Maine’s top judge has said she wants the state’s courts to be more open and accessible to the public – including allowing for online access to records the public would otherwise have to view at a courthouse.

“The public deserves electronic access to its government,” Leigh Saufley, chief justice of the Maine Supreme Judicial Court, told the Legislature in 2014, when it was considering the Judicial Branch’s request for $15 million from taxpayers to fund an electronic system for keeping court records.

Leigh Saufley

“I can go online from anywhere and find the pending bills, the sponsors and committee assignments, the status of those bills, both in the committee and on the floor, the language of proposed amendments, committee hearing dates, and all written testimony,” Saufley said of the Legislature’s records system. “We seek nothing less for Maine people’s access to justice.”

But soon the court Saufley heads will consider a recommendation that would give lawyers instant access to court documents under the $15 million system, while other Mainers would still have to trek to a courthouse to see the records.

A special task force the court formed to explore how to implement the new system decided that online access to court records should be limited in order to protect individual privacy from those who would misuse personal information. But critics argue that such limits would move Maine in the wrong direction when it comes to transparency in government.

The court will take written comments on the recommendation until Dec. 15 and is expected to schedule a public hearing soon to gather additional feedback. The hearing will offer a final chance for those for and against the recommendation to share their views before the court makes a final decision on implementation.

The Judicial Branch Transparency and Privacy Task Force was made up mostly of lawyers, as well as advocates in the field of domestic and sexual violence and one journalist.

It was created by the court to develop recommendations on the accessibility of digitized court records and propose any necessary changes in state law or court rules.

Its recommendation would allow private attorneys involved in a case, as well as public prosecutors, unfettered access to online records.

ONLY THE DOCKET

But the public would have remote access only to a docket, or a list of the documents in any criminal or civil proceeding that haven’t been sealed by a judge. In order to see or obtain a copy of the entire document in a case, members of the public would have to travel to the courthouse to view the record at a special kiosk, with the aid of a courthouse clerk, who would also charge a fee for any copies of the records, as is current practice.

Advocates for open government contend that if the court adopts the recommendation, millions of dollars in taxpayer funds that were meant to improve public access will instead have been used mostly to benefit the legal profession.

“I likened it to the taxpayers being asked to build an enormously expensive and elegant restaurant and being given a menu of what could be served, but only the lawyers get to dine,” said Judy Meyer, executive editor of the Lewiston Sun Journal and a member of the Legislature’s Right-to-Know Advisory Committee. “And we foot the bill.”

The task force was established in March, held a series of meetings and made its final recommendations in September.

Mal Leary, a political reporter for Maine Public who served on the panel, said the recommendation seems to betray the vision of a more accessible and transparent court system laid out by Saufley in her 2014 address, and it also runs counter to the federal government’s practice of making public court records available online.

In a dissenting report to the task force recommendation, Leary points to Saufley’s words and writes, “What I find most disturbing is the failure to meet the goals set by the Judicial branch itself when it convinced the legislature to authorize the Government Facilities authority to issue bonds to build the electronic records infrastructure.”

In her 2014 remarks to the Legislature, Saufley detailed the limitations of the state’s paper-based records system, including the difficulty of extracting aggregate data to inform policy decisions on key issues like domestic violence.

“You and the media have asked us to tell you how many domestic violence criminal assault charges actually result in convictions,” Saufley said to lawmakers. “It is a straightforward question. Unfortunately, it is one that we simply cannot answer without a squadron of volunteers to look at every paper file related to assault charges. And some case types, such as mental health proceedings, are not even in the database at all.”

More frustrating, Saufley said, was the lack of easily accessible data for those with cases pending before the courts.

“If you have a case pending in the Maine courts, you cannot get the schedule online, you cannot see the filings from a website, you cannot get electronic access to the judge’s rulings,” she said.

“If the judge has entered an order in your case, you or your lawyer must drive to the courthouse or wait for it to arrive in the mail. This antiquated system makes retaining legal assistance more expensive. The public deserves better.”

