Our Judicial System Is Failing in Its Mandate to Provide the Public with Access to Court Records

This post is the first in a three part series on how public access to court records is becoming an important access to justice issue. This post will focus on the fundamental right to access court records. Part 2 will focus on the high cost of obtaining court records. Part 3 will focus on how obstacles to obtaining court records are stifling innovation. The sum of these three issues are having a significant impact on access to justice.

Openness and transparency are fundamental to our legal system, yet it is a sad fact that today you can easily find almost anything on the Internet EXCEPT court records. It is easier to order groceries, book an airplane ticket, or check out a library book online, than it is to look up whether your doctor has ever been sued for malpractice, find out how many divorce cases your attorney has handled, or look up whether a potential business partner has a history of fraud.

It should not be this way. The Supreme Court has repeatedly held that the public has a fundamental right to review and monitor what happens in open court.

In Craig v. Harney, for example, the Supreme Court chastised a trial court judge who had jailed a newspaper reporter for a story that was highly critical of the judge. The Supreme Court rejected the trial judge’s explanation that the reporter had “interfer[ed] with the due administration of justice” and Justice Douglas explained that it was for the public, and not the judge, to determine whether the reporter’s criticism’s of the judge were justified:

A trial is a public event. What transpires in the court room is public property. . .  Those who see and hear what transpired can report it with impunity. There is no special perquisite of the judiciary which enables it, as distinguished from other institutions of democratic government, to suppress, edit, or censor events which transpire in proceedings before it.

Craig v. Harney, 331 U.S. 367, 374 (1947) (emphasis added).

Similarly in Cox Broadcasting v. Cohn, the Supreme Court struck down a state statute that sought to restrict reporters and others from publishing records of criminal trials. Justice White explained that the statute was unconstitutional because ultimately the public was the final authority for reviewing court proceedings and so it was improper to restrict the public’s right to access court records:

Public records [of court proceedings] by their very nature are of interest to those concerned with the administration of government, and a public benefit is performed by the reporting of the true contents of the records by the media. The freedom of the press to publish that information appears to us to be of critical importance to our type of government in which the citizenry is the final judge of the proper conduct of public business.

Cox Broadcasting Corp. v. Cohn, 420 U.S. 469, 495 (U.S. 1975) (emphasis added).

In these cases from many decades ago, along with many others, the Supreme Court focused on ensuring that the public has access to the records of court proceedings.

Furthermore, many State Constitutions also enshrine the principle of open access. Perhaps the most explicit statement of the principle is found in the Florida Constitution, which expressly spells out that, aside from narrowly construed exceptions, everyone has the right to copy any court record:

Every person has the right to inspect or copy any public record made or received in connection with the official business of any public body, officer, or employee of the state, or persons acting on their behalf, except with respect to records exempted pursuant to this section or specifically made confidential by this Constitution. This section specifically includes the legislative, executive, and judicial branches of government.

Florida Constitution, Article 1, Section 24 (emphasis added).

The California Constitution also expressly provides for public access:  

The people have the right of access to information concerning the conduct of the people’s business, and, therefore, the meetings of public bodies and the writings of public officials and agencies shall be open to public scrutiny. (emphasis added)

California Constitution, Article 1, Section (3)(b)(1) (emphasis added).

Similarly, Article 1, Section 10 of the Washington State Constitution directs that justice in all cases “shall be administered openly” and Article 1, Section 11 of the Constitution of Pennsylvania states that “[a]ll courts shall be open.”

But today, despite these explicit constitutional provisions and many decades after the Supreme Court has repeatedly affirmed the public’s right to access court records, many courts provide only limited access — many court records are still not online at all — and the process for finding, obtaining, and working with federal and state court records is expensive, cumbersome, confusing, and grossly outdated.

In the digital age, our courts have failed in their mandate to provide public access to court data, and we should no longer accept the status quo.

At UniCourt (@UniCourtInc), we think these issues are crucially important to ensuring access to justice. That is why we are on a mission to provide EVERYONE meaningful access to their “public property” — the records of what happens in our federal and state courts. We build tools that harness modern technology to ensure the public’s time-honored, traditional right to scrutinize the courts and to support the public’s fundamental ability to ensure that justice is done.

• Share on