Online court records raise new questions about access and privacy

By Lavilla Capener

“Matt” could have been any college kid in Wisconsin. A shy honors student who enjoyed composing music and creative writing, Matt was three credits away from graduating from UW-Madison when he had his first manic episode in 2006.

Later diagnosed with bi-polar disorder, Matt sent out threatening e-mails to several professors and female students. As a result, Matt was charged with four disorderly conduct misdemeanors, was under restraining order and spent some time in jail. As Matt attempted to find a job after the episode, he discovered that employers did not want anything to do with him.

Although Matt’s mother knows it is illegal to discriminate based on convictions or pending court cases, she says she believes potential employers are checking her son’s record on Wisconsin’s online database, commonly referred to as CCAP, and not hiring him because of it.

“He’s a wonderful and gifted writer, but it will be difficult for him to get a job as a writer with this CCAP situation as it is,” said Matt’s mom, who asked that her family’s names not be used for this story. “He has this stigma now attached to his name.”

Matt’s cases are currently pending in Dane County Circuit Court. Meanwhile, he has yet to find stable employment. Matt currently works at Chrysalis, an organization that provides sheltered employment to people with mental illnesses.

Millions of people use the state’s online court records database every day without restriction to look up the records of their friends, neighbors and co-workers. But at what cost?

Before the Internet, a person had to physically visit a county courthouse to access court records to learn about the arrests or convictions of a neighbor, relative or teacher. Now, more than 3 million people a day view Wisconsin circuit court records online. This has ignited a debate about the precarious balance between the public’s right to know and an individual’s right to privacy, bringing out passionate opinions on all sides of the issue.

The Wisconsin Circuit Court Access (WCCA), created in 1999 and available here, provides the public with access to court records from all 72 Wisconsin counties. The court staff in each county enters the records into the Consolidated Court Automation Programs (CCAP) and the records are then published on WCCA. Records available on WCCA are all open records under the state’s public records statute.

State Rep. Marlin Schneider (D-Wisconsin Rapids), a staunch advocate of privacy rights, said he thinks the site is not being used for legitimate purposes.

“This has become is a big gossip column for every busy body in the world and for every employer to use to discriminate against the law,” said Schneider.

Schneider introduced a bill in state Legislature last year that would have restricted public access to WCCA, but kept public records available at court clerk’s offices.

Schneider said he introduced the bill because of constituent concerns over privacy rights.

“What compelled me to introduce the bill were the complaints I was getting from people who had done absolutely nothing wrong but because they were charged with something, they ended up in CCAP and their lives were being destroyed,” said Schneider.

Schneider’s bill failed in the state Senate in March 2008.

Bill Lueders, president of the Wisconsin Freedom of Information Council and editor of the Isthmus, predicted Schneider’s efforts to restrict public access to WCCA will not be successful in the future.

“I don’t think that Marlin Schneider has support either in the legislature or in society at large,” Lueders said.

Lueders said it is illegal to discriminate based on a criminal record in Wisconsin and that the public’s right to information trumps the small number of people who use the site for discriminatory purposes.

“There are probably victims of discrimination who blame the site for the discrimination that occurs,” Lueders said. “But I don’t think that the state of Wisconsin is on the verge of revoking access to this information.”

The state has taken some steps to prevent abuse of the information. A disclaimer on the Web site’s front page states that it is illegal for employees to discriminate based on an arrest or conviction record, and the warning is repeated on the individual case page as well.

Schneider’s bill would have allowed specific groups of people to continue to access CCAP records. The bill would have allowed access for accredited journalists, court officials, law enforcement personnel, attorneys and people who use court documents in their jobs.

Schneider did not address the logistical problems that would arise if entry to the site was restricted to certain groups of people.

“It wasn’t up to me to make that determination as to how they would do that,” Schneider said. “The system would obviously require a password in order to access it.”

Schneider maintained journalists would still have access to the records, but the bill restricted the definition of a journalist to a member of a Wisconsin media association. Bloggers, freelancers and journalism students, for example, likely would not have access to the site.

The bill would have also allowed for limited citizen access to CCAP information, but would have required an extensive in-person written request at county courthouses.

Attorney General J.B. Van Hollen, in a position paper on Schneider’s bill last year, said restricting access to online records would add unnecessary costs and time constraints on records requesters and would restrict public access to open records.

“I firmly believe that the exclusion of the general public from access to WCCA is not appropriate and frustrates the state’s compelling interest in accessible government,” Van Hollen wrote.

A third option, proposed by state Rep. Robin Vos (R-Racine) in a bill earlier this year, is to remove records of not-guilty verdicts, overturned convictions and dismissed charges from WCCA.

Schneider said removing these records will protect people from discrimination.

“People who are innocent are being falsely damaged by this system,” said Schneider, who also sponsored the bill. “And there is little or no way for them to respond to it.”

Peter Fox, executive director of the Wisconsin News Association, said all verdicts should be included on WCCA because they are part of the complete record of the Wisconsin court system. Fox said that to have two sets of records, one on paper and one online, defeats the purpose of open records laws.

“Looking at the circuit court access program, if there is to be a change it should be to take the whole system down rather than to just have fragments of it available to the public,” Fox said.

Overall, though, Fox said the site is a positive trend in open records policy.

“This is really the first time that the public has had an opportunity to have a fuller access to court records and to have the opportunity for a better view of how the courts work and a better understanding of how cases progress,”  Fox said.

Fox said the site is not running rampant as critics claim, because there is an oversight committee that evaluates ongoing issues and citizen concerns.

The WCCA Oversight Committee was created 2000, one year after WCCA went online, to develop a consistent policy about court records, monitor the site and address privacy issues. The committee, which consists of judges, lawyers, journalists, citizens and law enforcement officials, has convened twice to evaluate the site and provide recommendations for improvement.

Fox, who is a member of the committee, said it plays a necessary watchdog role and ensures that the site does not operate unchecked.

“It’s not that the CCAP program is non-responsive to the public… The people at the office of the state courts do pay attention to this and are concerned that it operates properly,” Fox said.

The committee last issued a report, available here, in March 2006 and came up with 31 recommendations for the site.

Despite the existence of the oversight committee, Schneider sees the heavy traffic as a sign the site is being used improperly.

“Right now there are three to four million hits on the site everyday,” Schneider said. “Those are not legitimate hits. Those are people who are just being nosy for the most part.”

Lueders said he thinks the popularity of the site shows the unlikelihood of future restrictions.

“I think that there would be a huge public backlash against removing this information from public availability,” Lueders said. “There’s a huge constituency of people who like having access to this information.”