How public are publicly-available court records?

After court records revealed that Google paid Apple $1 billion in 2014 in order to keep its search engine on the iPhone, a long-simmering legal dispute turned into an uproar.

During a hearing on Jan. 14, a lawyer for the software company Oracle said the search engine giant had an agreement with Apple that gave the company a percentage of the revenue Google earns through searches generated on an iPhone.

But when the lawyer, Annette Hurst, inadvertently revealed the exact percentage, the copyright suit that Oracle brought against Apple became something else entirely – a dispute about what is considered public information.

Lawyers have long debated the merits of disclosing particular pieces of information in open court – especially when it’s sensitive enough to be considered a trade secret.

But as courts have moved toward making records available electronically, especially in federal court, the balance between maintaining sensitive information and the public’s right to know has become more urgent.

"Suddenly all of these privacy concerns that hadn’t been a big deal when we we’re just talking about paper records – even though they contained the same information – now were a big deal [because] they were available electronically," says Gregg Leslie, legal defense director at the Reporters Committee for the Freedom of the Press in Washington.

A disappearing transcript

But these debates shouldn’t be an excuse to limit the public’s access to records, Mr. Leslie says. Instead, state courts, which operate independently, could consider following the model of the federal courts, where judges will often require that sensitive information be filed in a separate document that isn’t public.

"The presumption should be openness," he says, "and if there’s specific information that should not be released to the public, it should be redacted or never brought into the court in the first place."

The dispute between Oracle and Apple has deepened since that January hearing, with several media outlets reporting on the disclosure, first revealed by Bloomberg News. But then the hearing transcript disappeared from the court records filed online, with Google’s lawyers saying the information should never have been disclosed.

Rumors have long been floated about a deal between the two companies, but exact amounts had never been made public.

After weeks of disputes between the tech firms – including an effort by Google’s lawyers to bring a charge of civil contempt against Oracle’s lawyer – a federal judge sealed the transcript on Feb. 8, blocking it from public view.

The move to electronic court records has been a gradual process.

A significant milestone came in 2001, when the database PACER, which includes federal court records from across the country, become publicly available online, though users must pay 10 cents for each page they view. Previously, the database was only available at courthouse computer terminals.

But in state courts, the use of electronic records can vary widely, with some courts using electronic filing internally but keeping their public records available only in traditional paper files.

"That’s not been a simple process, and it’s not simple even now," says Frederic Lederer, a professor at William and Mary School of Law in Williamsburg, Va., who directs the school's Center for Legal and Court Technology. "We not only have courts that are entirely traditional, but we have many courts that are in the process of transitioning in one form or another to [electronic records]."

"Probably more human errors"

Despite some advances allowing lawyers to more easily review electronic records to see if they can be turned over to the other side during a civil suit, simple tasks, such as obtaining a transcript of a case, have remained mostly unchanged, especially in state courts.

Inadvertent disclosures of electronic records are relatively rare, says Leslie, of the Reporter’s Committee. "There are probably more human errors by people doing it the traditional way," he says.

In Boston, where an open government group has repeatedly given the state’s public records law a failing grade, one man’s attempt to challenge his life without parole sentence for a murder committed when he was 16 was stymied by a missing trial transcript that took three years to produce.

Lawyers for Kentel Weaver, who was convicted of killing 15-year old Germaine Rucker in the city’s Dorchester neighborhood in 2003, had hoped to challenge his conviction on the grounds that his confession to police had come after his mother – who was described as deeply religious – had coerced him into confessing to the crime “for the good of his soul.” It was also, she said, the only way she believed he could obtain a lawyer, even though all criminal-case defendants have the right to an attorney.

Two years after his conviction in 2006, his court-appointed lawyer requested a trial transcript in order to press for a new trial. But obtaining the records took nearly three years, with a court reporter who hadn’t produced the records briefly held in contempt, records show.

“No responsible lawyer in a first-degree murder case can file a motion for new trial in the absence of a transcript and an assembled record. The delay here is attributable to the government,” wrote Ruth Greenberg, Mr. Weaver’s lawyer, in a 2011 filing.

Last March, after the US Supreme Court and the state’s highest court began chipping away at the laws that allowed states to impose mandatory sentences of life without parole for juvenile murderers, a Superior Court judge in Boston denied his request for a new trial. His case has returned to the state’s Supreme Judicial Court.

State courts in Massachusetts have also experimented with replacing court reporters – who often work on a freelance basis – with an automated system that can make an audio recording of a trial, a move that has met resistance from some lawyers and judges worried about transcription errors.

How much should be public?

As electronic records become more common, decisions about redacting particular pieces of information or making it publicly available have become thornier.

With some courts, especially at the appellate level, making audio recordings or even video available of court proceedings, privacy concerns become tricky, says Karl Bayer, a lawyer in Austin who often serves as a mediator between parties.

“If it were something involving a child rape, I could see a court saying we’re not going to audiotape this one, the public doesn’t need to know about something like that. On the other hand, you get something like the movie ‘Spotlight,’ ” he says, referring to the movie released last year about the Boston Globe’s investigation into a cover-up of sexual abuse in the Catholic Church. “Shouldn’t the public be able to hear the trial of that case? And I think the answer’s probably ‘Yes,’ but you do need safeguards to protect the identity of the victim.”

But, he adds, "I think it’s not a blanket rule. I can see some interest in personal privacy or trade secret kinds of information outweighing the public’s right to know."

Making electronic records of cases available online has also led to a debate about privacy, sometimes pitting public officials against the press and the public.

"The more information that we have, the more likely somebody wants to make it publicly available to prove that we’re all doing our jobs right [as judges and elected officials]” says Mr. Lederer, the law professor. "And when you start saying, ‘No, this is harmful or inappropriate,’ that’s always a subjective judgment call."

In Virginia, one local newspaper discovered that despite requesting court records that might appear to be public, decisions about whether to release them can be determined by individual court clerks.

The Daily Press, based in Newport News, Va., filed suit under the state’s Freedom of Information Act in an attempt to get access to records from more than a hundred local courts held in a central database run by the state in bulk.

By painstakingly piecing the data together in collaboration with the non-profit Code for America, the newspaper found last month that white defendants had significantly better outcomes when pleading guilty to a variety of crimes than black defendants.

But last month, a local circuit court judge ruled that bulk access to the records had to come with the permission of local court clerks, a move one executive from the paper called "disheartening."

Appeals to privacy or concerns about identity theft can also be exaggerated, argues Leslie, of the Reporter’s Committee. He describes identity theft as a societal problem, noting that banks can now make decisions on whether to accept a customer based on information such as social security numbers, making them much more valuable than in the past if they are accidentally disclosed in a public record.

The public can lose out in that fight, he says, while databases such as PACER allow people to learn about a case without waiting for the media to write about it.

"In a sense,” he says, "society has created this problem and they’ve tried to fix it by restricting access to information, and in the end I think it’s really the wrong approach."