Generally speaking, the public has access to all court records except those restricted by federal law, state law, court rule, or court order. If a court record includes personal information about an individual (whether a party to the case, witness, informant, minor, or juror) that is protected by legislative or judicial rule, that information is to be redacted, or that part of the record is to be sealed. Examples of restricted private data, (known as “personal identifiers”) include: full social security numbers, financial or health records, identification of minors or certain crime victims, adoption and probate records, and paternity results. Preventing public access to this type of private and sensitive information seems perfectly legitimate. But what about all remaining court records that do not disclose any protected personal data? When should those records be allowed to be sealed, and by whom?
The process of sealing, expunging, redacting, or destroying all or part of a case record varies from state to state. Before examining the procedures, let’s consider the public policy goals of allowing record sealing. The intention behind sealing records, particularly a criminal record, is to allow the individual to reintegrate into society after fulfilling the conditions of his or her punishment. If incented by the possibility of a sealed record upon completion of sentence or alternative treatment, the offender may be more amenable to rehabilitation, including educational and job training opportunities offered during incarceration. Additionally, with the reclassification of certain types of offenses (i.e., controlled substance possession or use), some criminal records from the past may not reflect contemporary standards of proportionality suitable to the crime. Shouldn’t an individual under those circumstances have the right to request his or her records be sealed, if not to advance the greater social benefit of reintegration into society and the workforce?
But wait, what about the public’s right to know? Shouldn’t a prospective employer, financial lender, or landlord be able to access the criminal history of an applicant? Interestingly, the trend appears to be moving in the direction of supporting the right to seal records, as noted in a recent article:
Legislators in several states are attempting to decide what’s more important-the public’s right to know or a convicted criminal’s right to a second chance? Advocates across the country are urging passage of protections they hope would give ex-offenders a better shot at a new life by erasing their criminal pasts. And while these efforts have failed before, a handful of bills expanding the type of records sealed recently gained traction in New York, New Mexico, and Illinois. The bills are facing strong opposition from media advocates, businesses that rely on criminal background checks before hiring employees and law enforcement agencies holding the records.
Andrea Pagagianis, Reporters Committee for Freedom of the Press, News Media & the Law, Spring 2012
Regardless of how these legislative battles are ultimately resolved, the demand for unsealed record access is not likely to diminish. The advances in technology and the courts’ collection of digitized records have made it very easy for interested individuals and information resellers to assemble criminal history records and perform background checks. In this electronic age, evidence of a past criminal history will become harder to conceal, and the consequences may last a virtual lifetime.
As previously noted, each state has its own procedures for sealing records. Each state may also limit the degree and finality of record removal, from redacting portions of a single document to complete record sealing or destruction (typically referred to as expungement). In this article, I’d like to focus on criminal record sealing for adults; civil and juvenile proceedings can be quite different, and may also render very different consequences for the individual seeking record concealment or removal.
To determine your state’s current policy on adult criminal record sealing, review the statutory and judicial guidelines governing eligibility and standing. You may want to seek legal counsel, as navigating this process may be quite daunting for the lay person. On CourtReference, search your state and county for links to local court rules and procedures to seal records. See, for example, the link to Florida’s Hernando County Circuit Court process for sealing and expunging records there.
There are, however, some broad common elements in all record sealing proceedings, regardless of jurisdiction:
1) The person seeking to seal a criminal record must request a hearing in the court where the case was originally filed, and present a compelling privacy concern that cannot be protected by any means other than restricting public access to the record. Reasonable notice of the hearing is generally required for all parties to the original criminal case, including the victim and law enforcement agencies involved.
2) The offender must have completed all terms of his or her sentence, including restitution if ordered, and cannot have committed any new offense or crime for a specified period of time since the completion of the sentence. The offender cannot have any criminal charges pending in any state or federal court.
3) The original conviction must be based on an act within the range of offenses currently eligible for sealing under the presiding court’s rules. Typically, crimes involving violence, lethal weapons, sexual assaults, harm to minors or the public are excluded from consideration.
4) The offender cannot seek to seal multiple records simultaneously, even if arising from a single criminal event.
5) Only the presiding judge at the hearing has the authority and discretion to seal all or part of a criminal record under review.
The discretion of the judge in not limitless, however; a sealing decision may be subject to review. There are strict protections in place to prevent a judge from sealing a record if any less onerous means0f protecting the privacy or safety of the offender are available. Agreement by all parties to seal a record does not trump the public’s right to access a criminal record. Further, merely adverse consequences for the offender (employability, deportation, etc.) do not meet the burden of a compelling privacy claim. And, records that have been sealed can also be subject to a request for unsealing, thereby restoring or opening the original documents to public access. Many state court administrative offices provide information about procedures and forms for record sealing. For example, in Colorado, the state judicial branch offers instructions and forms for sealing arrest and criminal records. Maryland offers expungement forms and brochures to remove records from public access in English, Spanish, and Korean. To expunge records from courts, police and motor vehicle files in Oregon, use these forms provided by the Oregon State Patrol.
