Editorial,  Oct. 19, 2017

By Portland Press Herald editorial board | Oct 19, 2017

Public records ARE public

Editor's note: The following editorial originally appeared in Portland Press Herald.

Leave it to lawyers to argue that public records aren’t really public.

A task force formed by the Maine Judicial Branch to digitize state court records is recommending not to make available online — as they are through the federal courts’ Pacer system — records that the public has every right to see.

Instead, the task force wants those records available online only to lawyers and clients of each particular case; anyone else would have to go to the relevant courthouse and request the documents in person.

Forcing people to travel to obtain these records up to now has been a matter of technology — the records were available only in paper form, and only at the courthouse. The court system has maintained what legal advocates call “practical obscurity,” which means that while the information is technically public, logistics keep it hidden from all but the most tenacious researcher, or at least those able to physically get to the courthouse and navigate the records counter.

In making the recommendation — which was favored by all of the task force’s 21 members except longtime Maine political journalist Mal Leary — the task force said maintaining practical obscurity is important. People won’t seek justice through the courts, they argue, if they fear their personal information will become too public. The anonymity provided by accessing these records at home, they also said, would encourage people to misuse the information.


The guardians of public information always overstate how the public would abuse that information if it were in their hands, and this is yet another example. In this case, the lawyers and other legal advocates on the task force, even if well-intended, are putting the feelings of their clients ahead of the rights of the public.

Twelve states and the federal government place their court records online, and there are no reports of problems. It’s not even clear what those problems might be.

More importantly, what goes on in a courtroom is not private, nor are the documents produced by those actions. They are public, and should be available to the public in the most convenient way possible. If the records are digitized — and they should be — then they should be available in the way that most everything is now available — online.

That was the argument made by Leigh Saufley, chief justice of the Maine Supreme Judicial Court, when she lobbied the Legislature for the money — taxpayer money — to fund the digitization project, saying, “The public deserves electronic access to its government.”

With very few exceptions already written out in law, that is true regardless of what information the government produces, how it’s used or who is using it. It doesn’t matter how that information makes someone look or how embarrassed it makes someone feel.

Those records are public, and they must be public as much as technology allows.

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