The freedom of information age 

A webpage for LexisNexus

The Colorado Courts Record Search website. Screenshot

The information age is supposed to offer us greater government transparency and access. The Paperwork Reduction Act means most people have come to expect digital and electronic means to secure what they need from government. Government information technology systems are more important and fundamental than ever. People generally benefit when information is not hidden from them and they can participate or engage in generating accurate and reliable records about themselves and for themselves, especially for their benefit and the general welfare. Open and transparent government inoculates against shadow government, abuse of power and incompetence. 

Still, open public records requests need to be much more accessible and transparent. For example, finding the “State Request Form” in New Jersey was time-consuming and not easy or straightforward. The Paperwork Reduction Act should mean we are achieving the goal of greater access and transparency, but people who are adversely affected are seeing the opposite. Our government needs to prioritize getting it right with greater government transparency. The government can’t complain about an alleged “lack of interest” or confidence by people if proceedings aren’t accessible. 

For indigent people, government now either has prohibitively high costs associated with its services, especially record requests involving personal information, or uses third-party vendors, like for the U.S. Census and family records searches. This is prohibitive, for instance, when establishing tribal membership, accessing census historical data or going to the Social Security Administration. Paying over $100 for an employment history is prohibitive, and ID requirements mean you can’t even get in the federal building to address tax refund issues. The government holds our data and our money hostage, and this backlogs and logjams our lives and the government system processes themselves even further, on top of what the pandemic already did. The government has a “pay-to-play” service model with our lives, collecting our data, collecting our money, forcing our dependency on it for work and many important aspects of our lives, and it is most detrimental to those who are indigent. This especially negatively impacts the homeless and contributes to chronic homelessness, directly. The use of third-party vendors to provide services is no better, and usually worse. 

The expansive and increasing use of third-party vendors and fees to access public records without accounting for indigency is a violation with serious impacts on employment, personal economy and resolving or addressing any other matters that require public records. There’s an assumption that everything can be accommodated in a timely fashion, but that is hubris and detracts from the flexibility the public and people with special considerations require. We cannot predict it all, but we can accommodate. We must promote access that keeps our government relevant to the people and what they require through all life’s circumstances. The government marches on, affords itself the time it needs and gives itself extensions where necessary, but the timelines and timeframes for what is expected from people is tight, restrictive, inflexible and obstructive with little recourse or remedy. 

Most systems like this across the United States favor public access to financial information, catering to business and economic interests. While citizens are used as the “sell” for such systems, what is delivered in reality and prioritized is business-oriented. the result is government by business, for business, at the expense of the people. 

Public records access, accountability and transparency has actually been declining for the general citizenry, especially low-income and vulnerable people. Even ADA requirements are not being adequately or appropriately accommodated. Indigent people are especially negatively impacted. Public records access is a right and a necessity. Costs may be assessed for a records request according to the service. This has long been the case and is well understood generally. However, with the advent of government information systems, this adoption was expected to reduce costs and increase access for citizens. Instead, costs have been used in a restrictive way creating obstacles and barriers for too many. 

Consider Colorado. The Colorado Judicial Branch does not provide public access to free Colorado court records but uses third-party vendors that charge varying fees. Colorado recognizes “Transparency and accountability to state citizens is a hallmark of good government.” This lends the impression of empowering people’s interests. The Colorado Open Records Act provides that all public records shall be open for inspection by any person at reasonable times, generally. This state law was made possible by the federal Freedom of Information Act, which generally provides that any person has a right to request access to federal agency records or information. 

Information technology systems through third-party vendors that Colorado maintains are not intended to replace Colorado citizens’ access to public information. Rather it is intended to reduce the time and cost and to maximize convenience for state citizens. 

Colorado’s third-party contractor and vendor LexisNexis is the quickest and “most affordable” way to search for Colorado court records. Before a search can be conducted, a user must set up a billing profile with their credit card attached. All online searches are $10 or less. However, the price for a search is the same regardless of whether many results are returned or no results are returned, and after an initial search, a user has 24 hours to review the results before being charged again for the same access. This is because the law was designed to accommodate hard copy material and labor in records retrieval to recoup the costs of court employee time and resources. Third-party vendors administrating public access to records utilize this very same rule to charge accordingly. 

The issue is that most of these systems and their administrators do not accommodate the portion of the law that states, as in Colorado, “Such fees shall be waived for litigants, counsel of record, victims, witnesses, and the media if the requested file concerns a case file located on-site and may be waived for an off-site retrieval if the request concerns an open and active case. Retrieval fees shall be waived for criminal justice agencies and persons determined to be indigent.” Most states have laws to this effect meant to include all members of society in public records access and transparency. Where systems do accommodate on this basis, access is often buried, not readily apparent or navigable. These issues concerning government transparency and public access present a dichotomy, since on one end these systems are being promoted on the backs of the people with the justification that their rights are being empowered, and on the other end, the exact opposite is occurring. 

Our rights are not afforded on a “pay-to-play” basis. One incredibly negative outcome is promoting justice for those who can afford it, but not for those who can’t, creating a two-tier system of rights and freedoms that is unacceptable. That undermines confidence in government. This is also contributing heavily to those we see who are indigent and vulnerable people, the disabled, aged and elderly, medically compromised and more. When we ask why certain demographics of people aren’t enjoying American rights and freedoms to their full capacity and extent possible, these insights give us a better understanding. Systematically, the information age is delivering to some, but not all. One of the key functions of government is public access to government business and other matters of life for those for whom these records are critical and vital. This includes for employment and economic purposes, by which all members of society must be included. 

Where government fails to deliver on one of its most quintessential tasks, public records access and government transparency, using “costs” in a prohibitive and obstructive way, our government fails a fundamental mandate everyone requires. These issues aren’t isolated to government third-party information technology systems contractors. Irrespective of the government agency a member of the public visits to request public records, including at the federal level, many records are no longer available and must be specially requested and/or require very large fees to secure. This is accompanied by less government staffing than ever. While the government favors making a transition to reduce costs, labor and time by automating itself, the promise to the people is being eroded and undermined. 

Government is ill-afforded when it simply exists for the sake of its own institution. Its functions cannot be divorced from the functions it must serve for the people, a government by the people, for the people. How words of law are interpreted and practiced must reflect the principles of our rights and freedoms for anything rendered by the government to be properly reflected. 

Lori Smith is a vendor and artist with Street Sense Media 

Issues |Civil Rights|Social Services

Region |National

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