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Montana Supreme Court: Access To Custody Docs Restricted?

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HELENA, Mont. — The Montana Supreme Court is considering restrictions to public access of certain information now available throughout the court system, including a proposal to seal all documents filed in family law cases except for final orders.

Freedom of information advocates say the proposals are unnecessary and would run counter to the right-to-know provisions in the state constitution.

The Supreme Court put the recommendations out for public comment on Dec. 7. The comment period will last for 90 days.

State Law Librarian Judith Meadows, one of the authors of the proposals, said a change is needed because the court system's existing privacy rules aren't being applied evenly and people not represented by lawyers don't understand them.

That means sensitive information about children involved a custody dispute, divorce or another court proceeding could find its way to the Internet, where it could be gathered by child predators or be used to bully a child, Meadows said.

"We're trying to keep the horse in the barn before the door is opened," Meadows said.

Technological advances over the past decade have created greater access to court information than ever before, she said.

"The problem is, the rules need changing to catch up with the technology," she added.

The court system's privacy rules were created by a Supreme Court-appointed Privacy and Access Task Force and approved by the high court in 2007. The rules were adopted in anticipation that all records from district courts down to justice courts would one day be available on the Internet.

That has not happened yet, though state Supreme Court dockets and decisions are available online.

One of the members of that task force, Ian Marquand, said the new recommendations go far beyond the group's work, which had the same goal to protect litigants while balancing the public's right to know.

"To my eyes, this would create a secret part of our justice system in Montana," Marquand said. "To take an entire class of litigation and essentially lock it away, that's a big step. That's something I think we need to consider very, very carefully."

Marquand, the chairman of Montana's Freedom of Information Hotline and president of the state's chapter of the Society of Professional Journalists, said the task force should reconvene to discuss the proposals.

Mike Meloy, a Helena attorney who specializes in freedom of information issues, said he considered the proposals unnecessary because there has been no outcry to change the existing privacy rules.

"If it ain't broke, don't fix it," Meloy said. "I don't see any evidence that there has been a significant problem with information from the courts on the Internet or otherwise."

There are three alternatives in the recommendations by Meadows and co-authored by Elaine Dahl of Montana Legal Services. One, dubbed "Version B," would restrict access to all documents filed in family law court, except for final rulings. There would be several exceptions to which final rulings that would be published.

Meadows said individuals or the media could still petition a judge for access to the closed information. But, Meloy countered, there would be no way to foretell that a matter of public interest was about to be closed.

Another alternative, "Version A," would redefine and add to the information that can be excluded from court documents, such as children's names, dates of birth and complete Social Security numbers.

It would also require that a "sensitive data sheet" be filed in each case, an index that would contain all the sensitive information barred from the court documents and only accessible to the court and those who enforce the court's decision.

The third alternative would suspend all or part of the privacy rules until the court adopts an integrated e-filing system, which isn't likely to happen for a couple of years.

Implementing the third alternative would prevent court records from being filed online, and Meadows and Marquand both said they didn't think that was likely to pass.

Meloy said he believes Version B had the best chance of being approved.

"That's the more likely one," he said. "Unfortunately, that's really the worse of the two options because it absolutely closes things down."

Marquand said the state constitution is very clear in that the public's right to know is paramount unless the individual's right to privacy clearly exceeds that right to know. The task force's rules took the best approach to balance that, he said.

But Meadows, who was also a member of the task force, said she questioned whether the constitutional right to know applied outside of government.

"Does that mean the right to know what your neighbors are doing in their back yard? Is that really covered by the constitution? I don't think so. But it will be up to the court to decide," she said.