Trial lawyers and journalists are concerned about proposed new rules to govern access to court records in Arkansas, and it appears their objec-tions will cause at least one change in the proposal.
A task force created by the Arkansas Supreme Court’s technology committee has been at work for some time on the proposed new rules. The task force includes lawyers, public officials, the executive director of the Arkansas Press Association, court administrators and a law professor.
Chief Justice Jim Hannah said that other states also were revising their rules on access to court records. The impetus for revision came from the increasing placement of court records on the Internet, he said. There is fear of identity theft and invasion of privacy if everyone has elec-tronic access to all court records, he said. The proposed new rules provide specific protection for things like Social Security numbers, PINs and tax returns.
But at a public hearing at the Justice Building May 26, trial lawyers argued that the proposal went too far, and would shield material that should be available to the public. The loudest complaints were about a provision that says “exhibits offered at trial, regardless whether admitted into evi-dence” will be excluded from public access unless a judge issues an order to the contrary.
John Belew of Batesville, president of the Arkansas Trial Lawyers Association, said that exhibits in one case could be of great interest to a lawyer handling a similar case. “Lawyers are always looking for cases where other lawyers have gone down the same road,” he said. Conversely, defendants always want to conceal evidence of their bad intentions, he said. He used as an example the internal memoranda of a drug manufacturer that had issued products it knew to be defective.
Rick Peltz is a task force member who teaches at the William H. Bowen School of Law at UALR and is an authority on freedom of information law. He said that the shielding of exhibits from public access was a mistake that would be corrected before the task force submitted the proposed new rules to the Supreme Court. The Court will make the final decision on adoption of the rules.
Peltz is also a member of the Arkansas Freedom of Information Coalition, a loose-knit group composed mostly of journalists. He delivered a letter to the task force from the Coalition, asking for more time to study the proposed rules. The trial lawyers also wanted more time for study. The task force decided to meet again at 1 p.m. July 1 in Room 101 of the Justice Building. John Stewart, a member of the task force and deputy director of the state Administrative Office of the Courts, said that ATLA and the FOI Coalition should submit written comments before that date. The task force will make its recommendation to the Supreme Court at the July 1 meeting, he said.
Bobby McDaniel of Jonesboro, a trial lawyer, was not at the public hearing, but he has been outspoken in opposition to the proposed rules, which he says are not needed and will deny the public knowledge of what is happening in its own courts. In a telephone interview, McDaniel said that ATLA was “myopic” in focusing only on the provision regarding exhibits.
But Peltz said that McDaniel’s interpretation of the proposed rules was wrong. Once the provision regarding exhibits is changed, the overall effect of the rules will be to make court records more open, Peltz said, because the rules will set out precisely that certain information is open to public inspection. Much court information now is open or closed only on the whim of judges and clerks, he said.