Nine years ago, next door neighbors Joe and Kristina got into a verbal dispute. Police came to the scene, noting in their reports that Joe’s breath had the “odor of an alcoholic beverage” and that he appeared “intoxicated.” Officers told them to leave each other alone, and they left to handle other calls.
Six years later, Joe asked to see police reports about himself, and he wasn’t happy with what he found: he maintained that he had abstained from alcohol use since undergoing chemical dependency treatment in 2003, and the officers must have smelled mouthwash or hand sanitizer; he wasn’t drunk, he said.
Minnesota law gives individual subjects of government data the right to contest the accuracy or completeness of that data, which can be an informal resolution directly with the government entity, or a formal administrative hearing with testimony and findings of fact. If such a challenge is successful, the law says the data must be completed, corrected, or destroyed.
The police department refused to change their reports, so Joe proceeded to challenge it through an administrative hearing, and he got a few details changed through the process. But in doing so, Joe turned a couple sentences written in an old report buried in a police department’s database into one of the top results for a Google search on his name. Almost every detail of that police visit, now easily accessible to anyone with an internet connection.
That’s because the Office of Administrative Hearings (OAH) publishes online every single order their administrative law judges issue. On one hand, it’s fantastic news for journalists, researchers, and anyone interested in judicial system access. But for the subjects of OAH hearings—often on sensitive topics like employment disputes, revocations of child foster care licenses and teaching licenses—these orders sting.
- Mindy, a home daycare provider, appealed a Minnesota Department of Human Services finding that she had “physically abused a child in [her] care.” However, there wasn’t evidence presented supporting a finding that the injury wasn’t simply an accident, the judge said. But as parents search Google for Mindy’s name when seeking a daycare provider, that OAH order with unsubstantiated allegations is now one of the top results.
- Jeffrey, a state worker, challenged his government employer not allowing him to interview for another position. Now, when other prospective employers perform a Google search Jeffrey’s name, the top result is the OAH order, publicizing the fact that he lodged the challenge, and the finding that he wasn’t in fact qualified for the job.
- Michael is on the tail end of a long sentence and civil commitment for criminal sexual conduct, but graphic details of his crimes appear nowhere in the first ten pages of Google results on his name. Except, because Michael challenged the accuracy of a few inconsequential details in a five-year-old sex offender assessment, an OAH order filled with details now appears near the top of the results for a search on his name.
- Leila, a retired teacher, challenged the calculations of her monthly pension benefits. Now, the first result in a Google search on her name is the OAH order publicizing her work history and finances.
If the purpose of Minnesota’s data-challenge law is to afford Minnesotans the opportunity to fix inaccuracies that might harm their reputation, does a process that ensures every granular detail is published and publicized—regardless of the outcome—defeat the purpose of the law?
If you knew that challenging embarrassing and inaccurate data about you could end up putting that same information in the top slot of a Google search for your name, would you still do it? You might win in court. Government could be ordered to correct or destroy inaccurate data. But you’ll never win on Google.
There’s no doubt that the work of the courts must in all ordinary situations be accessible to the public to promote trust in a system that determines facts and interprets laws in pursuit of an equitable balance to the scales of justice. Some of OAH’s cases involve campaign finance regulations, freedom of information issues, and matters that are very much in the public interest. Pleadings and orders in any court proceeding could be useful to researchers, helpful to future litigants, and above all else, newsworthy and deserving of publication and publicity.
Access to judicial records is a big problem in America, and this is certainly one solution. But OAH’s blanket publication of orders is more than just accessibility. These orders are optimized to show up in Google search results, without analysis as to whether it’s truly in the public interest.
Do we need a change in the law on data challenges, should judges be required to think about publicity and distribution for every order they issue, or is it all Google’s fault?
Some will call this a welcomed adoption of technology and refreshingly radical transparency, but it also feels like punishment for looking to the judicial system for remedies.