Nebraska Stonewalls Access to Public Child Custody Records

January 4, 2015 by Robert Franklin, Esq, Member, National Board of Directors, National Parents Organization

In tandem with an apparently anonymous and ad hoc decision to alter the data on child custody cases in Nebraska (see previous blog post), comes the refusal of the state to make public its data on those cases. Here’s one article (Omaha World Herald, 11/20/14, and here’s another (Lincoln Journal Star, 12/23/14).

The study conducted in 2013 and made public in January of 2014, revealed data that frankly contradict those who persist in claiming that shared parenting should be rare or non-existent. But, favorable as it was to us in the shared parenting movement, some wondered if it really told the true story. After all, the person in charge of designing the study, and gathering and analyzing the data was Professor Michael Saini, who was hand-picked by the anti-shared parenting crowd. Unsurprisingly, he’s also a member of the Association of Family and Conciliation Courts, the foremost organization in the world opposing fathers’ rights to their kids and kids’ rights to their fathers.

So Bruce Friedman, a Nebraskan who plays for the shared parenting team, decided to check Saini’s work. He wanted access to child custody records maintained by the court system. Friedman’s an information technology guy, so he figured he could get the digital records of child custody orders in Nebraska and see whether Saini’s study is accurate or not.

That should have been easy. After all, those cases are matters of public record. Anyone can march into any courthouse in the state and demand to see the file in any case or all of them. He/she can also have copies made of any documents in those case provided he/she pays the cost of copying.

But Friedman was in for a surprise.

Friedman filed a request for the data in May with Court Administrator Corey Steel under the Nebraska public records law. He sued the next month, after Steel declined to release database information that included the master index, tables, schemas and sequences…

The case involves a dispute unimaginable when paper records were stored in the clerk’s offices of 93 courthouses. But now a computer network called Justice connects the courts and allows for the daily uploading of electronic records to a central case management system operated by the State Court Administrator’s Office.

Access to the digital records is provided through a fee-subscription to the Justice website or by using public computer terminals in courthouses at no charge.

But Friedman said the Justice website is so cumbersome to search that it severely restricts what information can be obtained and how the information can be used. A copy of the raw data would allow queries and analysis that can’t be done on the website, he argued.

His motive is to investigate the performance of the state’s judges, in particular how they handle child custody cases, Friedman said. But the data could be used for an endless variety of searches that would provide greater scrutiny and understanding of the judicial branch.

He said his request does not include juvenile or other records considered confidential by the courts.

“My goal is to not sell the data, my goal is to give the data away,” said Friedman, who is representing himself in the lawsuit, although he does not have a law degree.

In short, Friedman wants to know — and he wants all Nebraskans to know — what its courts are doing when they decide matters of great importance to the state’s children and their parents. To some, that seems like a laudable goal and indeed, what could possibly be the problem? It’s not as if he could reveal matters of national security or proprietary matters that could damage a business. No, he just wants the public to know what its courts are up to.

And there’s little doubt he’s right when he says that searching individual cases, tabulating and analyzing the data would be a herculean task, beyond the capability of just about anyone. But the (ironically named?) Justice system already codes much or all of the information Friedman seeks.

So what justification is the state offering for refusing to make public information that’s (a) already public and (b) bought and paid for by taxpayer dollars?

Assistant Attorney General Stephanie Caldwell argued that what Friedman was asking for didn’t qualify and, even if it did, the state had legitimate reasons not to provide the information.

"All of those items in his request are pieces of the JUSTICE System," she said.

Caldwell said what Friedman was asking for was the source code. It’s in the public interest not to release that, she said, because it could put the state’s court record system at risk.

Hmm. I’m no IT wizard, so I can’t say whether the state’s argument is legitimate or not. Certainly it has an interest in not opening up its Justice system to hacking. That could prove disastrous for parents, children, courts and attorneys.

But just as certainly, that’s not what Friedman wants. He wants the records and the information about them categorized as the Justice system does. That system will be able to tell him in how many cases sole maternal custody was ordered, sole paternal custody, shared custody and the like. That would be far more accurate data than Saini’s study that only analyzed 392 cases that may have not been representative of the whole.

From where I sit, I can’t believe there’s no way for the state to provide Friedman what he wants without compromising the integrity and security of the Justice data system. That the state is willing to go to court to resist disclosure of that information strongly suggests it thinks it’s got something to hide.

As it should be, transparency in the operations of the state happens to be the avowed policy of the State of Nebraska. But neither the Court Administrator nor the state Attorney General’s Office seems to grasp that basic concept. Steel’s response was not “I’ve got some concerns about giving you this information, Mr. Friedman. Let’s work out how we can do so and not compromise the security of the Justice system.”

No, his response was blunt refusal. That required Friedman to file a lawsuit that’s currently underway in Lancaster County. Steel’s response to that seems to tell us all we need to know about Nebraska’s willingness to allow its citizens access to what’s really going on in its family courts.

The case got off to a rocky start when Friedman called Steel, the defendant, and he failed to show.

[Judge Paul] Merritt said he’d never had a solely named party not show up.

"Get him over here," Merritt told Caldwell.

After more than an hour wait, Steel took the stand…

Yes, having been subpoenaed to testify, Steel ignored the summons until personally ordered to appear by the judge. That is, until he was faced with the threat of a contempt citation, Steel was willing to do what he’d done before — stonewall the public’s right to know what’s going on in its family courts.

Will Nebraskans ever know? Friedman wants them to; the state doesn’t. ‘Twas ever thus. Governments are well known for preferring secrecy to transparency, and so it is here, even in an era of “open government.” I suspect it’s no coincidence that this dispute is about family court records and not some other kind. The anti-dad crowd are feeling the hot breath of shared parenting on their necks and look to be willing to resort to just about anything to maintain the status quo.

For now at least, that effort looks like it includes both altering inconvenient facts from the Saini study and preventing Nebraskans from assembling data of their own.

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