MINUTES May 15, 2017 Meeting Capital Judicial Center

ATTENDEES:

Jack Baldacci, Christa Berry, Ed Folsom, Peter Guffin, Jack Haycock, Hon. Andre Janelle, Mal Leary, Brian MacMaster, Kellie McKenney, Hon. Andrew Mead, Hon. Ann Murray, Laura O’Hanlon, Elizabeth Ward Saxl, Heather Staples, Francine Stark, Ilse Teeters-Trumpy, Debby Willis, and Dan Wood.

MATERIALS DISTRIBUTED AT THE MEETING:

The following materials were provided to Committee Members:

 The Agenda for the 5/15 TAP Meeting;  The proposed minutes from the 4/25 inaugural TAP Committee Meeting;  An overview of Maine Statutes, Court Rules, and Administrative Orders governing the confidentiality of information;  An email from Committee Member, Peter Guffin, presenting additional information relevant to the current legal landscape with respect to privacy in Maine;  A Washington Post article provided by Committee Member, Christa Berry, providing insight into the detrimental and unforeseen effects of having information in Court records easily accessible online;  A recently published article by the Council for Court Excellence offering an analysis of current remote access to Court records policies among the states.

INTRODUCTION:

The Chair welcomed the group again and asked all attendees to (re)introduce themselves.

OLD BUSINESS

There were no changes or modifications to the draft minutes and the minutes of the April 25, 2017 meeting were approved.

1 Transparency and Privacy in Court Records Task Force Minutes Changes to the meeting schedule were suggested, as follows:

June 7 will be an all day meeting (from 9 a.m. to 4 p.m.) June 20 (if that time is needed) from 1-4 p.m. The meeting originally scheduled for August 1 will be held on July 31, 2017 from 9 a.m.-1 p.m.

(All meetings will take place in the Multipurpose Room at the CJC) It is anticipated that the group will review the draft report by email and no additional meetings will be scheduled except if requested by TAP members.

The Chair discussed the Maine Judicial Branch’s business relationship with Tyler Technologies, the vendor chosen to develop the MJB’s new case management and e-filing systems. Although it is important to have a general idea about how the system works and to what level of detail Tyler can protect information, TAP’s work will not be focused on how to protect the information. Rather, TAP’s mandate is to make policy recommendations with respect to access to Court record. Nevertheless, the Chair will gather additional information about how Tyler’s system works to protect case information for all case types.

The two goals for May 15th meeting were outlined as follows:

Goal 1: To work with Justice Mead to develop a general policy statement for the Maine Judicial Branch; and

Goal 2: To review the legal overview developed by the legal research team as outlined by Jack Baldacci and Laura O’Hanlon, and begin to discuss the framework for how we are going to do our work and the format in which we are going to do our work.

DISCUSSION OF MAINE JUDICIAL BRANCH POLICY STATEMENT

Justice Mead led the discussion about drafting the Maine Judicial Branch’s policy statement that will be the philosophical base for the decisions about access and privacy. In the discussion he explained that we need a way to bring Maine’s policies to life and suggested that there are three models that may be useful:

 By proposing a new statute—drafting a bill and asking the Legislature to put the policy into statutes. Using this method, the Legislature would consider the proposal, make any changes and create a legislative pronouncement in the statutes. Any time changes were needed a legislative vote would be required.  By proposing a court rule—the Supreme Judicial Court is empowered to make rules that govern the operation of the courts. (The SJC has limited authority with regard to the 16 separate probate courts, but the SJC can promulgate rules of procedure). The SJC has established advisory committees to provide counsel and input before enacting rules.  By proposing an Administrative Order—the Chief Justice of the Supreme Judicial court is authorized to issue administrative orders that govern how the courts are run. Administrative Orders are most often issued after consultation with others, but they can be issued without a lot of process. (Justice Mead provided a view of the current Administrative Order Index.)

TAP will need to discuss the type of vehicle that would be most helpful to effectuating the policy.

Justice Mead provided information examples of two different policies from Illinois and Florida that provide different approaches to record access. Illinois has a broad policy statement and Florida has a very detailed Security matrix.

BRIEF SUMMARY OF GROUP DISCUSSION

The group engaged in a lively discussion, including the idea that a new case management system and integrated e-filing system will bring efficiency and cost controls. The group recognized that online access could be a benefit for the parties, justice partners, and the clerks, yet would require a careful balancing of the appropriate privacy interests.

A general discussion was held about how we conceptualize the terms— transparency and privacy. It is key to the integrity of the court system that we give the public access to information that allows the public to see how its government works. In addition, we must be sensitive to privacy concerns. The Legislature created the right to know law; everything is a public record unless it is not a public record. We will need to use something like that checklist for balancing the public rights v the private rights. Committee Members also discussed the possibility of retaining, in some form, the concept of practical obscurity. Just because a record is public does not necessarily mean that it needs to be put online, making things subject to long-term public broadcast. Just because information is public does not mean we have to set it on the curb.