Finally, it should be noted that sealing a court record does not necessarily preclude court personnel, law enforcement, or other government agencies from accessing a sealed record. There may be an overriding public safety issue deemed necessary to allow access from any court in which a record is sealed. In the post-911 era, elevated security concerns have exponentially increased the demand for background checks, not only from law enforcement agencies, but from prospective employers, media professionals, and the rest of us asserting our fundamental “right to know.”
Tags: Courtreference.com · Free Legal Help
Court systems continue to develop new ways of streamlining their procedures to reduce their expenses and backlog, and to improve customer service. Last year we noted the rise of telephonic court appearances for self-represented parties in some types of hearings. But “phoning it in” isn’t the only way to avoid a trip to the courthouse. In some areas, it is now possible to contest your traffic ticket by mail.
While telephone hearings are limited to routine motions that don’t require presentation of evidence or sworn testimony, traffic ticket mail contests are the real thing: the determination of guilt or innocence. In California, the leader in this trend – as it was the leader in telephonic appearances – the process is called Trial by Written Declaration. The defendant submits the declaration along with the bail amount for the offense (this is usually the maximum fine amount). The court reviews the declaration, along with any additional evidence such as the arresting officer’s sworn statement, and renders a decision. The defendant is notified of the decision by mail, which can be
- Not Guilty – along with a refund of the bail money
- Guilty of a reduced charge or with a reduced fine – along with partial refund of the bail money
- Guilty as charged – and the court keeps the bail money
No one has to travel to court, time and money are saved, and everyone is happy – unless the decision is Guilty. Perhaps the defendant could have made a better argument in person? No problem! The defendant can then request a new trial – in person – with no more grounds than simple disagreement with the first decision.
The California Judicial Branch has instructions as well as Request for Trial by Written Declaration and Request for New Trial forms available for download.
Most Superior Courts in California have specific forms and procedures for handling trials-by-mail. Alameda County Superior Court’s website has instructions along with downloadable instructions and a request form. Del Norte County Superior Court’s website has similar instructions, with information about sources of the state form and its own local form.
The District of Columbia Department of Motor Vehicles also allows adjudication of traffic tickets by mail, and provides detailed instructions. To make it easier, D.C. does not require payment of the fine or bail when the request is submitted; you only pay if you lose. To make it even easier, D.C. allows you to submit your written statement and have your hearing online, although you still have to mail in any additional evidence. There’s no automatic new trial in person in D.C. if you disagree with the decision; you can appeal to the Traffic Appeals Adjudication Board, but that process is exclusively by mail.
You can also fight your ticket by mail in Hawaii (scroll down to the question “What if I submit a written statement instead of going to court?”). Your written statement does not have to accompanied by a specific form, you don’t pay unless you lose, and you can request a new trial in person if you don’t like the decision.
Adjudications by mail in Oregon are a local option; some courts allow them and some do not. You have to submit the fine amount along with your written statement. Even within a county, the procedure may vary by court; for an example see the very brief Clackamas County instructions (scroll down to ”Option 4″). In other counties, the procedure may be more specific; see the Deschutes County instructions, which include downloadable forms to waive your right to a live hearing in court and submit your sworn testimony. CourtReference’s Guide to Oregon Courts – Self Help and Legal Research page has links to these and other courts’ instructions; look for links to traffic information. You can also look for individual courts’ forms on our Forms page.
As in Oregon, availability of mail adjudication in Washington varies by court. Most Washington courts require in-person appearances in contested traffic cases, but many do; examples are found in Fife Municipal Court, Milton Municipal Court (for each, scroll down the page to “What is a contested hearing by mail?”), Lynnwood Municipal Court, Poulsbo Municipal Court, and Snohomish County District Court. You don’t pay unless you lose, but there is no appeal of a hearing-by-mail in Washington. Washington courts that allow mail contests have their own forms, which can be found at CourtReference.
Tags: California · Courtreference.com · District of Columbia · Hawaii · News · Oregon · Washington
October 11th, 2012 · 1 Comment
Historically, state courts have offered public access to court records where the information resides-at the local courthouse. Any person willing to travel to the courthouse could request to view and copy records from the court clerk or document custodian in the available format, whether paper or electronic. However, with the emergence of record scanning, data collection and storage, the public has demanded instant delivery of all court documents, including judicial opinions, orders, pleadings, and images. Many state courts have developed web sites and online subscription services to provide virtual access to their records, previously accessible only by physically visiting the courthouse repositories. Additionally, some private companies have capitalized on the demand for court records by collecting documents from multiple jurisdictions and creating databases that offer expanded state coverage. The advances in technology have radically changed the way that courts collect, archive, and distribute their data, but the corollary expectations of the public to immediate and unrestricted access have compelled many states to reexamine the openness of their court record policies.
