Proposed new rules governing access to court records in Arkansas could give judges even more power than they now have to withhold information from the public, according to a law professor and freedom-of-information expert.
Rick Peltz of Little Rock, a member of the Arkansas Supreme Court task force considering the proposed rules, expressed his concerns in an e-mail to other members of the task force. Peltz, who normally teaches at the William H. Bowen Law School at the University of Arkansas at Little Rock, said he would be unable to attend the next task force meeting Feb. 17 because he’s spending this semester at Catholic University in Washington. The task force hopes to adopt its proposed rules at the Feb. 17 meeting, which will begin at 8:30 a.m. in room 101 of the state Justice Building. Peltz’s absence could be a blow to those, such as journalists and trial lawyers, who want to prevent any new restrictions on access to court records. Of task force members, he has been the primary advocate for openness.
Peltz said he was concerned about proposals made by the Judicial Council, which represents the judges, and he thought his concern might be shared by the Arkansas Trial Lawyers Association (ATLA) and the media. One of the Judicial Council’s proposed rules says that “Public access to exhibits shall be granted at the discretion of the court.”
Judges largely have discretion to grant or deny access to exhibits now, but Peltz said the common law imposed some limits on a judge’s authority.
“My guess is that the judges … intended … only to clarify that the proposed rule changes nothing as to exhibits, and judges continue to exercise common law discretion,” Peltz wrote. “However, I fear the proposal could be read as broader in effect, as it purports to invest the judges with discretion, arguably to the exclusion of the common law, which is not without bounds. Thus where the common law might require, upon balance, disclosure, a judge might claim that the policy vests him or her with the absolute authority to disclose or not to disclose, without even stating a reason.”
“If my guess is right and the latter horrible is not what the Council intended, then there needs to be some clarification of the continued pertinence of the common law. I could probably live with clarification … that the provision means only to preserve the common law treatment of exhibits, whether the common law would require disclosure or non-disclosure — as long as that clarification was clear and plain. But ATLA and the media might understandably desire more.”
And ATLA and the media might not be as tactful as Peltz in dealing with the Judicial Council’s proposals. If so, what has already been a long process of drafting proposed new rules could stretch out even further. When and if the task force does approve rules, the rules will be submitted to the Supreme Court Committee on Automation (which will meet at 10 a.m. Feb. 17). The Supreme Court itself will make the final decision on the rules.
All of the states are revising their rules on access to court records because of the impact of the Internet. Records that once were accessible only at the courthouse can now be placed online and made accessible to anyone anywhere.