Examining Privacy Rights in Family Court
In Massachusetts almost all court documents are public records. They can be found on the MassCourts website which is a free, comprehensive public database of all Massachusetts court documents. On there users can search for civil and criminal court documents, such as motions filed, witness affidavits, pre-trial memos, trial dates, and attorney information. Public access does include divorce and custody proceedings, raising major concerns of privacy.
Massachusetts Family Law and Public Records
Public records have existed in the Commonwealth of Massachusetts since 1851. Every government record in Massachusetts is presumed to be public unless it’s under a specifically stated exemption. Most exemptions are rooted in those that disclose financial and social security information, contact information, and unwarranted personal information (A full list of Family and Probate Court exemptions are listed here). Noticeably, when one accesses cases on the MassCourt database, reports by Guardian ad Litem (GAL) and Department of Children and Families are inaccessible. A GAL is a court-appointed professional to participate in court proceedings on behalf of a minor child. A GAL conducts interviews and files a report with recommendations in the best interest of the child. DCF becomes involved in a case when they receive a report of child abuse from a mandated reporter. They are required to evaluate the allegations and determine the safety of the children. Under Probate and Family Court Standing Order 2-08, all GAL reports are to be impounded to protect sensitive personal information, including child psychological evaluations and family interviews.
Interestingly, the Court recognizes there is some level of danger in the public having access to children’s interior lives, but this does not seem to extend redacting all other documents to exclude personal details. One can read detailed accounts about child abuse, children’s medical and education needs through parents’ affidavits and motions for temporary orders. Of course, some of this information is important for the judge to make equitable and fair judgments in the best interest of the child, however why the Court allows these details to become public records seems unclear. More importantly, there is very little research as to how this potentially affects a child in adulthood. Divorce is already an emotional and damaging experience for a child; their privacy should not have to be of main concern.
How Privacy Rights Have Evolved in the Supreme Court
Although the US Constitution does not recognize the right of people to access government records, this issue has been a highly discussed topic amongst legal scholars. Some believe the right to public records derives from common law and was a foundational principle of our Founding Fathers’ version of an open government. As James Madison once wrote to W.T. Barry, “A popular government without popular information or the means of acquiring it is but a prologue to a farce or a tragedy, or perhaps both.” Many believe the right of the people to have public access to court documents is enshrined in the First Amendment’s freedom of press clause.
Throughout time, this issue has been brought to the Federal and States’ Supreme Courts on various occasions. Starting with, In re Casewell (1893), which found that divorce proceedings shall remain private. For 99 years after this, divorce proceedings were kept private and devoid of public interest, meaning the public has no inherent right to access. In the case Katz v. Katz (1986), the Pennsylvania Supreme Court found “While the public has a right to know that its courts of justice are fairly carrying out their judicial functions, no legitimate purpose can be served by broadcasting the intimate details of a soured marital relationship.” However, two years later, a Florida Supreme Court case eschewed privacy rights in favor of First Amendment rights. In Barron v. Florida Freedom Newspapers (1988), the Court found “The parties seeking a dissolution of their marriage are not entitled to a private court proceeding just because they are required to utilize the judicial system.” Thus, they set a trend in case law from then onwards in most places across the country for divorce proceedings to be open to the public.
Public Record Protects Children in Family Court
Although public access has widely been the norm for the last 40 years for divorce proceedings, legal scholars still debate its costs and benefits. Proponents of public access put forth that public scrutiny allows for judicial transparency. While there is recognition that a parent-child relationship comes under scrutiny by the court, as children’s psychological profiles can be used to embarrass or threaten the child this is not enough to sway some debaters.
Scholars argue that public access protects children from falling victim to the “master narrative” that characterizes child welfare. The public’s perception that shapes the collective narrative of child welfare depicts parents as monstrous beings who purposefully abuse their children. When, in reality, most children in foster care experience neglect due to financial insecurity. This narrative can rationalize rushed, inaccurate decisions for case workers between cases. Shielding access from child custody cases does not allow the public to hold judges and child welfare professionals accountable for making the best decision for the child. Open access can also allow media coverage to widely expose poor policy and call for institutional reforms that better protect children.
Concerns about Digital Records
However, a major concern is raised as the legal world grows more digital. As more court records start to appear in online databases, there is a rising concern about data mining. Large companies may use data-mining bots to gain a competitive advantage in the commercial environment. They accomplish this by extracting information from existing data sets, such as from online public records, and use this information to identify trends and behaviors. Sifting through large amounts of data was nearly impossible before the computer; now companies use complex algorithms to process data from a multitude of sources. Thinking of AI’s capacity to gather and analyze large amounts of data at once, information that comes from local government public records raises major concerns of privacy. Those who benefit from bulk collections of public records include commercial stakeholders, such as data brokers, because they extract knowledge that is attractive to other stakeholders in various sectors.
Conclusion
As we weigh the pros and cons of keeping proceedings public record, it’s important to note that you remain in control. As a litigant, you will work closely with your attorney, to provide the Court enough information while maintaining your autonomy. So, although this may at first seem concerning, in the end, you decide what is submitted to the Court.