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: <email@example.com>.