occurred at Mary Washington Hospital 2004 and 2005 and the defendants in the case were B. Braun Medical Inc. and its subsidiary, Central Admixture Pharmacy Services (CAPS). After the cases were settled with the settlement terms filed in the court records, The Free Lance-Star and the Richmond Times-Dispatch intervened and, after hearings, a circuit judge ruled that the terms of the settlements must be filed in the court clerk’s office. The judge agreed to seal the settlements until the Supreme Court decided the appeals.

More here.

The Sort of Solidarity We Need in Access Battles...

The Chicago Tribune petitioned a Cook County judge Tuesday to lift the veil of secrecy shrouding the R. Kelly case.

The emergency motion requests that Judge Vincent Gaughan make all Kelly-related court records public, release transcripts of several secret hearings and lift the gag order on the attorneys involved in the upcoming trial. Gaughan has been holding discussions with lawyers behind closed doors for months, usually in the privacy of his chambers.

The Tribune and Sun-Times filed the motion together in a rare show of unity between competitors. The newspapers hope to have their arguments heard before another closed-door hearing Friday.

"The right [to access court records] is essential to the public's right to monitor the functioning of our courts, thereby insuring quality, honesty and respect for our legal system," the motion states. "Particularly during pre-trial criminal proceedings, the absence of a jury, long recognized as an inestimable safeguard against the corrupt or overzealous prosecutor and against the compliant, biased or eccentric judge, makes the importance of public access . . . even more significant."

More here.

In Wisconsin, Two Sets of Books?

From an editorial in the Milwaukee Journal-Sentinel:

"When it comes to limiting the public's access to records in Wisconsin, it's a bipartisan effort.

Last summer, Democratic state Reps. Marlin Schneider of Wisconsin Rapids and Fred Kessler of Milwaukee proposed shutting off access to the state's online court records to most members of the public. Only court officials, law enforcement personnel, attorneys and journalists would have had unlimited access to the Consolidated Court Automation Programs Web site.

This winter, it's Republican state Rep. Robin Vos of Racine and Democrat state Sen. Julie Lassa of Stevens Point who want to limit access to the Web site by removing certain cases from the electronic record. Their effort is just as well-intentioned as the effort last summer - and just as wrongheaded.

Companion proposals by Vos and Lassa would have state officials remove cases or charges involving a civil forfeiture or misdemeanor from the Web site within 90 days after being notified that the case or charge has been dismissed, the defendant has been found not guilty of all of the charges or the case or charge has been overturned on appeal and dismissed. In the case of felonies, the case or charge would be removed within 120 days after officials had been notified that one of the above had happened.

As Peter Fox of the Wisconsin Newspaper Association put it in an e-mail, the proposals are poor public policy. "For one thing, the WCCA site is intended to reflect the actual record of Wisconsin courts, not excerpts thereof," he wrote. "Essentially, this proposal would create two 'sets of books.' "

More here.