Update: Online Access to Court Records

As many of you know, we have been working on the issue of online access to court records for a while and have been very pleased with the outcomes so far.  On August 10, the SJC released Trial Court Rule XIV, which lays out uniform rules on public access to court records, including a number of recommendations proposed by the BBA through an online access working group and its Criminal Law, Delivery of Legal Services, Immigration, and Family Law Sections, such as:

• The Committee’s recommendation to create a Standing Committee to regularly review the rules in light of recent developments and changes in technology and the addition of language to Rule 5(a)(1)(ii) specifically aimed at these sorts of updates, speaks directly to the second consensus point of the BBA’s Working Group (BBA Comments page 1) recommending periodic review of the database and technology.
• Editing Rule 1(d) to note that all courts will maintain a public computer kiosk at the Clerk’s office is responsive to our note on inconsistencies in the proposed rules on this point (see BBA Comments p. 12).
• Revising Rule 2(j)(1) to remove the outright ban on flash photography as recommended on page 8 of the BBA’s Comments given the prevalence and convenience of cell-phone scanners, which may require a small an unobtrusive flash.
• Adding certain case records to the list of protected documents that cannot be made available online, including mental health reports and certain civil commitment and harassment and domestic abuse records (see BBA Comments p. 11).
• Updating Rule 6 to clarify the process for court users to correct clerical errors in electronic dockets using language recommended on page 10 of our Comments.

The rule was released shortly after the Court faced some well-documented challenges (see: Courts Cut Online Access to Criminal Cases, Trial Court Fails Transparency Test in Attorney Portal Lockdown, To Block Data Harvesting, Trial Courts Lock Down Attorney Web Portal), having detected instances of unauthorized “data harvesting.”  While the situation was certainly unfortunate, the Trial Court used it as an opportunity to reaffirm their commitment to an open dialogue, following up with a meeting with bar leaders in mid-August.  As they explained, cutting access without warning was not their ideal solution, but was the best they could do under the circumstances, for fear that giving the public more notice would simply have led to more data harvesting until access was cut.

The meeting, led by Chief Justice of the Trial Court Paula Carey and Court Administrator Harry Spence, included a number of relevant Trial Court staff people working on the online access issue from lawyers who helped draft the uniform rules to programmers working to assure that the online platform balances convenience with privacy in order to comply with the law and uniform rule.  Attending were representatives from the bar, various Trial Court departments, and other state organizations involved in the justice system, such as the Attorney General’s Office, District Attorneys, and Committee for Public Counsel Services.

Chief Justice Carey explained that the Court currently (as of 8/17) has three Portals for access to court records:

1. Intranet portal – available at a public kiosk in every courthouse. This offers full access to court records but requires one to actually go to the courthouse.  The following case types are available and all cases can be searched by name, docket number, or case type:

2. Two portals provide remote access to court records through masscourts.org. They offer lesser access than the intranet portal, as detailed below:

a. Public Internet Portal – Civil cases can be searched by name, docket number, or case type, while criminal cases can be searched by docket number or date range, limited to a date range of 30 days or less:

b. Attorney Internet Portal – does not include a search function. Rather attorneys have access to their own cases after logging in.

One of the major discussion topics was figuring out the needs and limitations for other potential portals, including a dedicated government portal to give greater access to certain state offices, such as the District Attorneys and Attorney General, fuller access to criminal cases in order to fulfill their needs as prosecutors, and a self-represented litigant portal to give them the ability to track their cases as an admitted attorney would.  The Court is also working on potentially adding access to a daily calendar listing.

Through it all, the Court stressed that they are very interested in hearing feedback from portal users and that online access is a continuously evolving issue.  (We thank those of you who got in touch with us about how the new set-up has affected you.  We shared these experiences with the Trial Court.)  In fact, some pieces are still not finalized, such as Section 5(b) of the online access rules regarding the attorney portal, which currently has only provisional SJC approval.  The Justices of the SJC asked the Chief Justice of the Trial Court to address any concerns that arise and to make a final recommendation no later than the end of October 2016 on whether changes should be made in this section.

Chief Justice Carey is also soliciting feedback from the Chief Justices of the various court departments who, under Rule 5, may seek the approval of the Chief Justice of the Trial Court to exempt otherwise publicly available case types, or to make additional electronic records or information remotely available on the Public Internet Portal.  Their proposals will be in the form of standing orders that will be subject to public comment.  The BBA looks forward to being part of this process and in the conversation on this issue generally.  As always, we will do our best to keep you up to date on the latest developments and our work on this complex issue.

– Jonathan Schreiber
Legislative and Public Policy Manager
Boston Bar Association