PUBLIC RECORDS AREN'T PUBLIC: SYSTEMIC BARRIERS TO MEASURING COURT FUNCTIONING & EQUITY.

• Author: Albrecht, Kat

INTRODUCTION 2 I. DATA RIGHTS VS. DATA ACCESS 5 A. Legal Rights to Public Data 5 B. Realities of Public Data Access 6 II. COURT TRANSCRIPTS AS PUBLIC DATA 12 A. Case Study: Cook County, Illinois 12 B. Current Limitations to Knowledge Due to Transcript Inaccessibility 16 1. Court Functioning 16 2. Access and Equity Issues 20 III. AUDIT OF U.S. TRANSCRIPT AVAILABILITY 23 A. Methodology 24 B. Results 25 1. Missingness 25 2. Procedural Variation in a Legally Identical Process 27 3. Financial Burdens and Outdated Processes 28 4. Expert Knowledge Requirements 30 C. Discussion 32 CONCLUSION 33 INTRODUCTION

The nascent field of computational law has grown dramatically in recent decades, with an interdisciplinary universe of scholars tackling a variety of theoretical and empirical projects that consider both law-as-code and law-as-data. Law professors Frankenreiter and Livermore name and distinguish these two trends in computational legal analysis as the project of modeling law as a set of rules (law-as-code) versus the project of extracting information from legal text to apply to other research problems (law-as-data). (1) Here, we focus more specifically on applications of law-as-data, but more generally argue that there is a system-level problem constraining both types of legal analysis that has yet to be dealt with.

Previously, large-scale computational legal analytics faced significant limitations in computational efficiency, cost of computing resources, and data availability. However, today, the current climate of technological, scientific, and methodological innovations have made it uniquely viable to study law computationally. (2) Importantly, this digital era has brought with it massive increases in digital data storage and the increased attentions of social and legal scholars who endeavor to specifically harness that data using innovative computational techniques. (3) Consequently, a substantial amount of computational legal analysis has been undertaken in a short time. This work includes projects to obtain mass-scale legal source data, create new crosswalks of large institutional legal data, and analyze the substance of that legal data. (4)

At the same time as this rise of computational legal studies, various courts have publicly announced their intention to make their data more public and transparent, particularly concerning criminal courts and felony case processing. In 2018, Florida announced a new public data portal that would track criminal defendants through the system with the intention of identifying inequities. (5) In 2021, the Ohio Criminal Sentencing Commission unveiled the Ohio Sentencing Data Platform in order to collect and share data about sentencing for felony cases. (6) In Cook County, Illinois, home to Chicago and one of the largest felony criminal courts in the country, the State's Attorney's Office has recently announced a commitment to data transparency and released a substantial amount of criminal data via the Cook County State's Attorney Open Data Portal (CCODP). (7) Through this portal, any member of the public can download and access datasets on felony case initiation, intake, diversion, disposition, and sentencing for all cases processed in Cook County Courts. Such initiatives paint a rosy picture--a picture where public data access seems to have opened up at the same time as technology has coalesced to make meaning of that data on a larger scale.

However, we argue that these initiatives have not been sufficient principally because they do not attempt to reimagine the contours of what public data actually is. These data portals have limited types of data available and leave significant gaps. Critical sources of dynamic data that are already legally public continue to be de facto inaccessible to the public. Consequently, we argue that a critical bottleneck in both public access to data and computational legal analysis continues to be a practical barrier to access that the courts have not alleviated. This is particularly acute surrounding particular types of public data.

In this Article, we look at one particularly rich and promising source of already legally public criminal data--criminal jury trial transcripts. We begin ewith a review of the legal limitations to public data access and with a discussion of what data is, practically speaking, public. We consider the current system of data access under a managerialized rights framework, where laypeople are required to take unjustifiably onerous steps to enact their rights. We then turn specifically to court transcripts as a rich data source demonstrating how courts generate and reify inequality, though these capacities of transcript data remain obscured by their inaccessibility. We then conduct an exploratory audit of court transcript data procurement policies across over 3,000 U.S. counties and draw thematic conclusions about de facto barriers to public access. We conclude with a discussion of how courts' approaches to public data need to change in the future, particularly in ways that lessen the burden on the public to access records they are legally entitled to.