While most courts continue to digitize and maintain their records electronically, many are limiting the type of records or contents available for public access. That is because some of those records may disclose private information that can be used to harm an individual. Personal identifying information, such as a party’s full name, birth date, address, social security number, financial or health records may be used to inflict financial harm, damage a reputation, or invade a person’s privacy. Identity theft, the fastest growing crime in the nation according to recent FBI statistics, can be facilitated by the fraudulent use of someone’s personal data found in court records. The availability of batch or bulk data enhances the risk as multiple records can be retrieved remotely. As state legislatures and Congress contemplate stricter privacy guidelines on data collected about individuals and consumers, court administrators should follow these legislative developments closely.
The National Center for State Courts, one of many organizations that monitor judicial trends, has been developing guidelines for online record distribution since the technology emerged. In 2002, the Center provided these recommendations:
The guidelines address court records in both paper and electronic form, and although they are premised on a general rule that access should be the same no matter the format, they recognize that some information in court records may be inappropriate for remote electronic access. Essentially, the guidelines advise each state court to determine the types of court record information that should be restricted from remote electronic access…The commentary to guidelines suggests this information include Social Security numbers, financial identifiers, medical records, and information about minors and third-party witnesses and victims.
Lynn E. Sudbeck, The Justice System Journal, Volume 27, Number 3 (2006)
The personal data identifiers above could certainly be used to steal, damage, or destroy an individual’s financial status, reputation, or right to privacy. There are additional identifiers that could be included by virtue of the case type requested: adoption, probate, and guardianship records, paternity results, and mental health assessments. It is easy to contemplate the danger posed by revealing these data elements, however benign the inquiry or inadvertent the disclosure. What safeguards are in place to prevent sensitive personal information from being divulged in state court records, whether in paper or electronic format?
State courts must seek a balance between protecting privacy rights and public access to court records. The online technology continues to evolve, with enhancements in data searchability and records maintenance. Many jurisdictions are moving toward mandatory electronic filing of case documents, while others continue to operate in a paper-only environment. What options are available to state courts confronted by this dilemma? Here is a summary of some of the solutions proposed by court staff and court-watchers:
1) Return to courthouse access only. Perhaps the least progressive solution, as counter-access only is more labor intensive, less efficient, and more time restrictive. But the requirement that someone physically travel to the courthouse and request information in-person reduces the presumption of fraudulent or malevolent use, and also discourages bulk record requests.
2) Limit the case types or documents available online. Certain types of cases or documents would be restricted to courthouse access. Case types would include family-court proceedings, probate, guardianship, or mental health commitments, paternity and sterilization proceedings. Documents limited to courthouse viewing would include videos, autopsy photos and reports, medical or psychiatric records, accident photos, income tax returns, and expert evaluations in family-court proceedings.
All other case types and documents could be available online, although some court administrators advocate only allowing court indexes, calendars, and registers be accessible remotely.
3) Create levels of access by user type. Limit access to type of user. Create levels of permission to view and copy data dependent on the requester’s professional or qualified interest-parties to the case, attorneys, or court staff. Technology exists to grant access to entire record to these individuals, while restricting personal data fields to other users, but it is cost-prohibitive for many courts.
A related solution would be to allow public access, but to require end users to justify the purpose for requesting the information, and to certify that the data would be used only for that purpose. An online agreement or contract between the courts and users would be a pre-condition for this access.
4) Standardize the personal information to be redacted from a court record, whether accessed remotely or at the courthouse. This may appear to be the most practical solution, but it is not without its objectors. Generally, the type of information to be redacted (without sealing the entire record) would include: Social Security number; full date of birth; address and phone listings; financial account numbers; driver’s license number, and Taxpayer ID. These personal identifiers would be removed not only for parties to the case, but also for witnesses, informants, victims, children, and jurors. Who objects to these restrictions? Most vocally, the news media, but others who may want to create dossiers on individuals or ascertain criminal histories, such as prospective employers, private membership organizations, even potential suitors, and, of course, identity thieves.
A) Who is responsible for redacting the information?
1) Many court administrators believe that the attorneys filing the court documents are responsible for redacting personal information. Some states already require this in their local court rules. There are two benefits to this approach. The first is that it eliminates the possibility that the data becomes part of the public record if removed before filing. The second is that it encourages attorneys to discuss potentially sensitive disclosure issues with their clients. Some jurisdictions have considered proposing sanctions against attorneys who neglect to redact personal information in their document filings.
2) Others maintain that the court clerks should be responsible for redacting personal information upon receipt of a filed document, particularly if a court has established its own standards for restricted data. Alternatively, some courts have considered allowing affected parties to request removal of personal data found in their records, to be corrected by court personnel. However, not all courts have the staff to perform this task, nor the budget to hire additional clerks or purchase redaction software.
3) Technology can offer solutions. There are software programs that can redact data from scanned documents, but for many courts the costs are high and the results not always foolproof. Some programs work with specific file types, and some can only extract preset information fields. XML, a computer language designed to transport and store data, has been deemed the best solution for delineating court data by user.
To find the states that offer court records throughout the U.S., search CourtReference and select your state of interest. Keep checking our website for additions to the growing list of online court records!
Tags: Finding Court Records · News · Uncategorized