 Thank you. Thanks, Jonathan. That was very interesting and frightening. None of this I hope will frighten you, but I hope it will be interesting. So as Chris said, I just want to get this in a way. OK. So as Chris said, I am the faculty director of the Harvard Legal Aid Bureau, which is a student-run civil legal aid organization. I represent tenants and homeowners in eviction cases. I teach affordable housing law at the law school. So what in the world am I doing at a conference on transparency and freedom of information? Well, one of the great things about being a clinical professor at a place like Harvard is that I'm perfectly positioned at the intersection of ideas and theories and the real life messy world of litigation in state courts. And so what I'm going to do today is take this big idea we have of transparency and freedom of information and drag it down into the muck of my everyday work with clients and look at what it really looks like for them. So that's what I'm going to take you through. So a few years ago, Massachusetts, and I recognize that this is not necessarily a friendly audience for me, which is probably why my voice is shaking. But I think by the end, you will all be on my side, either side, even Liz. OK, so a couple years ago, Massachusetts put all the landlord tenant case records online and made them remotely accessible to the public. And this was great for me because I was practicing landlord tenant law, and it was a pain in the neck, and I had to go to the courthouse every time I needed something. So this was really convenient. And that's one of the main reasons that the Supreme Judicial Court said we should get all this stuff online. The convenience of litigants and the convenience of attorneys. Convenience of attorneys, obviously, being of utmost importance. But, and so this is what it is, right? You enter a name, and then you can pull up you. You can enter your court, and then you pull up the docket. That's what's in there. But here's the other thing, the other reason behind this, and this brings us to the theme of today's conference. Providing case information on the web allows the public to learn more about how the judicial system operates by providing basic information about individual cases. In other words, so this is sort of like a kinder, gentler version of the watchful eye theory, where when Nixon was trying to stop everybody, he was trying to stop the bleeding in Watergate, and he was trying to stop all the media outlets from accessing the various parts of the things that he was doing, including the tapes. The Supreme Court said, even court records, not just court proceedings, are entitled to some protection. They're entitled to a common law presumption of open public access because in part of the citizen's desire to keep a watchful eye on the workings of public agencies. So, and that's great. And having just listened to Jonathan, it's good that you went first. I think everybody here, including myself, and particularly right now, feels that the watchful eye is really, really, really important, and that we need to strengthen it and not roll it back. The question that I have is who's watching the landlord tenant records on mass courts? OK, so Richard Betstein is a blogger for the Massachusetts, and he has this blog, and he blogs about real estate law, and he represents landlords. And as he says, this is the result of years of lobbying from rental housing groups because mass courts is a powerful new and free tool for tenant screening. So essentially, landlords can go on mass courts. They can look up their tenants. They can look and see how many, or potential tenants, look and see how many landlord tenant cases they've had, how many eviction cases they've had, how many cases they've brought against their landlords, et cetera, and do tenant screening that way, and they can do it from the comfort of their own homes. Very easy, tenant applies. Landlord looks them up on mass courts. Done, right? OK, so what's wrong with that? What could possibly be wrong with that? I'm going to tell you, that's what's going to happen next. OK, so one problem, well, let me not get to that first. First of all, do this. Mass courts is not very, it doesn't have all the information you would need to get a good answer to any of those questions. Like, is Maria Martinez a good tenant? OK, first of all, I look up Maria Martinez in mass courts, and this is what I get, and this is only page one. So which of these cases is the Maria Martinez who's just applied for my apartment? I don't know. And let's say she has all these cases. What happened in these cases? You can kind of get a little bit of a sense from the docket entries, but not really. And why can't you get a good sense? One of the things is that the dockets reflect why the landlord has brought the case. Let's say we're talking about just eviction cases, where it says summary process, that's eviction, because it's fast. You can learn why a landlord brought the case. That's got its own box. Why did the landlord bring this case? What is the landlord's allegation? Non-payment of rent, that's got its own box. Tenants' defenses are not reflected in the docket. So you don't see what the tenant is saying back. You don't know the tenant saying, I didn't pay my rent because I called inspectional services and they deemed my apartment unfit for human habitation because the landlord turned the heat off and refused to turn it back on, and that's why I didn't pay my rent. That's not in the docket. Also, it's full of errors. And I can't blame the court system for this. It's not their fault. The court systems are underfunded. But these things, I've looked at my own cases. 