3 Transparency and Privacy in Court Records Task Force Minutes Will people or commercial entities become hesitant to use the court system if they know their personal information is online or that their cases can be researched? Business entities already circumvent the court system through arbitration and other private forms of dispute resolution. There is a possibility that placing court records online would further encourage businesses to resolve their disputes in a private setting, and may also spur individuals to do so. Concerns were also raised about too much online information about juveniles –various case types contain a lot of information about children and the kinds of things to which they have been subjected. In addition, there is a concern about tracking the activities of victims of abuse; not just the DV or PFA cases, but personal information in other case types. When using a formal request to obtain government records, there would be staff looking at the file to determine what is protected, but in online access that protection breaks down.

Part of the discussion focused on the types of information that will be available to the public. The public should be able to know that the case exists, except in some case types. It is possible to publish documents that are informative, but that do not harm anyone. For example, there are wide-variety of cases that contain sensitive information. In those cases, the courts might publish the docket entries, or the docket entries and the petition and finding. Some case-types would be closed.

In addition, the group discussed the medium through which public records would be made public. Many documents are now available to the public, but as a practical matter people don't go to the court house and people don’t access them. If records are made available on line wide circulation is inevitable.

A tiered approach may be very helpful, and many Committee Members expressed approval with such an approach. The docket record and the documents are two separate things. The tiered approach is illustrated in cases such as the Criminal History Records Information Act (CHRIA) where the right of access changes depending upon the role of the requestor and the need to know. Defining access through rights and roles. Judges and appropriate clerks may have access to all information. An attorney might have the right to access all documents on a case on which he or she is an attorney of record. The group also discussed the vehicle by which the policy gets effectuated. Rules were described as quite collaborative and faster to amend. Most of those present favored the use of Rules.

KEY POINTS FROM GROUP DISCUSSION

At the conclusion of the discussion, Justice Mead summarized the comments and indicated he would begin working on the policy statement with the following guidance in mind:

All records are presumptively accessible. The presumption may be rebutted, if there is a statute or rule that protects the record/information. In addition, there may need to be a process under which individuals may request to have information that is not automatically restricted made confidential. Finally, there may be times when it is justifiable to make information available to some people based upon the roles they fill or the function they perform (for example, clerks and Department of Public Safety personnel).

There was no support for using statutes to articulate Court policy, TAP recommends using a Court Rule to govern court procedure, but some recognized that an Administrative Order might be necessary.

Justice Mead will begin writing the first draft of the overarching policy, which would be a preamble that would appear on the Maine Judicial Branch website. The draft will be circulated to the group as soon as possible.

LEGAL LANDSCAPE OVERVIEW

Jack Baldacci, Esq. provided an overview of the legal research materials posted on the TAP website. These include a legal memorandum provided by Judicial Branch employees (Dan Wood, Esq. and Laura O’Hanlon, Esq.) and a supplemental memorandum provided by TAP member Peter Guffin, Esq. describing the legal authorities that govern privacy and access, a spreadsheet containing statutory, rule, and administrative order citations related to access and protection of information in Maine, and a memorandum placing the citations from the spreadsheet into broad categories in an effort to illustrate the policy considerations taken into account by the Legislature and the Court in protecting or releasing information.

5 Transparency and Privacy in Court Records Task Force Minutes A PROPOSED FRAMEWORK FOR POLICY RECOMMENDATIONS

Laura O’Hanlon, Esq. provided an overview of the types of information courts are making available and the types of access methods being used from the Remote Public Access to Electronic Court Records: A Cross-Jurisdictional Review for the D.C. Courts (April 2017). In addition, she directed members to the Working Documents section of the TAP website. She described a process for working through the materials to generate a template that might be used as the framework for making specific policy recommendations, which would include looking at the roles and types of access available to people in those roles. For example, some information might not be available electronically, but might be available by request of staff member; other information might be available electronically through kiosks at the courthouse; some information might be available electronically from anywhere (remotely). In addition, some case types might not be available to the public at all. A sample shell of a matrix was provided as a PowerPoint slide. Laura’s PowerPoint presentation has been added to the TAP website. Laura also emphasized that the work of the Committee is largely a member-driven process. Laura thanked the members of the Committee for the materials they have already provided and encouraged Members to continue to submit materials to [email protected]. Any document submitted will be circulated among the full Committee for their review.

CLOSING COMMENTS

As part of the closing discussion, Justice Murray explained that she would be meeting with Tyler Technologies to gain a better understanding of the system’s capabilities and the ways in which the system may be configured to achieve the policy goals.

TASKS TO BE COMPLETED BEFORE FOR THE NEXT MEETING:

Review materials provided on TAP website and conduct additional research, as desired. Come prepared to develop a framework for Access to Maine Court Records and to begin making recommendations for access to, and privacy of, court records in Maine. UPCOMING MEETINGS:

June 7, 2017 9 a.m.- 4 p.m. June 20, 2017 1 p.m. - 4 p.m. July 31, 2017 9 a.m.-1 p.m.

WEBSITE: http://www.courts.maine.gov/maine_courts/committees/tap/

EMAIL: [email protected]

7 Transparency and Privacy in Court Records Task Force Minutes