It was a bit of an unusual position for the American Civil Liberties Union of Maine: arguing to limit the full release of public court information.

But there are cases, the ACLU of Maine argued Tuesday before the Maine Law Court, when privacy concerns trump broad disclosure of public information.

ACLU of Maine legal director Zachary L. Heiden asked the court to order a Probate Court not to release financial information online in a conservatorship case. The information is available in paper form at a courthouse, Heiden said, but releasing it online exposes potentially sensitive information to a worldwide audience.

Heiden was opposed by Sigmund D. Schutz, representing the Maine Freedom of Information Coalition, who said the court shouldn’t differentiate between different forms of release, because that would declare that paper records should be public, while the same information in electronic form can be restricted by the court.

Schutz, who has represented the Portland Press Herald in some previous cases, said continuing to make the information public, both online and in court files, helps the public maintain an eye on the courts and the decisions they make.

The case before the court involved a woman in Kennebec County, identified only as Emma, who had a conservator appointed to oversee her finances and care. The conservator has to file financial information with the court and had asked that the information not be released online in this case.

The probate judge did not make a ruling and instead opted to send the question to the Law Court.

Most Maine county probate courts don’t release such financial information online, but Kennebec and Penobscot counties do collect summaries of filings and post them online at maineprobate.net.

Heiden said the financial information is sensitive and there’s a difference between someone physically seeking the documents in a county courthouse versus someone with a computer, anywhere in the world, being able to access that information.

He faced questions from the justices, including Chief Justice Leigh Saufley, who suggested the Law Court might sidestep the question.

She noted that all Maine courts are expected to move to electronic filing in the next year or so and perhaps the question would be best addressed at that time, along with other questions regarding what types of documents should be available online and how they can be accessed.

Saufley suggested “a more comprehensive approach to all the records that will become electronic” and also said there’s always been a degree of separation between probate courts, presided over by elected judges, and other state courts – including the Law Court – where judges are appointed, although she didn’t question whether the Law Court had the ability to make a ruling.

Heiden said that probate judges need guidance on the constitutional question of whether records that are made available to the public also need to be posted online.

“There’s a meaningful distinction between electronic documents and paper documents,” he said.

But Schutz said making those distinctions affects the public’s right to monitor the courts, and that the Law Court should lean in the direction of making the court process as transparent as possible.

Both Schutz and Heiden conceded that federal courts have dealt with the issue of what can be posted online already, because most documents have been available for about a decade and there’s an online system for accessing most federal court documents for a fee.

But Saufley said federal courts don’t often deal with sensitive individual and family matters, as state courts do, and the court system should be careful about how it makes decisions regarding public access to that material.

“Is it reasonable for us to undertake that on a piecemeal … basis?” she said.

The court did not give an indication of when it might rule.

Edward D. Murphy can be contacted at 791-6465 or at:

[email protected]


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