April 6, 2014

Journalists and members of the public would no longer have access to court documents in cases where the defendant avoided conviction under a measure passed 18-1 by the Alaska Senate.

The bill is among the latest attempts by state lawmakers to restrict access to court case records, particularly electronic documents, in balancing the rights of those charged with crimes against the free flow of information in a democracy.

The Alaska bill, now pending in the House, would bar access by the public to court records in criminal cases in which defendants are acquitted or charges are dismissed. The records are now open to anyone in an online database called CourtView and at Alaska’s courthouses, said Andrew Sheeler, a board member of the Alaska Press Club and a police, courts and city beat reporter for the Ketchikan Daily News.

Speaking for himself as an “angry reporter,” Sheeler told Poynter by phone that the measure would make it difficult for both journalists and the public to get information on cases that ended short of a conviction. The restriction would further complicate access in Alaska, Sheeler said, where courthouse records are already difficult to retrieve given the isolation of many rural communities.

Sen. Fred Dyson, a conservative Republican representing the Eagle River district, introduced the bill. Alexandra Gutierrez of APRN in Juneau reported that Dyson framed the measure as one designed to protect defendants’ privacy and due process rights. Citing state Department of Law numbers that roughly one-third of misdemeanor charges and one-fifth of felonies do not reach trial, Dyson said many defendants who are not convicted are unfairly affected by open criminal records when applying for jobs or an apartment.

Poynter asked for further comment from Dyson and will update this story if he responds.

One senator, Democrat Hollis French, voted alone against the measure, APRN reported. Given the high rate of sexual assault and domestic violence in Alaska — “crimes that are difficult to convict — the Legislature should err on the side of transparency in criminal cases,” French said.

In almost every state, the public can still access court records if they show up physically at a courthouse, said Gregg Leslie, legal defense director for the Reporters Committee for Freedom of the Press.

But state legislatures have been examining or limiting access to electronic criminal case records as concerns arise about the impact on defendants’ employment, housing and credit, he said.

When access to records is closed off, however, the public can’t learn if the legal system is working properly: why aren’t prosecutors winning convictions in sexual assault cases? Are particular repeat offenders getting off because of flaws in law enforcement investigations? What other patterns can be seen from criminal cases that don’t result in conviction?

Since defendants’ rights can be jeopardized if information is misinterpreted, having open access to criminal case records does require trust in the public, Leslie said.

“It becomes tricky, but you really have to allow as much access to this information with the assumption that most people will know that you are not necessarily guilty if brought into court,” Leslie said.

The public, he adds, usually gets it right.

(Disclosure: RCFP is working with Poynter on a series of columns on legal issues affecting journalists.)

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