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Those who are curious about the rape case against Kobe Bryant,
the basketball superstar, need only click on a couple of links
on the Web site of the Colorado court system to see hundred
of legal filings.
But litigants who are appearing before a federal judge have
a much harder time if they want to find out whether the jurist
has a conflict of interest. According to a new report by the
Government Accountability Office, they must submit a request
in writing; swear under oath that they will not use the information
unlawfully or for a commercial purpose; pay a copying fee;
and wait an average of 90 days before the documents are mailed
to them.
They will not find the documents on the Internet, unless someone
who has gone to the trouble of getting the physical documents
posts them. Indeed, the G.A.O. says its own report is too
sensitive to post on the Internet, although the agency will
respond to individual requests for it.
Both kinds of documents are public records, required by law
to be available to anyone who asks. But the two approaches
demonstrate that "public" can mean different things.
And it is not easy to explain those differences, except perhaps
by the power judges wield. The same technology is available
in both cases, and similar security and privacy concerns are
present as well.
In Colorado, prosecutors and lawyers for Mr. Bryant's accuser
say that public access there has been too easy, playing a
role in the near-disintegration of the case against him. Critics
of the process for obtaining judges' financial disclosure
forms say it is much too hard, discouraging legitimate scrutiny
of the conduct of government officials.
"Some personal information should not be available at
all," said Douglas T. Kendall, the executive director
of Community Rights Counsel, a public interest law firm. "But
information about what stocks a judge owns should be utterly
public."
With the explosion of official information available on the
Internet, including filings in custody, bankruptcy and criminal
cases, some legal scholars are saying that it has become too
easy to learn things about one's neighbors. They say there
is a value to an occasional speed bump on the information
superhighway and to what the Supreme Court has called the
"practical obscurity" of some sorts of information
that is simultaneously public and sensitive.
"Public records law shouldn't be a government-assisted
privacy violation," said Daniel J. Solove, a George Washington
University law professor.
Others say that public scrutiny of all of the workings of
government is enhanced by ready access to all of its records.
"Public means public, and we have arrived in a world
in which documents and electronic files are indistinguishable,"
said Susan P. Crawford, an expert in Internet law at Cardozo
Law School. "It is too late to artificially introduce
friction into the searchability of these files."
A great deal of sensitive and potentially embarrassing information
is filed in court every day. Some of it is meant to be sealed,
in both paper and electronic form. Mistakes happen in both
mediums, but the speed and reach of the Internet can amplify
them.
In the Bryant case, court clerks have twice posted the name
of Mr. Bryant's accuser, notwithstanding a court order to
keep it secret. In addition, a court clerk mistakenly e-mailed
a transcript of a secret hearing to seven news organizations,
including testimony from a defense expert that suggested the
woman had sex with another man soon after her encounter with
Mr. Bryant. After a battle that reached the Supreme Court,
almost the entire transcript was made public.
Lawyers for Mr. Bryant's accuser say the mistakes have endangered
her, done harm to her mental well-being, undermined her willingness
to pursue the case and will discourage others from coming
forward with allegations of sexual assault. Last month, they
asked the judge in the case to stop posting court documents
on the Web site.
John C. Clune, a lawyer for the accuser, said last month that
reporters should be required to get documents the old-fashioned
way. "The media can approach the window at the Eagle
County Justice Center," he wrote, "and make their
request."
News organizations, including The New York Times, opposed
that suggestion, saying their constitutional right to "contemporaneous
access" would be violated by the delays "that would
inevitably result from having competing members of the press
lined up in front of the clerk's window to await hard-copy
printouts."
In a decision released Monday, Judge W. Terry Ruckriegle,
of Eagle County District Court, said there was no going back.
He said the Web site handles an average of 712 document requests
in the Bryant case every business day and that the clerk's
office would be overwhelmed if it had to respond to those
requests at the courthouse.
Federal judges have a different view, at least when it comes
to data about their own financial affairs. They say that disclosure
of some information could endanger them or subject them to
identity theft.
Before the Internet era, the Supreme Court anticipated the
issue of whether requiring a little work to get sensitive
information might be warranted. The court upheld the government's
refusal to disclose F.B.I. arrest records compiled from publicly
available but hard-to-find information.
"Plainly there is a vast difference," Justice John
Paul Stevens wrote in 1989, "between the public records
that might be found after a diligent search of courthouse
files, county archives and local police stations throughout
the country and a computerized summary located in a single
clearinghouse of information."
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