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Court access debate persists

Study panel seeks public comment on online records

For more than a year and a half, a committee of Massachusetts judges and other court officials have met behind closed doors to decide how much access the public should have to electronic criminal and civil case information.

Now, a year after they originally expected to wrap up deliberations, the panel, for the first time at a hearing Monday, is asking the public for suggestions. But some complain the courts have already begun limiting online access to some records without public discussion.The courts, which have long provided basic information about superior court cases to journalists and attorneys online, have started phasing out media accounts over the past year as they move to a new computer system.

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“Technological progress should enhance public access to court files, not reduce it,” said Robert Bertsche, a Boston lawyer who represents Courthouse News and other clients concerned about the restricted Internet access. Bertsche argues that anyone should be able to access information online that is readily available at the courthouse.

A court spokeswoman said the committee has not made any final decisions and is still drafting its proposal. But she said the committee will eventually give the public an opportunity to review its plan before submitting it to the Supreme Judicial Court for approval.

“The committee would like to hear about any topics, problems, suggestions, or positions the public has regarding access to publicly available court records before the drafting process is complete,” said Jennifer Donahue, a spokesman for the state trial court system.

The courts point out the public already has access to most paper records by visiting courthouses in person. And they have gradually expanded Web access to information about many types of civil cases.

But critics complain the state still lags behind the federal government and many other states in providing online access to records, despite spending nearly two decades and more than $75 million upgrading its computer system.

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Massachusetts still doesn’t generally have the technological ability to post copies of documents in a court case. And court officials have deliberately blocked the public from accessing basic information in the court computer system, such as the dates for upcoming hearings, for almost all criminal cases and many civil cases online.

For example, the courts don’t currently provide any online information about criminal cases in district courts and have begun restricting information about criminal cases in superior court to attorneys.

That’s despite a 2003 Supreme Judicial Court policy requiring the courts to post at least some information on the Internet for most every civil and criminal case. The policy also says that lawyers, litigants, and the media “should have no greater access than the general public” to information about cases in which they are not directly involved.

A representative of the Massachusetts Bar Association, which represents attorneys, said whatever information is online should be available to everyone — not just lawyers.

“No one should really have special access over anyone else,” said Peter Elikann, a criminal attorney planning to testify at Monday’s hearing on behalf of the Bar Association.

But Elikann said the courts should consider withholding some documents or docket entries that contain highly sensitive or embarrassing information, such as the names of victims or details of divorces and adoptions. He said the issue already exists with traditional paper documents, but will become increasingly critical as more and more documents become available online.

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“It shouldn’t be 100 percent unfettered access,” Elikann said. “There should be a stringent set of guidelines on what can be released and what can’t be released.”

Some researchers and media, including The Boston Globe, also have had trouble obtaining statistics and data from the court system — such as how frequently judges convict defendants in drunken driving cases — hindering efforts to analyze court operations or search for ways to improve the criminal justice system.

The Massachusetts Bail Fund, for example, says it has struggled for more than a year to gather detailed data on how many people are kept in jail for minor crimes because they cannot afford a small amount of bail, such as $100.

“It’s very frustrating,” said Norma Wassel, chairwoman of the steering committee of the Bail Fund, which bails out many of the defendants itself and hoped to release a study of the issue. “We need to have this data to make informed public policy decisions.”

In response to increasing questions about obtaining access to electronic court records and data, the courts formed the Trial Court Committee on Public Access to Court Records in November 2013 to update its policies.

The 20-member committee is led by Superior Court Judge Peter Lauriat, who has sometimes been skeptical of the public’s right to access court information. In January, the Supreme Judicial Court overruled his decision to withhold the names of jurors unless they told him they were “amenable” to speaking with the press. And in 2013, he banned reporters from tweeting the proceedings of a murder case, something most other judges allow.

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Lauriat declined an interview about the committee’s work and all of the meetings have been closed to the public. But in a recent interview, court administrator Harry Spence said the committee is trying to carefully balance the public’s constitutional right to access the courts with the privacy interests of litigants.

The work has taken longer than judges expected, however. The committee originally set a goal of finishing its work by May 2014. Spence said the committee now hopes to complete the process by the end of 2015.

“The deliberations have been more complex than we anticipated,” he said. “There’s huge variability in what other states are doing.”

The courts are exempt from the state’s public records and open meeting laws, allowing them to legally withhold some information and meet behind closed doors. However, some lawmakers are pushing the courts to become more open.

A bill proposed by Senator Jamie Eldridge, Democrat of Acton, would extend the public records law to cover some administrative court documents. And the Senate version of the state budget includes a provision ordering the courts to file a plan with the Legislature to provide civil and criminal case information on the Internet “to make courts more accessible to the general public.”

“We gave them a nudge toward more transparency,” said Senator William Brownsberger, Democrat of Belmont, who is cochairman of the Joint Committee on the Judiciary.

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The public hearing is scheduled for 4 to 6 p.m. at the Suffolk County Superior Courthouse jury pool room.


Todd Wallack can be reached at twallack@globe.com. Follow him on Twitter @twallack.