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PUBLIC RECORDS, PRIVATE LIVES
Kobe Bryant's Accuser, Internet Victim


The New York Times
Sunday, August 15, 2004
Adam Liptak


Those who are curious about the rape case against Kobe Bryant, the basketball superstar, need only click on a couple of links on the Web site of the Colorado court system to see hundred of legal filings.

But litigants who are appearing before a federal judge have a much harder time if they want to find out whether the jurist has a conflict of interest. According to a new report by the Government Accountability Office, they must submit a request in writing; swear under oath that they will not use the information unlawfully or for a commercial purpose; pay a copying fee; and wait an average of 90 days before the documents are mailed to them.

They will not find the documents on the Internet, unless someone who has gone to the trouble of getting the physical documents posts them. Indeed, the G.A.O. says its own report is too sensitive to post on the Internet, although the agency will respond to individual requests for it.

Both kinds of documents are public records, required by law to be available to anyone who asks. But the two approaches demonstrate that "public" can mean different things. And it is not easy to explain those differences, except perhaps by the power judges wield. The same technology is available in both cases, and similar security and privacy concerns are present as well.

In Colorado, prosecutors and lawyers for Mr. Bryant's accuser say that public access there has been too easy, playing a role in the near-disintegration of the case against him. Critics of the process for obtaining judges' financial disclosure forms say it is much too hard, discouraging legitimate scrutiny of the conduct of government officials.

"Some personal information should not be available at all," said Douglas T. Kendall, the executive director of Community Rights Counsel, a public interest law firm. "But information about what stocks a judge owns should be utterly public."

With the explosion of official information available on the Internet, including filings in custody, bankruptcy and criminal cases, some legal scholars are saying that it has become too easy to learn things about one's neighbors. They say there is a value to an occasional speed bump on the information superhighway and to what the Supreme Court has called the "practical obscurity" of some sorts of information that is simultaneously public and sensitive.

"Public records law shouldn't be a government-assisted privacy violation," said Daniel J. Solove, a George Washington University law professor.

Others say that public scrutiny of all of the workings of government is enhanced by ready access to all of its records.

"Public means public, and we have arrived in a world in which documents and electronic files are indistinguishable," said Susan P. Crawford, an expert in Internet law at Cardozo Law School. "It is too late to artificially introduce friction into the searchability of these files."

A great deal of sensitive and potentially embarrassing information is filed in court every day. Some of it is meant to be sealed, in both paper and electronic form. Mistakes happen in both mediums, but the speed and reach of the Internet can amplify them.

In the Bryant case, court clerks have twice posted the name of Mr. Bryant's accuser, notwithstanding a court order to keep it secret. In addition, a court clerk mistakenly e-mailed a transcript of a secret hearing to seven news organizations, including testimony from a defense expert that suggested the woman had sex with another man soon after her encounter with Mr. Bryant. After a battle that reached the Supreme Court, almost the entire transcript was made public.

Lawyers for Mr. Bryant's accuser say the mistakes have endangered her, done harm to her mental well-being, undermined her willingness to pursue the case and will discourage others from coming forward with allegations of sexual assault. Last month, they asked the judge in the case to stop posting court documents on the Web site.

John C. Clune, a lawyer for the accuser, said last month that reporters should be required to get documents the old-fashioned way. "The media can approach the window at the Eagle County Justice Center," he wrote, "and make their request."

News organizations, including The New York Times, opposed that suggestion, saying their constitutional right to "contemporaneous access" would be violated by the delays "that would inevitably result from having competing members of the press lined up in front of the clerk's window to await hard-copy printouts."

In a decision released Monday, Judge W. Terry Ruckriegle, of Eagle County District Court, said there was no going back. He said the Web site handles an average of 712 document requests in the Bryant case every business day and that the clerk's office would be overwhelmed if it had to respond to those requests at the courthouse.

Federal judges have a different view, at least when it comes to data about their own financial affairs. They say that disclosure of some information could endanger them or subject them to identity theft.

Before the Internet era, the Supreme Court anticipated the issue of whether requiring a little work to get sensitive information might be warranted. The court upheld the government's refusal to disclose F.B.I. arrest records compiled from publicly available but hard-to-find information.

"Plainly there is a vast difference," Justice John Paul Stevens wrote in 1989, "between the public records that might be found after a diligent search of courthouse files, county archives and local police stations throughout the country and a computerized summary located in a single clearinghouse of information."

 

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