Making Maine and the State Judicial System More Transparent

The following blog post is one of several that the New England First Amendment Coalition will publish during Sunshine Week, highlighting the need for government transparency and addressing freedom of information concerns throughout the New England states. When posted, these articles can be read here.

By Jim Campbell | Maine Freedom of Information Coalition

Last year was a busy one for those concerned about access to government documents and information in Maine.

Several of the most important freedom of access issues in 2017 (and continuing into 2018) involved proposed changes to practices in the judicial system that organizations like the Maine Freedom of Information Coalition and the New England First Amendment Coalition said would limit online access to court information.

When considering such access, it’s important to keep in mind that Maine is a very big state geographically — over 400 miles from one end to the other — with a small population of about 1.2 million people, many of whom live in sparsely populated areas.

For years the state has been attempting to bring increased Internet availability to people living in those remote areas. Proposed changes to limit the availability of judicial records would run counter to recent efforts to extend information to the people of Maine, whether they live in urban or rural locations.

Last year, MFOIC and other advocates testified in Conservatorship of Emma. In our comments, we argued against proposals to limit online access to probate court documents when full access to those documents is provided at individual courthouses. Not only is this a bad practice, we explained, but it is unnecessary, and would prevent residents from learning about their government.

MFOIC’s position was then, and remains, that a public record is a public record — period. There is no justification for limiting access to public records simply because they are online. Such a practice would adversely affect people who are only able to access information online and cannot travel to courthouses. It’s a limitation that essentially considers those people of lesser importance than those who can afford to take time off work, are not house bound, have access to private transportation, and can afford the cost of driving potentially hours to a state court.

A similar issue, but on a much broader scale, arose with the recent release of the Report of the Task Force on Transparency and Privacy in Court Records. Several years ago, the judicial branch asked the Legislature to fund a $15 million effort to digitize and put online court records. That process is underway. Just how this online system will work, however, is still under discussion.

To aid the judicial branch in deciding what type of information and how much would be available online, the judiciary convened what is called the Task Force on Transparency and Privacy in Court Records. This group held several meetings and produced a report that recommends severely limiting access to key court filings in civil matters to plaintiffs, defendants and their attorneys. Decisions and dockets would be available to anyone but not filings and other documents. Those materials would be viewable only at state court houses for those who have the luxury of time and the resources to travel.

In MFOIC’s view, a public document is a public whether it is a paper document or provided electronically. The Task Force report asserted that many court filings in civil cases include personal information that could compromise a plaintiff ’s or defendant’s privacy if they were put online. The report appealed to a concept called “practical obscurity” as a justification for limiting online access, an approach that in MFOIC’s opinion is neither a legal doctrine nor an effective tactic in the digital age.

MFOIC, NEFAC and other advocates, sent letters opposing the report’s conclusions. MFOIC plans to again testify in opposition when a public hearing is scheduled later this year.

While these judicial branch matters occupied a significant amount of MFOIC’s focus, there were a number of other matters our coalition addressed in 2017:

• MFOIC opposed and testified against LD 1658 “An Act to Prohibit the Dissemination of Criminal History Record Information Databases Maintained By or For the State Bureau of Identification.” This legislation would have prevented the release of state databases containing public information out of fear that some of that information could invade an individual’s privacy. The bill didn’t get out of committee.

• The Legislative Council of the State Legislature proposed to cease archiving audio recordings of committee hearings and sessions. MFOIC and NEFAC opposed that proposal. The council dropped that idea in the face of opposition but set up a committee to study the possibility of copyrighting the recordings. It appears that some legislators were not excited about the idea of hearing something they had said used in future political campaigns by opponents or used by interest groups for their own purposes, hence control by copyright.

• MFOIC and NEFAC opposed L.D. 1432 “An Act to Implement the Recommendations of the Right to Know Advisory Committee Concerning Advance Payment of Costs for Public Records Requests”. Our coalition viewed this as an effort to discourage people from filing Freedom of Access Act requests. The bill passed nonetheless.

• Sigmund Schutz, a member of both the MFOIC and NEFAC Board of Directors, completed a survey of 49 state agencies to determine whether they had public record policies and, if so, what those policies contained. A number of agencies responded, though many did not.

While it’s not clear who first said that “constant vigilance is the price of liberty,” it is certainly a principle of the MFOIC and one we will honor throughout the year ahead.

Jim Campbell is president of the Maine Freedom of Information Coalition.

Above photo taken by Flickr user M. Vassey and used with permission under a CC 2.0 license.

NEFAC was formed in 2006 to advance and protect the Five Freedoms of the First Amendment, including the principle of the public’s right to know. We’re a broad-based organization of people who believe in the power of an informed democratic society. Our members include lawyers, journalists, historians, academics and private citizens.

Our coalition is funded through contributions made by those who value the First Amendment and who strive to keep government accountable. Please make a donation here.

Major Supporters of NEFAC include the Barr Foundation, The Providence Journal Charitable Legacy Fund, The Robertson Foundation, The Boston Globe, WBUR and Boston University. 

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