Think you've got a right to court records? Think again...
Over the past few years, the ability of journalists (or any private citizen, for that matter) to access various forms of public records in Colorado has been greatly diminished, from police reports to divorce filings. The loss of access to court records has been particularly aggravating, a bit of bureaucratic hubris that is as unnecessary as it is devious.
It wasn't always so.
There was a time, not so long ago, when I enjoyed my trips to the local courthouse to see what was going on in the justice system. Trials are rarely as interesting as they seem on TV, but if things got too dull, you could always head for the records room, to get the inside scoop on any number of cases. The clerks were friendly, and the information contained in a court file -- whether it's a divorce, a bankruptcy, a civil suit or a criminal prosecution -- could shed light on the situation that you can find nowhere else.
Public records such as court documents are the lifeblood of journalism. If we don't have them, there's no way to check the veracity of what your interview subjects tell you, or discover the things they don't want to tell you. And if we don't have them, the general public never finds out what's in them.
Why the changes? For years, hand-wringers in the judicial system have fretted over largely hypothetical "privacy issues" involving court files. State courts now routinely redact the names of sexual assault victims in court records, for example -- even though newspapers have voluntary but mightily consistent policies of not publishing such names. That's not in itself a barrier to access, of course, but the officious lords of the court have taken this logic several steps further, decreeing that all sorts of files must be expunged of all sorts of "personal" information -- from driver's license numbers to addresses to the reported income of someone who applies for taxpayer-funded legal assistance -- before the great unwashed are allowed to view such records.
One of the governing documents in all this nonsense is a 2005 directive from the Chief Justice of the Colorado Supreme Court, the aptly-named Mary Mullarkey, that went into effect at the end of 2006. You can read it here if you've got the stomach for Orwellian doublespeak. For those who don't, let me summarize: Chief Justice Directive 05-01 begins by declaring that the purpose of the policy is to "maximize accessibility to court records," then goes on to detail page after page of exceptions and exclusions that makes the whole idea of accessiblity an absurdist joke. It forbids many types of records from ever being available to the public electronically and indicates all sorts of redactions that should be made in paper records before anyone outside the sacred cabal of the court system can take a peek at them.
The ostensible reason for this appears to be some all-consuming fear of identity theft. Yet there's not one documented case I'm aware of in which somebody has stolen someone's identity by using court files. The directive is basically a nuclear solution to a nonexistent problem.
Add to this judicial fiat a series of rulings by different judicial districts about how to handle their records, and you have a nightmare of obfuscation that heaps additional work on already short-staffed court clerks and frustrates any member of the public trying to find out if, say, the guy who's dating his sister is (like he says) current on his child support from the last wife and has (like he says) completed his probation.
Often what results from this is not a total shutdown of records but a process of slow torture that amounts to effective denial. On a recent visit to the Arapahoe County courts, I humbly submitted my request for several criminal records. I was told each of the records would have to be redacted, page by page, by a court clerk to eliminate any personal information. No problem, I'd dealt with this before, was prepared for a slight delay, and knew there was slim chance any such information would be found in these files. They'd have to be read just the same, the clerk explained, and also reviewed by "our criminal team." That was a new wrinkle, but okay. Except after some further checking, she announced this was all going to take several days, and one file was so voluminous it was doubtful that I would get to see it before the next Olympics.
So I left with nothing.
In another jurisdiction -- Denver, for instance -- the process isn't nearly as convoluted. But that could change after the new justice center opens. There's always room for more barriers to public access when the whole system is designed to meet the needs of bureaucrats, not citizens.
After years of seeing scrutiny of the justice system whittled away piece by piece, I've come to the shockingly cynical conclusion that the dark-robed high muckamucks of this state really don't want any pesky outsiders inquiring about their work. Certainly, the public's rights seem to take a back seat in Directive 05-01 and all the local mandates that have followed at its heels. And unless the legislature feels public heat to beef up the Open Records Act, there's not much anybody can do. It's certainly pointless to challenge these edicts in court, when the people ultimately deciding the issue are the ones who wrote the edicts in the first place.
What are we losing? Here's one example: Back in 2001, the Rocky Mountain News did a bang-up series called "The Probate Pit," a searing indictment of the corruption and mismanagement of Denver's Probate Court. The piece relied heavily on court documents as well as interviews to show how elderly and impaired people were being plundered and exploited by guardians and conservators who were poorly supervised by court officials who seemed to have their own glaring conflicts of interest.
What's Denver's probate court like now? Hard to know. A 2006 audit pointed out ongoing issues with case backlogs and inadequate follow-up. Anecdotal reports since that time suggest the situation is even worse. But good luck trying to put together a detailed, objective look at the case load. All the guardian and conservator records, the same sort of records the News relied on in 2001 to build its story, are now "suppressed" -- meaning you and I have no business even asking for them.