Six years ago, the New Jersey Supreme Court
seemed close to adopting a recommendation by one of its committees
to post almost every court record on the Internet, available to
anyone with a modem and a computer.
Now, however, in light
of budgetary concerns and privacy issues, the judiciary appears to
be stepping back from that plan.
Toni McLaughlin, assistant
director for Internet services for New Jersey's Administrative
Office of the Courts, says that for the time being, complete
Internet access to court documents will not be available.
"The judiciary does not have the money right now" to expand
electronic access, says McLaughlin. "The judiciary's budget is not
what we would like it to be." The judiciary also has major concerns
over privacy issues. Documents are accessible at local courthouses,
but that is a far cry from making them available over the Internet,
says McLaughlin.
The judiciary has yet to address those
privacy concerns, as well as the possibility that disclosure could
violate statutory guarantees that guarantee privacy, she adds.
For the same reasons, McLaughlin says, the judiciary is not
ready to endorse the Model Policy on Public Access to Court Records,
released earlier this year by the Conference of Chief Justices and
the Conference of State Court Administrators. The policy said most
records should be made available on the Internet.
In 1996,
the Public Access Subcommittee of the Court's Judiciary Information
Systems Policy Committee, headed by Appellate Division Judge Herman
Michels, recommended that virtually every document kept by the court
system be made available online.
The committee, in a
published report, said the judiciary should use the Internet to make
everything from pleadings in Special Civil Part cases to filings in
matrimonial actions available to the public. There is no reason why
documents that were always public, yet buried in files in county
clerks' offices, should not be viewable over the Web, the panel
reasoned.
The Michels panel rejected concerns that court
documents, if made so easily available, could be used to violate
someone's privacy rights. "There is always the possibility of misuse
of information no matter what," said Michels at the time. "It is
something we cannot control."
At present, the judiciary
makes a wide range of information available on its Internet site,
www.judiciary.state.nj.us, such as published New Jersey Supreme
Court and Appellate Division decisions, the Rules of Court, some
trial judges' rulings on motions and attorney disciplinary
histories.
And, a pilot project in Monmouth County, N.J.,
allows access to some case documents over the Internet for a fee.
The judiciary is not ready to move beyond that, however,
McLaughlin says.
The budget issue is not a new one. New
Jersey Govs. Christine Todd Whitman and James McGreevey rebuffed
requests from the judiciary for millions of dollars to update its
aging computer system, which dates to the early 1980s.
In
testimony before Senate and Assembly budget committees, judiciary
officials repeatedly have said that unless money for upgrades is
available, the court system could crash. Moreover, repairs cannot be
made because applicable hardware and software no longer are
available.
Most recently, Administrative Director of the
Courts Richard Williams asked the Senate Budget and Appropriations
Committee in April for an additional $118 million over the next five
years to pay for upgrades. That would be on top of the judiciary's
proposed budget of $569.8 million for the fiscal year that begins
July 1.
The senators were sympathetic to Williams' plea,
which has become an annual pitch by the AOC, but gave no indication
that they would provide the funding.
The judiciary currently
does not have the capability to make documents available over the
Internet, McLaughlin says. That will not change, she says, "unless
there are big changes in the budget."
And then there is the
issue of privacy. "It is something we are concerned about," says
McLaughlin.
That concern is echoed by Princeton, N.J., solo
practitioner Grayson Barber, who concentrates on First Amendment and
privacy issues and is worried about unfettered computer access to
court documents.
Should matrimonial documents, which are
replete with financial information and personal disclosures and
accusations, be made public? Barber asks. What about criminal cases
in which, after a number of years, the information is to be
expunged? she adds.
That material may be deleted by the
judiciary, but that does not mean it hasn't been cut and pasted and
maintained somewhere else, she says.
And, she says, those
documents could be used by others to commit identity theft.
"Things have changed in six years," says Barber. "The
Internet has evolved to a point that I don't think was envisioned by
the Michels committee. There are serious issues that have yet to be
addressed by the judiciary.
"It's a good time to take a
full-scale look at all of these issues," says Barber. "There may be
a lot of unintended consequences" with adopting a policy of complete
Internet publication of court documents. "With complete
availability, you may be violating [privacy] statutes without
meaning to."
McLaughlin cannot say when the judiciary will
adopt a formal policy, again noting that little will change from the
current practice until the budget situation improves. She adds that
the balance between Internet availability of documents and privacy
"is not yet there."
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