Court ID rule raises public record issues
State law is clear that court records, with defined exceptions, are public records, and everyone has a right to inspect them.
While the law allows courts to ask a requester to supply name, address and phone number, and requires it on a written request, its for a simple reason: The records custodian has to be able to communicate with the requester.
A state Supreme Court rule that went into effect a couple of weeks ago adds a new and troubling wrinkle: Anyone requesting a court record, from Municipal Court up, is required to provide a “government issued ID” or “other acceptable form of identification.”
The rule appears to be in conflict with the state Inspection of Public Records Act, which governs court records and doesn’t allow denial of access to a public record for lack of an ID. Attorney General Gary King says the rule may violate IPRA, but hasn’t issued a formal opinion.
More troubling, courts can keep a log of those who request records, and the log can include a copy of the ID.
It’s up to individual courts if they want to keep a log, but since the rule’s intent is to prevent identity theft or aid investigators, the courts have to save the log. Otherwise requiring ID serves no purpose.
Problem is, the intent of the law itself is specious. According to Arthur Pepin, director of the state Administrative Office of the Courts, identity theft from court records isn’t a problem. He told the Albuquerque Journal he hadn’t heard of more than a few anecdotal cases anywhere in the state. That suggests there are no documented cases.
Yes, it could happen, but there are many, far easier ways to steal an identity than via court records. Getting a court record requires the requester to specify the case — you can’t just walk into a court records center and start pawing through case files. And, frankly, most court cases involve people whose identities aren’t worth stealing.
That’s why there are only “anecdotal cases.”
Even then, personal identifying information that could lead to identity theft — particularly Social Security numbers — is supposed to be redacted before a file is made available to the public.
Supreme Court rules encourage filers (generally attorneys) to leave out personally identifying information in documents unless it’s absolutely necessary to the case. Failure carries no penalties, sanctions or consequences, however. And court personnel are directed to provide only redacted documents on websites and in response to public requests. Again, there are no consequences for failing to comply, thus no incentive for compliance.
There are other issues with the new ID rule:
• If the court keeps a log of the IDs, the log itself might be a public record, allowing anyone to see who has been looking at a particular record, a chilling thought in certain types of cases. And, of course, the ID itself contains personally identifying information.
• There are no guidelines on implementing the rule, so decisions are left to the individual courts, including whether to keep a permanent log, creating inconsistency.
• There is no definition of “acceptable form of identification” — that too is left up to the individual courts, raising questions of equal treatment. Nor is there any guidance on what to do if a person doesn’t have an ID. IPRA suggests the record has to be provided anyway.
IPRA’s fundamental presumption is that all records of public entities are public records and available for public inspection unless a specific exception has been authorized by the Legislature. It does not allow the courts, public entities or state agencies to create their own exceptions or separate requirements.
Nevertheless, government entities continue to place roadblocks in the path of access or introduce new hoops the public must jump through. In this case, the Supreme Court has created a legally questionable hoop in response to a problem it cannot demonstrate exists.
It is time for a reminder: They’re called public records because they belong to the public. And, well-intentioned or not, any effort that makes public access to records more difficult violates that precept.
Today, ID required. Tomorrow, what else?