80% to 90% of them have errors in them. And sometimes those errors are really significant. So Nora Malberg, who is an HLS graduate who's been working on this issue with me, did a survey of all of the Harvard Legal Aid Bureau cases. And in 40% of them, there were significant errors on the level of the docket reflected a judgment in favor of the landlord when actually the case had been dismissed. Or in some cases, when there was actually supposed to be a judgment in favor of the tenant. So it's not giving people good information. And the additional problem, the reason this becomes such a big problem, is that landlords don't have an incentive to get to the bottom of it. So in Boston, we have this was in 2015, and this is only getting worse as anybody who lives here knows. In 2015, we had a 2.6% vacancy rate. And the average two-bedroom rent was $2,602. And just to give you a sense, the amount that people who are on social security disability get is about $800 a month. So you're talking about a very large number of people competing for a very small number of apartments. The landlord doesn't have the incentive. Good, nice, wonderful landlord does not have the incentive to try and sort through all of these Maria Martinez's and all of these dockets to figure out. It's just like Maria Martinez looks like trouble. I'm going on to the next person. OK, so one of my big problems with this is it's transparent, but it's not telling the truth. It's not telling the full story, and it's not telling necessarily the real story. So there's another level of problems here. And that is that the presence of this information, the fact that this information is going to be on mass courts and be fully available, by the way, forever, forever. There's no time limit. It's not like, oh, after five years, you get a clean slate. No, forever, online for free. Landlords know that, right? Tenants know that, so they're scared to go to court. And landlords know it, so they can use it to scare tenants into not going to court. So here's the landlord. This is an actual landlord sent this letter in 2015 while we were in the middle of this battle. And the landlord says, if landlord presents this totally onerous agreement, I've seen it. It's ridiculous under the circumstances. And then the landlord says, oh, OK, if you don't sign this, it won't go to court. But once the case is served and filed, you will have a permanent record in housing court, even if we reach an agreement without going before the judge, or if we just ask for dismissal and never go to court. If you win sanctions against me and you can say you won in court, do you think that will make any prospective landlords feel better about renting to you? If you win, you are marked. You are blacklisted. And the government is pushing this information out and making it free. What I think is facilitating that. And that's not all, of course, as you can imagine. If you're going to get blacklisted for exercising your rights, you're certainly going to get blacklisted for having a lawyer. Why is that a big deal? Because what do you think the percentage of tenants in eviction cases that are actually represented by lawyers is? In the housing court last year, it was 6.7%. 6.3, actually, I think. So 93.7% of tenants do not have lawyers. That's how bad the situation is. Okay, and that will become relevant later. All right, so now you have an access to justice issue because people can't, people are afraid to assert their rights, and they really are, they say that to us, and you know what? I don't know what to tell them, except, yeah, you're right, you're right. Okay, so now we've seen this problem in other contexts, right? This is not evictions. This is not the only place that we've seen this. We have seen this in the criminal records context. And there has been, there is a mountain of social science research showing that people with criminal records have trouble getting access to jobs, they have trouble getting access to housing. This is all common sense, but there's also a mountain of research to support it. Trouble getting access to housing, trouble getting access to jobs, and therefore are sort of floating around in the economy without the ability to basically reintegrate. And the ability to reintegrate is crucial to your successful productive life in a non, you know, basically people who can't get housing and can't get jobs tend to reoffend and end up back in the system. So because of all that, Massachusetts and other places have engaged in criminal records or criminal justice reform where we allow automatic sealing of criminal records after a certain period of time, and then discretionary sealing of criminal records after some period of time. And there was this great case litigated by my colleague, I guess I would call her Pauline Curion called Commonwealth versus Peter Pan. Ironically, by challenging his, he tried to seal his records and had to challenge it because he lost, so he had to challenge the standard. And ironically, by doing that, he became like the most famous criminal defendant in Massachusetts because I'm just telling you all his name, Peter Pan, just in case you wanted to know. Anyway, so by going up to the SJC, he becomes very famous and can no longer be private. But bravely he did that and the SJC said, yes, you know what, you're right, you're right. Certainly there's some interest by employers in knowing whether someone has a criminal record, but we also recognize that people need to have clean slates, they need to be able to move on, and that a criminal record doesn't tell you everything that you wanna know. So not only does Peter Pan have a privacy interest in his background, but the Commonwealth has an interest in having Peter Pan have a clean record. And so people in his situation with certain kinds of criminal