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The New England First Amendment Coalition and four other local organizations dedicated to open government have raised concerns that rules proposed by the Rhode Island Judiciary to implement a new electronic filing system for court documents could lead to increased secrecy and limited access to important court records.
In written testimony, the organizations — NEFAC, ACCESS/RI, the American Civil Liberties Union of Rhode Island, Common Cause Rhode Island and the Rhode Island Press Association — objected that the way in which the proposed rules deal with confidential information will lead to the unnecessary withholding of information that should be public.
“The establishment of an electronic system of records should be encouraging greater access to records, not less. However unintended it may be, we believe these rules will invert the current default of openness in the judicial process to one that encourages and promotes secrecy,” the groups stated in their testimony.
The proposed rules, the groups note, often conflate confidential documents and documents that merely contain specific pieces of confidential information. This could lead attorneys, who can face sanctions for electronically filing “confidential” information, to keep entire files from the public if they contain just one piece of personal identifying information. The groups urged that the proposed rules make clear that such documents should be properly redacted and then made public.
The groups further noted that confidential “personal identifying information” was vaguely and broadly defined in the rules, and that this would likely further encourage attorneys to over-classify as confidential a wide variety of information that is now part of the public record in court cases.
“These provisions create an unhealthy incentive for attorneys to err on the side of keeping information confidential rather than disclosing it. We believe this is the wrong default to be building into an electronic filing system,” their testimony read.
When the system goes online, members of the public will not initially have any remote access to the electronic filing system. Instead, they will only be able to review the documents from courthouse computers. Although remote access is supposed to be made available at some unspecified period, the proposed rules declare that any exhibits filed in a court case will remain unavailable to the public remotely. The groups objected: “To create an electronic access filing system and then deny the public the ability to make full use of it is a tremendous waste, and throws into question the purpose for having such a system in the first place.”
The five groups asked the Rhode Island Judiciary to make numerous changes to the proposed rules in order to improve the system’s transparency. The groups also urged the Judiciary to extend the public comment period, which was for less than three weeks, to give interested parties more time to examine the rules. The Judiciary has previously indicated plans to have the system operational by next month.
NEFAC Executive Director Justin Silverman said today: “In terms of accessibility and transparency, an electronic filing system holds great potential. The way the rules are currently written, however, the public will never see that potential. In fact, it’s almost certain that there will be even less accessibility and transparency than exists today.”
Linda Lotridge Levin, ACCESS/RI president, added: “Court records memorialize the disposition of cases that often involve serious crimes. ACCESS/RI believes that to close these public records could only set back any progress made in ensuring transparency in state and local agencies and further erode the public’s trust in its government.”
Steven Brown, ACLU of Rhode Island’s executive director, said: “We are hopeful that the Court will carefully review the comments our organizations have submitted. It would be unfortunate if the court system were to take a giant technological step forward while making a major leap backward in terms of the public’s right to know.”
John Marion, Common Cause Rhode Island executive director, said: “If this public comment period is to be meaningful, the Judiciary should take the time to listen as our groups ask them to clarify these issues.”
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.