Courts respond differently to new Missouri law

St. Louis Daily Record & St. Louis Countian, Jan 11, 2008 by Kelly Wiese

A new state law that closes parts of certain court records has St. Louis and state court officials struggling with how to comply.

The law requires courts to close certain information that could identify a victim of domestic violence, rape, sexual assault or stalking. The provision was part of a larger bill passed last year that provides greater protection to victims of sex crimes and domestic violence.

Judges in the St. Louis Circuit Court discussed the issue during a recent court en banc meeting and said their clerks were worried about what must be done to follow the law and which types of cases are covered.

Some expressed concern about the time and resources necessary to comply. Judge Lisa Van Amburg said legislators didn't think about what the law would cost to implement when they passed it.

"It's sort of in the nature of an unfunded mandate," she said.

Judge Julian Bush said responding to the law is a statewide issue. He hopes the Supreme Court will provide some guidance, but said in the meantime the circuit court must know what to tell employees. The court agreed to have a committee study the issue and recommend needed steps.

A Supreme Court spokeswoman said there are no formal Supreme Court rules on the topic yet either.

Circuit Judge Deborah Daniels, in the Boone and Callaway County circuit, is part of the state rules committee studying the issue. At this point, she said, there are more questions than answers.

She also agreed it could take significant time and money for someone to go through transcripts searching for identifying information.

"If we're charging somebody with reading every piece of paper that goes through the court system, it strikes me as an expensive proposition when done after the fact with no time limitation for when you start," she said.

Colleen Coble, chief executive officer of the Missouri Coalition Against Domestic and Sexual Violence, said the change in law was necessary to keep from losing some federal funding. She also said she hasn't heard many concerns, but understands that handling old case files will be a large task.

"As with any new law the implementation is always the most difficult," she said. "The biggest amount of concern is for those who are thinking: 'What about all the previous cases?' From here on I think it's a new system and new practices for information management."

Among the questions are exactly what crimes the law applies to, whether it covers criminal and civil cases and whether even files predating the law must be modified before being made public. There are also questions about how much of a record must be closed.

"Typically in court proceedings we close records and not information," Daniels said. "Certainly there is a constitutional right to have cases go forward in open court." Issues involving sexual abuse can come up even when a case is completely unrelated, such as during the jury selection process, she noted.

In her mid-Missouri circuit, Daniels said, workers were placing such files in a separate, purple folder to alert clerks who get a request where the law applies. The court also has a policy for new cases that basically instructs court reporters to consult with judges on how to write a transcript or handle other court records under the law.

Other courts said they have been in compliance since the law took effect in late August and reported no problems.

Jackson County Circuit Court said it is following guidance in the court administrator's updated handbook for clerks. Those call for not putting the victim's name in the computer filing system. With paper records, when a request comes in, the court makes a copy of the original record, removes the identifying information, copies that and then provides those copies of the redacted file to the public, assistant legal counsel Josh Bateman said. So far, the new policy has worked well, he said.

However, state Supreme Court spokeswoman Beth Riggert said the clerk's handbook provides only general information about the law, not a specific policy to follow.

St. Louis County Circuit Court also said it's following the court administrator's guidelines. Judicial administrator Paul Fox said it wasn't a big deal in criminal proceedings because prosecutors already generally had identified the victim by initials and not included a home address in the court file.

"There wasn't an issue in St. Louis County that I'm aware of," he said.

But in cases that predate the law and others that include a name, and also in civil cases, the court is now blacking out that information as required.

In the city of St. Louis, Van Amburg suggested a judge order the sealing of a victim's name within a file -- with the ruling applying throughout the case -- and referring to the person generically.

"I don't think we have the resources to go through a transcript and Wite-Out every reference," she said.

St. Louis Circuit Clerk Mariano Favazza said that, rather than going through many volumes of case files, a majority of which are never even requested by the

public or news media, he plans to handle requests as they are made. Blacking out every file, he said, would take a great deal of time needlessly. But he rejected the idea of closing entire files to the public. Generally, most court records are considered public documents.