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Public Comments Support Expanded Online Access to Records at D.C. Court of Appeals

Fritz Mulhauser | May 11, 2021 | Last modified: May 12, 2021

Recently the D.C. Open Government Coalition hoped to review an appeal in progress in D.C.’s highest court, to weigh possible assistance with a friend-of-the-court brief. No button in the online list of pending cases allowed clicking to read or download the briefs electronically, unlike in D.C. Superior Court or federal courts elsewhere in town.

Impossible as well was the classic route of access—reading the file at the courthouse, just as Atticus Finch (attorney hero of To Kill A Mockingbird) would have done in fictional Maycomb, Alabama, in the Depression. The handsomely renovated 1820s building, the former D.C. City Hall on E Street, N.W., is usually a treat to visit but now off limits; the judges hear cases online and offices have been shuttered for months during the pandemic emergency.

Fortunately, we knew an electronic address for the court clerk’s office. A helpful courthouse worker with his own remote access to the court database (where all papers are now filed electronically) sent the briefs as email attachments. The kindness of staff is most welcome—though that’s a pandemic workaround, not a new normal.   

But 21st century electronic access for all may come to pass if the court’s judges and administrators act on a remarkable recent outpouring of public views.   

The court’s February request for comments yielded 60 pages of unanimous recommendations from a who’s who of D.C. nonprofits (including the Coalition), government agencies, lawyers in private practice and members of the public. The full set obtained by the Coalition includes comments of the Access to Justice Commission, Public Defender Service, Solicitor General, Legal Aid Society, Council for Court Excellence, Network for Victim Recovery, and Reporters Committee for Freedom of the Press as well as a half-dozen individual attorneys.

Some noted the long history of Supreme Court decisions assuring the public can see justice at work—through open files just as much as open courtrooms.

Others noted remote electronic access is a proven technology not a risky novelty. They recalled federal court managers raising anxious questions 20 years ago about the first proposals for online access, and how those have been long settled. The federal courts’ PACER system handled over 520 million requests last year, a practical demonstration of its feasibility and usefulness, copied by access systems in many other state courts. It’s safe to say the public expects free access to easily searchable information, without need of registration.

Useful cautions included reminders that crime victims have protections in law so that records eliminate all personal details that could be used to hurt them again. Regular users urged that both levels of D.C. courts (and agencies) agree on a consistent list of such sensitive data elements, to be enforced on all those filing court papers.     

Courts typically manage their affairs through rules and orders developed in internal discussion. But as the court takes on the new role of publisher of information to meet public demand, commenters recommended designing for the best “user experience” by convening an ongoing advisory panel of the legal community, tech experts and the public.

The court has not announced next steps.