Maine courts have routinely cut off access to public records for years, after agreeing to end the practice.

Unlike most states, Maine does not have a formal process for expunging or sealing most criminal records for adults. But in 2015, the Judicial Branch began quietly and automatically sealing cases that had been dismissed, meaning the details and the outcomes were not accessible to the public.

Media organizations led by the Lewiston Sun Journal objected and asserted the public’s right to know what happens in the state’s courtrooms. A federal appeals court had previously ruled that blanket restrictions on such records were unconstitutional.

The courts ultimately pledged to reverse that policy in 2016. That change never actually happened, however, a fact realized last month by a Sun Journal reporter.

In response to renewed objections from the Sun Journal and questions from a Portland Press Herald reporter writing a news story, a court spokeswoman said Wednesday the practice would stop.

The computer system has now been reprogrammed to stop the automatic sealing – which occurred 30 days after dismissal – and the courts are rewriting the code to open the cases that were improperly sealed. In the meantime, clerks have been advised that those files should be available to the public. Cases that were sealed by court order will remain so.

“To be clear: data from non-conviction cases are accessible,” Amy Quinlan wrote in an email Wednesday. “The Branch apologizes for any confusion caused by this oversight and thanks its partners in the media for bringing it to our attention.”

It is not clear how many cases were sealed under the policy.

“Over the intervening period of time, it’s impossible to know how many people may have requested these records and how many people may have been unconstitutionally refused case files that they are lawfully entitled to receive,” said attorney Sigmund Schutz, who represents the Press Herald and the Sun Journal.

It is also not clear why the policy wasn’t corrected four years ago as expected. But Judy Meyer, executive editor of the Sun Journal, said a reporter there recently learned that the policy was still in effect because the clerk’s office at the Oxford County Superior Court sealed the file for an attempted murder case. Prosecutors later told the newspaper the complaint had been dismissed for insufficient evidence.

Quinlan said the purpose of sealing those files was to prevent negative impacts from charges that did not result in a conviction. Research shows that even an arrest record can disadvantage a person who is looking for work or housing.

“This process reflected an effort to diminish the stigma for people who were subject to criminal prosecutions but whose criminal matters were resolved without an actual conviction,” she wrote in an email.

But Meyer said the policy would not necessarily achieve that goal.

People would be unable to access their own case files to prove that charges against them have been dismissed. News organizations would be unable to report the outcome of a case that is of public interest. The public would never know why a case was dismissed, so it would be easier to hide misconduct or errors on the part of public officials.

“Whatever was sealed must be unsealed,” said Meyer, who is also the executive editor of the Kennebec Journal and the Morning Sentinel. “The harm has to be undone.”

A case that has been sealed usually does not show up on a criminal background check through the State Bureau of Identification. A case that has been dismissed but not sealed does, even though the background check should show that outcome.

Quinlan said she was not sure how this change would impact background checks and whether the courts would look for another way to keep arrests that did not result in convictions from appearing on those checks.

The Collateral Consequences Resource Center, a nonprofit that looks specifically at the stigmas people experience due to arrest or conviction, has found that states vary widely in their rules for expunging, sealing or otherwise setting aside criminal records.

The center said 14 other states have some form of automatic process for expunging or sealing cases that do not end in convictions, although not all of those policies are comparable or apply to the same records. Maine is one of only eight states on the center’s list that does not have any general expungement or sealing of convictions.

Schutz said this specific policy in Maine did not stand up to federal case law. He pointed to a 1989 decision by the 1st U.S. Circuit Court of Appeals in Boston, which found that a “blanket restriction on access to records” from closed criminal cases violated the First Amendment.

“There are broader issues with criminal justice system reform, to what extent expungements may be allowed or permitted, and where the line is for the public’s right to access information about past criminal cases and efforts to help those people with criminal convictions to get back on their feet,” Schutz said. “This is a question of transparency around what the district attorney is up to and transparency around what the courts were up to.”


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