Eviction Record Sealing Legislation Needs to Assure Public Access — Coalition Tells D.C. Council

Fritz Mulhauser | November 15, 2020 | Last modified: November 17, 2020

Legislation to help renters is gaining traction in the D.C. Council but includes court record-sealing provisions that could end the kind of research that brings tenant problems to light. Since D.C. courts are not covered by any laws providing public access to records, the Open Government Coalition has asked in a new statement that permanent legislation assure such access for research and journalism. A long history of constitutional and other legal protections make court records public.

Obvious stress on renters in the months of the pandemic has driven eviction moratoriums — in the first congressional pandemic legislation, the CARES Act; in a federal public health rule limiting evictions as health risks; and similar action in many cities and states like the current D.C. eviction moratorium.  

The D.C. Council October 6 enacted new emergency and temporary rules to better protect tenants’ rights in multiple aspects of D.C. rental housing. Revisions to rent control are also on the Council agenda.

In the legislative flurry, one provision of the fine print will erase all court records of eviction cases, some quickly, and all after a few years. A permanent bill to do the same was the subject of a Council hearing October 30.

Record sealing is an understandable response to problems. Georgetown researchers told the virtual hearing that their study of five years of D.C. court records showed even the record of an eviction filing affects many. (Their statement is here.)

Eviction is rare, according to the study. Only a handful of the 30,000 cases filed each year result in a court judgment leading to forced removal of a tenant. Most cases are filed to put pressure on tenants to pay up back rent (typically for modest sums–50 percent for amounts under $1,000) and are quickly settled with a payment agreement and dismissed.

But online court records live on, with all nuance left behind. As half the nation’s 40+ million rentals turn over each year, landlords needing to evaluate a flood of applicants turn to data brokers who vacuum up online traces of past court filings, typically ignoring key details such as proper name match and how the thousands of cases are actually resolved.

And in their testimony the researchers reported “landlords make little distinction between an eviction filing and an executed eviction when screening tenants. Having either type of eviction record is a top reason cited by landlords for turning a prospective tenant away.”

Background check errors and mistaken decisions that result are widely discussed and legislation to address both data companies and data users are works in progress. 

Meanwhile, the quickest available solution is to erase the history so it can’t be misused.

The Coalition testimony emphasized that record sealing threatens major collateral harm, as it would cut off access for valuable research. The Georgetown work would have been impossible, or the remarkable recent dcist reporting by Josh Kaplan on widespread false affidavits of service, cited by Council members advocating new documentation requirements included the emergency D.C. law. 

Record sealing would prevent research like that relied upon by the Council.

The short-term bills allow unsealing but only if a judge agrees there is a “compelling need.” That term implies weighing some particular situation, say in a new case where papers from the sealed case are urgently needed as evidence. That doesn’t cover policy studies such as the Georgetown effort (whose authors noted the legislation must “explicitly enable researchers to access the data”) or investigative reporting. The “compelling need” standard is not defined but uses elsewhere in law suggest it’s a high bar. And the permanent bill doesn’t address unsealing at all. This must change.

Since D.C. courts are not covered by any D.C. or federal public records access laws, the Coalition statement stressed the Council must provide clear authority for access for research that is in the public interest.

Court records are the raw data for analysis of many significant topics in society, not only how that branch of government does its work adjudicating specific disputes but underlying issues of economic and social justice. The pending bill should recognize this by allowing public access under proper safeguards.

No further action is scheduled on the record sealing bill that is pending before the Housing and Government Operations Committees of the D.C. Council. Time is probably too short for markup and two readings before the session ends in December. The bill would need to be reintroduced in 2021 when a new Council begins and one of the committees will have new leadership.

If you would like to join our advocacy for public access to court records, let us know at info@dcogc.org.