Last November the Alameda County, Calif., courts closed off access to their criminal docket files after a complaint from a Legal Aid attorney. Relying on a 1994 decision by the state court of appeals, Westbrook vs. Los Angeles County, the attorney argued that public access to his client's criminal file threatened the client's constitutionally protected right to privacy. The county court administrator agreed, and the files were closed, including indexes of both active and inactive criminal cases.
After meeting with newspapers opposed to the closing, Assistant Alameda County Counsel Richard Karlsson announced the files would be reopened, noting that "we recognize that the indexes should be made available to the public, which of course includes the press. Obviously, we cannot shut off access to those documents." When the indexes were reopened some information had been redacted.
Alameda county was only one of the first communities to wrestle publicly with a major public policy problem that pits traditional concepts of access to court records against individuals' rights to privacy. At the heart of the dispute is a concern that access to traditionally public records in electronic or compiled forms may pose a much greater threat to privacy than would disclosure of those records as individual pieces.
The legal impetus for this concern derives from a U.S. Supreme Court decision, Department of Justice vs. Reporters Committee, 489 U.S. 749 (1989), in which the Court ruled that criminal history records maintained by the FBI were categorically exempt under the Freedom of Information Act because their disclosure would constitute an unwarranted invasion of personal privacy. In reaching that decision, Justice John Paul Stevens found that, although the records were presumptively public at their original source, individuals benefited from the "practical obscurity" of those records. In other words, the difficulty of obtaining the records from their source increased the likelihood that those records could not be located, or compiled. When the records were compiled in a database, however, the potential privacy implications were significantly increased.
The state court in Westbrook seemed to take the Reporters Committee decision one step further. In finding that dissemination of Los Angeles' Municipal Court Information System was restricted by provisions of the Penal Code, the court also ruled that disclosure of the database information would be contrary to the state's constitutional right of privacy. Judge Arleigh Woods wrote that "there is a qualitative difference between obtaining information from a specific docket or on a specified individual, and from obtaining docket information on every person against whom criminal charges are pending in the municipal court. If the information were not compiled in [a database], [Westbrook] would have no pecuniary motive (and presumably no interest) in obtaining it. It is the aggregate nature of the information which makes it valuable to the respondent; it is that same quality which makes its dissemination constitutionally dangerous."
Woods pointed out that Westbrook had demonstrated no "legally acceptable need to know the information," but had requested it solely because "he wants to sell the information to others. As a result, [Westbrook] has in his possession information from which he can, over the years, compile his own private database of criminal offender records information."
While the court of appeals based its decision on Reporters Committee, it shifted the emphasis a bit in the process. If the Supreme Court had been worried about a database of linked criminal history information posing a more serious threat to privacy than would the individual pieces, the appeals court appeared to be just as concerned with the pieces themselves. Although many of the pieces were public records, and remain public records, a fair reading of the Westbrook decision is that the possibility that those pieces could be taken and compiled privately into a database is every bit as dangerous as would be access to a database already compiled by a public agency. Merely collecting the pieces was an equally invasive proposition.
This notion seems to clearly have influenced Alameda Assistant District Attorney Don Ingraham, who chairs a committee on court and criminal record security and privacy. In a memo to Alameda Court Administrator Lori Kreeft in response to her concerns over how to handle the complaint from the Legal Aid attorney, Ingraham observed that "[if] a private person ... [can] obtain a copy of any record ... which would contribute to the development of a criminal offender record information file, it is clear that such a procedure is exactly what was prohibited in Westbrook vs. Los Angeles County." Ingraham also noted the state Supreme Court had refused to review Westbrook, making the appellate court's ruling binding throughout the state.
Although California's Penal Code may prohibit an information broker like Westbrook from obtaining a copy of a database of criminal history information, the broader implications of the decision are not lost on the press. Tom Newton, general counsel of the California Newspaper Publishers, told reporter Jessica Killorin that "municipal courts have taken the idea that the Westbrook decision should rid them of requests for one criminal court file on Joe Smith. We find that to be a bizarre interpretation of a court decision that we don't like anyway."
Terry Francke, director of the California First Amendment Coalition told Killorin that "this whole thing is a misreading of the appellate court opinion." Francke believes that the appeals court misinterpreted the crucial Penal Code section 13300, which applies to "criminal justice agencies at all levels of state government which perform, as their principal function, activities which relate to 'the apprehension, prosecution, adjudication, incarceration, or correction of criminal offenders' or 'the collection, storage, dissemination or usage of criminal offender record information.'" Francke noted that the provision "clearly refers to the cops," and not the courts.
What the Westbrook opinion should mean as a matter of public policy is currently under study by the Subcommittee on Privacy and Access of the Judicial Council Standing Advisory Committee on Court Technology. The subcommittee, chaired by Oakland Municipal Court Judge Judith Ford,
and made up of individuals from the courts, the press, privacy advocacy groups, and the Information Industry Association, has written a report that addresses the Westbrook ruling and other access and privacy issues concerning court technology. If the subcommittee's recommendations are accepted by the Judicial Council, Ford said, they will be adopted in the form of regulations that will be binding on courts throughout the state.
At stake are issues that go beyond mere invasion of privacy. Depending on the choices the subcommittee makes, the California courts could re-define, based on privacy considerations, when a public record is not a public record. One of the practical considerations involved in access to court records is the likelihood that criminal records could be expunged or changed over time; that information might not be reflected in a database compiled or operated by a non-court group. While an arrest or conviction is a matter of public record at the time of occurrence, its subsequent expungement would effectively wipe it from the public record, but not from the privately operated database. The subcommittee must walk a fine line between protecting the sometimes contrary values of access and privacy. It goes without saying that courts and access and privacy advocates in other jurisdictions will be watching with anticipation for the path California chooses to follow.
Harry Hammitt is editor/publisher of Access Reports, a newsletter published in Lynchburg, Va., covering open government laws and information policy issues. E-mail: <firstname.lastname@example.org>.