Patrick B. McGuigan
A proposed change in Oklahoma state courts could significantly, and negatively, impact public access to public information. Michael D. Evans, administrative director of the Courts for Oklahoma, circulated a letter on September 20 announcing proposed Rule 31. Opportunities for comment ended November 4.
Rule 31 is a bad idea. While motivated by sincere concerns about identify theft, it is best understood as a near-perfect example of hard cases making bad law.
In his letter, Evans said it was under consideration “in an effort to protect personal identifier information in court documents.” However, the courts would “continue to gather personal identifier information for the business needs of the courts.”
A common reflection among journalists who have studied the proposed rule is that it inevitably will yield two separate (and unequal) sets of records for the judicial system. One set of records would be accessible to judges, lawyers for contending parties and presumably law enforcement. Those same records would be in theory remain accessible to the rest of us – the general public, and news organizations – but only after being significantly redacted. Only the redacted records would truly be “public” records in the Rule 31 matrix.
Speaking for editors, reporters and news consumers, M. Scott Carter last month wrote to state Supreme Court Justice Stephen Taylor, encouraging him “to reconsider this rule, or any such rule that would limit access to public information and public records.” Carter, who is president of the Oklahoma Pro Chapter, Society of Professional Journalists, wrote on behalf of many of us in the news profession:
“While we understand concerns about public access to personal information, any rule change limiting court information could cause even greater issues for the media as well as the general public. For decades, journalists, scholars and the public have relied on public information in court documents for research, stories, and to know, exactly, what the state's publicly funded judicial system is doing and to accurately report court-related events. Limits on information not only determine this transparency, but make it difficult for journalists to properly do their job.”
A legal system bias favoring openness rather than secrecy best serves the public interest.
Reporters and editors can offer (and recently have presented) many examples as to how inaccuracies are avoided because a dutiful reporter can check court records to determine exactly who is being charged with a crime or is otherwise involved in the legal system.
I affirm the concerns Carter -- who covers the state Capitol for The Journal Record, an Oklahoma City business newspaper -- raised in his letter.
Rule 31 should be opposed by the judicial system itself for additional reasons, and I made my own effort to lay out those reasons in a letter to Mr. Evans on Friday (November 4).
Bottom line, respect for the court system itself should compel opposition to Rule 31.
Citizens often employ their right to criticize, cajole and even counsel the judiciary. This is a right I have often exercised in commentaries over the past five decades, and even in a law school commencement address at Oklahoma City University.
Regardless of personal disagreements with some or even many judicial results, the judiciary is properly esteemed as the non-partisan branch of government, with a unique status different from, even if not higher than, the status afforded to the legislative and executive branches.
Critics of the judiciary know that is is the exception, rather than the rule, for matters raised in the judicial system to be sealed or redacted. Sealing court records is difficult, but not impossible, and that is how it should remain.
Citizens of our nation and state know, save for infrequent instances, the factors that yield decisions in most cases and controversies. These can be discerned because anyone who wishes to be informed can know the who, what, when, where, why and how of a case from public records.
Faith and trust in the judicial function must be preserved. In some measure, anyone using the publicly-funded courts give up at least some privacy rights. The Court system as a whole is an essential bulwark against secrecy, corruption, waste, fraud and abuse in government.
For the sake of openness and transparency in state government, and to maintain popular respect for the judiciary itself, Rule 31 must be rejected by the state Supreme Court.
Note: The editor of CapitolBeatOK, McGuigan is the author or editor of ten books, including “A Blueprint for Judicial Reform,” “Criminal Justice Reform: A Blueprint,” “Crime & Punishment in Modern America,” and “The Politics of Direct Democracy: Case Studies in Popular Decision Making.”