The Legislature agreed to fund the $15 million system, and in December 2016 state officials signed a contract with Tyler Technologies to digitize all paper records for Maine District, Superior and Supreme Judicial courts.

But a majority of the 21-member task force – which included 15 practicing attorneys or judges – took a different view of public access to the new system. The panel voted nearly unanimously for a docket-only approach, in which the online file will simply confirm that a case exists and list any associated documents. To see those documents, a person would have to travel to a courthouse and read them at a kiosk.

PRIVACY AN ISSUE

The task force embraced arguments that requiring the public to go to the courthouse will weed out people with nefarious intentions who could sit at home and harvest personal information disclosed in court filings. The panel pointed to cases where online court records in other states, such as Florida and Texas, have led to the inadvertent disclosure of private information, such as a person’s Social Security number, for example.

In a concurring opinion with the task force recommendation, task force member and attorney Peter Guffin writes that he doesn’t believe the recommendations go far enough to protect privacy.

“It is widely acknowledged that, up until now, paper case records maintained by the Maine state courts have been difficult to access,” he writes. “With the Judicial Branch’s move to the digital world, however, court records in Maine will be in electronic form, resulting in increased accessibility to the public. Personal information in those records, once protected by the practical difficulties of gaining access to the records, could thus become increasingly less obscure.”

Guffin contends the courts should “recreate in the digital world the ‘practical obscurity’ that existed in the world of paper court records.”

For lawyers, the new system is comparable to the electronic system long used by the federal courts. Cases can be initiated and motions filed remotely at any time and users can access case files online. It also will be used for scheduling and to track bail, warrants and protection orders.

Sig Schutz, an attorney for the Portland Press Herald and other media in Maine, said the task force’s recommendations are a troublesome turn.

“We don’t do justice in secret,” Schutz said. “That’s just something we abhor in this country – in Maine and in the U.S.”

Open court proceedings and records are a hallmark of American democracy, Schutz said. And while the recommendation does not suggest that court proceedings or records be made secret, it does make access to those records and proceedings more difficult when it could make it far easier, Schutz said.

“The public does not benefit from a secret court system, operating in obscurity, with meaningful access limited only to persons deemed worthy of finding out what’s going on,” Schutz wrote in a testimony opposing the task force’s recommendation. “In the long run, secrecy is corrosive to the justice system.”

Schutz also said there is no substantial evidence to suggest privacy rights have been violated in any serious way in states that do allow online records or in the federal system, which has been in place for nearly two decades. Schutz said most of the scenarios envisioned by the task force are “what if” situations.

“There really is no evidence of any sort of misuse of the records where any tangible real harm has been done,” Schutz said.

He noted that access to online court records usually requires a user to register and pay for copies of records with a credit card, which creates a digital record of who has accessed the system. With the federal system, users must register and then pay 10 cents per page for records they download, although the maximum charge is capped at $3 per document.

TREND AGAINST OPENNESS

“It’s not a simple Google search and you can get all these documents,” Schutz said.

The panel’s recommendation echoes a national trend to limit public access to government and records.

In April, the Council for Court Excellence, a nonpartisan civic organization in Washington, D.C., polled state courts about electronic access to court records and found that 18 states and the District of Columbia had adopted a docket-only system, while at least 12 states said they provided court case results, such as opinions, orders and judgments.

Jennifer Nelson, an attorney with the Reporters Committee for the Freedom of the Press, a Washington, D.C., nonprofit that works to protect the First Amendment rights of the media, said the committee will file comments in opposition to the task force recommendation.

“The public’s right to access online court records should be the same as that which can be reviewed in a courthouse,” Nelson, the committee’s Stanton Foundation media litigation fellow, said. “Our position is that more records should be made available (online in Maine) than what the task force is recommending. We really don’t believe there was enough thoughtfulness put into how the public can benefit from (an) online system that allows for more access.”