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PUBLIC RECORDS ON THE INTERNET

Description of issue. One of the hallmarks of our democracy is open government. Most government agency and court records are considered "public" records, primarily so "we the people" can monitor our government. In the past, individuals accessed public records by traveling to the courthouse or to the government office and using the records there, a time-consuming and often expensive task. In recent years, however, a growing number of government agencies and court systems have made these records available on the Internet.

Upon first consideration, it might be thought beneficial for government records to be easily available to the public via the Internet. After all, our government is supposed to be accessible to citizens.

• But what happens when the full texts of divorce records are available to anyone with an Internet connection, complete with sensitive financial data and family histories?
• What about access to an individual's criminal records of years gone by, showing a crime for which the individual has long since paid his or her debt to society, and which may have been legally expunged?
• Will an employer have a forgiving attitude toward a 30-year-old whose criminal record shows a conviction for shoplifting when the applicant was 19 years of age?
• Will an employer overlook a DUI conviction even after the individual has lived free of alcohol for many years?
• Is one's bankruptcy cause for negative value judgements by employers, relatives and neighbors?
• Should stalkers be able to locate their victims just because that person votes or drives, thereby revealing the home addresses in public records?
• Should identity thieves be able to pluck Social Security numbers, dates of birth, and mothers' maiden names from public records posted on the Internet?

Looking ahead. Unless we are somehow transformed into a tolerant society, our "transparent society," to borrow a term from sci-fi writer David Brin, is going to pose significant problems for a large number of individuals. The full texts of criminal and civil court records, divorce decrees, bankruptcies, and more are slated to be available from government and information broker websites. Employers are likely to use such information to make adverse hiring decisions. Identity thieves will find their pot of gold at the end of the rainbow simply by clicking a mouse. And neighbors and relatives may learn more about us than we are comfortable with.

Georgetown University law professor Jeffrey Rosen wrote The Unwanted Gaze about just such a scenario. He explains the value of privacy protection as follows:

Privacy . protects us from being objectified and simplified and judged out of context in a world of short attention spans, a world in which part of our identity can be mistaken for the whole of our identity. (p.115)

There are several potential drawbacks for posting public records online, especially the full texts of court records.

• Fewer individuals will choose to participate in government in order to prevent information about them from being posted on the Internet.
• Many will choose not to seek justice through the court system. Justice will only be available to those with the resources and know-how to seek private judicial proceedings.
• Individuals will experience shame and embarrassment, even discrimination, when details of their personal lives are broadcast in court records available on the Internet.
• Reputations will be destroyed because of errors.
• Data from electronic public records files will be used for secondary purposes that stray far from the original public policy purposes for which they were first created, that being government accountability.
• A particularly troubling consequence of untrammeled access to electronic public records is the loss of "social forgiveness." The 30 year-old who has turned his life around might be judged harshly for his transgressions at age 19.
• Our society will see a growing number of individuals who are disenfranchised for life. Large numbers will not be able to find employment because of negative information in court files - whether true or not - from years gone by. Or they will be relegated to lower-paying jobs in the service industries.

The solution is not to ban public records altogether from the Internet. Instead, records should be selectively redacted, for example, by removing Social Security numbers and financial account data. Instead of publishing the full texts of sensitive proceedings such as divorce cases, on the Internet, just the index information should be published. Certain categories of case files, family court records for example, should be available at the court house and not online. These and other solutions must be sought in order to prevent the negative consequences of publishing public records online, but without losing sight of the need for access to public records in order to provide oversight of our government.

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