NEFAC Continues to Suggest Improvements to Mass. Trial Court Public Record Rules

FOR IMMEDIATE RELEASE

CONTACT Justin Silverman | 774.244.2365 | justin@nefirstamendment.org

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Read Letter

The New England First Amendment Coalition recently called for increased access to Massachusetts trial court documents, submitting comments to a state committee tasked with writing new rules on where and how electronic copies of judicial records can be obtained.

The comments — in a letter sent on May 4 to the Trial Court Public Access to Court Records Committee by attorney Jeffrey Pyle of Prince Lobel Tye on behalf of NEFAC, the New England Newspaper and Press Association and Courthouse News Service — are intended to clarify and improve the work of the committee, which has spent more than a year drafting the proposed rules.

This is the third letter sent on behalf of NEFAC regarding the new rules, the first two on March 31 and May 1, 2015. The coalition also provided testimony on the rules at a public hearing last year.

NEFAC has four main concerns about the proposed rules and how they accommodate new technology:

(1) Superior Court records should be publicly accessible to lawyers and non-lawyers alike. The rules currently allow only attorneys access to PDFs of certain types of decisions. The “presumptive right of public access extends to all members of the public,” the letter stated, and the records “cannot be restricted only to certain groups such as attorneys.”

(2) Courthouse kiosks should allow statewide searching and access to publicly available docket information from all court locations. The proposed rules would allow public access to docket information through a kiosk or terminal located in the courthouse, however information would only be provided on cases within that individual court. “A person located in Williamstown, for example, should be able to go to the courthouse in nearby Pittsfield to search Barnstable County Superior Court records, rather than having to drive three and a half hours to West Barnstable,” the letter stated.

(3) Any “time, place and manner” restrictions on access to judicial records must protect the timeliness of that access. The proposed rules allow clerks to “set reasonable limits on the time, location, volume and manner of access.” The rule should be amended to remind clerks that such restrictions should not impinge on the public’s contemporaneous right to access the documents — “even short delays in such access have been deemed unconstitutional,” according to the letter.

(4) Handheld devices should be permitted. The proposed rules state that clerks may, but do not need to, permit the use of handheld devices to image, photograph or scan court documents. “In this mobile, electronic age, handheld scanning devices should be permitted under all circumstances,” the letter stated. “Absent a security reason that would justify prohibiting smartphones from courthouses altogether, there would appear to be little reason for a clerk to prohibit the use of such devices to scan or photograph court records.”

“By implementing these suggestions, the committee can help the public better access government information and use new technology to do so,” said Justin Silverman, NEFAC’s executive director. “The public’s right to know needs to be protected as these new rules are considered.”

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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. Donations can be made here. Major Supporters of NEFAC for this year include The Providence Journal Charitable Legacy Fund, The Boston Globe and Boston University.