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Court record confidentiality bill too broad, Alaskans right to know too great

Sean Parnell
OPINION: Gov. Sean Parnell argues that if he hadn't vetoed Senate Bill 108, it would have concealed too many court records, put Alaskans at risk, and diminished the public's ability to hold members of the justice system accountable. Pictured: Gov. Parnell delivering the keynote address at the Pacific NorthWest Economic Region Summit, in Anchorage July 16, 2013. Loren Holmes photo

Had I let Senate Bill 108 become law, it would have swept too many court records under a shroud of secrecy, putting more Alaskans at risk of harm. The legislation also would have diminished Alaskans’ ability to hold prosecutors, defenders, and judges accountable for their actions, and it would have led to an incomplete historical record and false conclusions, because facts are more easily manipulated when only part of the story is in the public record.

SB 108 attempted to solve a complex issue: striking a balance between open and transparent criminal court proceedings, the rights of victims, and the rights of persons who have been accused, but never convicted, of a crime.

I understand the goal of the bill -- protecting those acquitted of a crime by making confidential the records pertaining to their case. An arrest isn’t a conviction and carries with it a social stigma that can be extremely harmful to those who have to carry it. Unfortunately, the bill was like a meat ax when a more targeted or nuanced approach was needed. The legislation summarily swept all such cases under the cloak of confidentiality in an unnecessarily broad manner without respect to likely adverse impacts on other individuals or the public, both in terms of public safety and transparency.

In reviewing the bill, I considered not just the perspective of the accused, but the rights of victims and the rights of all other Alaskans. These Alaskans include members of the public outside the criminal proceeding and generations to come who review and rely on accurate historical information in the public record.

For centuries, our country and the states have protected public access to criminal court documents and proceedings because public confidence in the fairness, trustworthiness, and impartiality of our judicial system depends on the public's ability to observe court proceedings and access records of those proceedings.

Many U.S. constitutional protections combine to form what is characterized in the Alaska legislative process as the public’s right to know.

The public’s right to know what happens in earlier criminal proceedings is based on a person’s right to be fully informed so as to protect him or herself or family members from harm, and to improve individual decision-making.

Consider the parent who wants to check the background of a potential daycare provider. Just because a prosecutor failed to prove beyond a reasonable doubt that a person should be convicted of a crime related to child abuse, doesn’t mean that parents outside the proceeding should be left in the dark about that court process. At the very least, parents should have access to court information so they can pursue a more informed choice, one with protection of their child in mind.

The public’s right to know what happened in a past criminal proceeding is also important for reasons of government accountability. How else would we discover past prosecutor, defense counsel, or judge misconduct in one trial or a series of trials?

Additionally, if court records of trials are made confidential after a “not guilty” finding, the historical record available to the public will be only what was recorded in newspaper accounts at the time of trial. An incomplete record is worse than no record, in some instances, because without a complete record (both press reports and court records), the truth can fall victim to the manipulation of an incomplete set of facts. Without the context of statements made in the criminal court records, incomplete press reports become the only historical record future generations will have to rely upon.

On the other hand, lawmakers heard compelling testimony from individuals who had been arrested, but were never charged with a crime, or who had been subject to retaliatory, baseless requests for protective orders against them. These individuals’ names appear on the Alaska Court System's easily searchable electronic public index, CourtView, adversely affecting their reputation.

After the legislation was introduced, the Alaska Court System took steps to address some of the concerns raised. Indeed, the court system, to its credit, took a more finely tuned or targeted approach to the issues that SB 108 used a meat cleaver to address. Court rules were adopted to better protect Alaskans’ privacy and the reputational interests of persons arrested but not charged; persons charged but whose counts are dismissed for lack of probable cause; persons who are misidentified; minors who were wrongly charged in adult court; and persons who have requests for protective orders filed against them that are dismissed at or before the initial hearing on an ex parte petition for lack of probable cause or insufficient evidence.

In other words, the privacy and reputational interests of people charged but never convicted of a crime are better protected now because of the new court rule than was the case when SB 108 was introduced.

Alaska residents will no longer have their names on an easily searchable public database due to a minor brush with the law that resulted in no charges, or where a person is the target of baseless requests for a protective order by a disgruntled ex-partner.

Our administration and others tried to work with Sen. Dyson’s office on more amendments to the bill to strike a better balance of Alaskans’ interests, but those amendment attempts were rebuffed, apparently because the votes were there to pass the legislation without further amendment. I indicated in my formal veto message that I was willing to go further than the court rule in protecting the reputations of those accused but never convicted, but I could not go as far as the broad, sweeping approach of SB 108. For these reasons, I vetoed SB 108 with an open mind to later considering more targeted approaches to dealing with these issues, while adequately protecting the interests of all Alaskans.

Sean Parnell has served as Alaska's governor since 2009.

The views expressed here are the writer's own and are not necessarily endorsed by Alaska Dispatch News, which welcomes a broad range of viewpoints. To submit a piece for consideration, email commentary(at)alaskadispatch.com.