records after a certain period of time can come in and try and seal them. So that could be an option in evictions, but we have some problems. One problem is, as I said, there are no lawyers. So that's a problem. Anything that's done on a case-by-case basis by eviction defendants is gonna be a problem. Most of them are low income, many of them are unsophisticated in the judicial system. A lot of people with disabilities, including disabilities like severe depression and learning disabilities and other things that just make it hard to participate, language barriers, et cetera. So lawyers are crucial, they don't have them. But here's the other problem. In criminal cases, you don't have to go in and prove that by getting your record, that you're facing barriers in the economy from having a criminal record, because we have a mountain of evidence. We have so much evidence of that courts can take judicial notice of that fact. In eviction cases, the courts will routinely say, I don't have any proof. And actually, this is the reaction I get a lot going around town. How do you know that someone's eviction record is stopping them from getting new housing? Prove it. You don't have to prove it in the criminal case. In the criminal context, the judges can take judicial notice. Eviction defendants without lawyers have to prove that. Hard to do. We don't have the kind, unfortunately in evictions, we don't have the kind of research that we have with criminal records. Matt Desmond's written this fabulous book and I'm putting it up here, so anybody who hasn't read it should read it. It's just really incredibly moving and deeply researched at both an ethnographic and a statistical level. And so he was able to get to the bottom of it. But one of the things he noted was that in the private rental market, we basically have no social science. So how else does that get in the way? So okay, so what else are we doing with criminal records? Under Obama's leadership, we have said, we recognize that the impact of criminal records has a disproportionate impact on people of color. And therefore, you can bring, if a landlord is using your criminal record to discriminate against you in the housing market to basically say, oh, you have a criminal record and therefore nobody with criminal records can become admitted to my housing, right? I won't rent to any tens with criminal records. The federal government has said that can be unlawful race discrimination because it has a disproportionate impact on people of color, your criminal record. We don't have this in the eviction context because we don't have, again, those mountains of evidence showing that it has a disproportionate impact on people of color. So there's some work to do there. The question is, by the time we get that work done, are we gonna have the Fair Housing Act anymore? Because one of the early, everybody knows who this major landlord accused of anti-black bias in New York City was, right? Donald Trump. Not a fan of the Fair Housing Act. So we're not gonna spend a bunch of money and time on that remedy just yet. So that brings me to what can we do? What can we do? What can we do? Okay. A few things. So in New York, the New York City Council, I believe, was considering something where you, it would become unlawful for a landlord to use certain kinds of eviction records against you in rental housing. But you can imagine what the problem with that is, proving it. Okay, let's say we get that law, that's great. The government puts all the information out there, transparency, freedom of information, and then you just stop people from using it in a bad way, but you know we can't do that because it's so impossible to catch. It's hard to catch people engaging in race discrimination in rental housing, and this is just gonna be another problem in the same vein. Okay, another idea back when that case about the right to be forgotten came out, so some of the suggestions were like, why don't we have something where people can write on their own Google page and put comments in there? So there are some states that have created that in the rental housing context, so yes, the government puts your information out there, but you have the right to get in there and comment on it. But here's my favorite, and this is where I think that we really have to go. And I know that this might offend this audience, but this is where I really think we have to go. I just think they have to not become public, at least certain records for a certain period of time. So California has just adopted this rule where for 60 days, eviction case filings are not public. If the landlord wins within 60 days, it becomes public right away. If the landlord, if nobody wins within 60 days, it only becomes public if the landlord wins after a trial on the merits. So this gives everybody access to, gives landlords, future landlords, prospective landlords, access to information about the real problem situations. Okay, I mean, arguably. But keeps most of it private. And this facilitates settlement and it also protects us from ending up with a situation where you have this class of unhousable people. That is what is happening in a lot of places. And I recognize that in some ways this is not transparent. At the same time, most eviction is not transparent. Again, you gotta read Matt Desmond's book, but most of it's happening off the books anyway because so few cases get to court. And the question is by making this transparent, we are actually not just embarrassing people, but it's like actually a matter of survival for them. And I'm not yet convinced that there's a significant public purpose that justifies just totally throwing it wide open, putting it on the web forever and ever again. That's my show you. Sorry.