1. DATA RIGHTS VS. DATA ACCESS

   1. LEGAL RIGHTS TO PUBLIC DATA

      In the United States, the public has a right to access court proceedings and court records. (8) In Nixon v. Warner Communications, the Supreme Court affirmed this right, stating, "[T]he courts of this country recognize a general right to inspect and copy public records and documents, including judicial records and documents." (9) These rights have been reified consistently in courts across the country in the intervening decades. In the landmark case on the issue, Richmond Newspapers v. Virginia, the Supreme Court asserted that the First Amendment gives the public a constitutional right of access to criminal trials. (10) This was affirmed in Globe Newspaper Company v. Superior Court.. (11) Both cases focused specifically on trial attendance rather than records, but despite this focus, cases citing these decisions quickly expanded their focus to right to access and examine court records. Notably, Associated Press v. District Court held that the First Amendment required the court to provide pretrial records. (12) This is not to say that courts did not present any curtailing of these rights to access. Indeed, courts specified that lower courts had considerable discretion and advisory power over their own files and records. (13) This string of decisions, and debates surrounding the First Amendment continue to be brought before courts in the present day, as legal questions surrounding access to electronic court records in particular have become more pressing. (14)

   2. REALITIES OF PUBLIC DATA ACCESS

      These legal protections for public access to criminal court data are staunchly juxtaposed with the realities of public data access. We must differentiate two types of public data to fully understand this dichotomy--de jure public data and de facto public data. Here, we define de jure public data as data that is legally public. In keeping with the precedential cases described above, vast swaths of criminal court data are de jure public data. The Administrative Office of the United States Courts has clarified that there are some limitations to this overall legality; for instance, there are some situations in which data that would normally be public can legally be kept from the public. They described the contours of these situations, saying,

      In certain circumstances, judges have the authority to seal additional documents or to close hearings that ordinarily would be public. Reasons can include protecting victims and cooperating informants and avoiding the release of information that might compromise an ongoing criminal investigation or a defendant's due process rights. (15) This description further indicates that most criminal court data is not occasionally public, but rather ordinarily or presumptively public. In this Article, we are not substantially concerned with the limited pool of data that is defensibly and legally considered not public. (16) This is a very small pool with exceptional constraints, and to be overly focused on it at this analytic juncture would dismiss the larger systemic problem. (17) Instead, we are intentionally interested in data that is ordinarily public. Even though this data is de jure public, and its status is not technically fraught in any way, that does not mean it is practically possible for laypeople or researchers to obtain. It is worth noting that the case law begins to establish the contours of the right to access public records insofar as what documents and events are public and theoretically accessible but does not specify the mechanism through which that right can be enacted. Indeed, we argue that much of the data legally defined as public data is de facto nonpublic data because of substantial barriers to access. In this way, we differentiate between public data and publicly accessible data by considering what these barriers to access are and how those barriers themselves contribute to enduring cycles of inequality in U.S. courtrooms.

      We are not the first scholars to question the veracity and practicality of the term 'public record.' Particularly in the context of the tension between data privacy and data transparency, scholars have asked how public these public records really are for over two decades. (18) We extend this body of work by contemplating public data access using a framework of managerialized rights. Popular in studies of employment and, more recently, Title IX policy, the managerialization of rights requires individuals to act on their own accord to secure protection of their rights from a larger institution. (19) This is because the rights exist but are not formally mechanized or handled by the grantor of the rights. As a result, the grantee must manage them. In this way, protection or enactment of individual rights becomes a significant burden for the claimant...