By Susan
Larson
As the demand for electronic access to court case records increases—from
the media, research organizations, and other businesses—and as courts
become positioned to provide such access, either through the Internet
or other new technologies, the public grows evermore aware, concerned,
and vocal about data privacy. As these competing interests square
off, courts must make decisions and set policy regarding electronic
access to public records.
Today many state and federal courts are actively studying the issues
of privacy and electronic access to public court records. Of primary
concern to the courts and public is that Internet access to court
records will allow greater numbers of people to more easily review
potentially sensitive information contained in court records. Internet
access threatens to eliminate the existing “practical obscurity” of
paper court records, which currently provides some measure of privacy
protection for court participants. Internet access will allow the
public, from any remote location, to access court records and read
court documents with little personal effort or accountability.
To address the
complex and competing interests of public access and privacy, courts
are establishing committees, reviewing existing rules, requesting
comments, and conferring with other courts. Here are a few examples
of such court activities:
q
In 1996, the Supreme Court of New Jersey issued a Report
of the Public Access Subcommittee of the Judiciary Information Systems
Policy Committee. Recommendation 5 of the report states, ”After
carefully considering the privacy concerns . . . privacy interests
should neither preclude nor limit the public’s right to access non-confidential
information in electronic form.” The comment to Recommendation 5
further states that the Subcommittee acknowledged “the troublesome
issues raised by privacy advocates” but rejected “the notion that
it is the role of the courts to restrict or suppress access to otherwise
public information, gathered and maintained at public expense, based
on the possibility that it might be used to the prejudice of individuals
in certain cases.”
q
In 2000, the Maryland State Courts released a draft
administrative order and draft judiciary policy proposing new
access limitations on criminal court records. Following a public
hearing in December 2000, the Maryland State Courts withdrew the
proposed limitations and expanded the oversight committee, partly
in response to public outcry.
q
In late 2000, the Conference of Chief Justices (CCJ) and Conference
of State Court Administrators (COSCA) tasked their Joint Court Management
Committee with developing recommended policies and procedures for
state courts to use when addressing issues of privacy and public access
to court records. The Committee will report back to the CCJ and COSCA
at the annual meeting in August 2001.
q
During the period of November 2000 through January 2001, the
federal judiciary requested and received
comments on privacy and public access to electronic case files.
Privacy advocates
and groups are speaking out on the issue of privacy and public access
to court records. For example, in response to the federal judiciary’s
recent request for comment on privacy and public access to electronic
case files, the Privacy Foundation,
of Denver Colorado, submitted a comment
recommending that the Administrative Office of the United States Courts
appoint a National Commission to study the appropriate levels of public
access to electronic databases of court records containing personal
information.
Other non-court
criminal justice agencies and organizations also are actively studying
similar issues with respect to the broader spectrum of criminal justice
information, including criminal history and arrest records. For example,
both SEARCH and the U.S. Department of Justice,
Bureau of Justice Statistics, dedicate efforts and prepare materials
pertaining to privacy and criminal justice information.
The Issues
Should Traditional Rules of Public Access Apply, Without Modification, to Electronic
Court Records? The basis for open court records is a common
law right “to inspect and copy public records and documents, including
judicial records and documents.” Nixon v. Warner Communications,
Inc., 435 U.S. 589 (1978). However, this common law right is
not absolute. Id. In addition, several courts of appeals
have found a limited First Amendment right to various types of judicial
records, see, e.g., In re Continental Illinois Securities Litigation,
732 F.2d 1302 (7th Cir. 1984), however, the Supreme Court
has not yet definitively held that a First Amendment right of access
to court documents exists. Courts cite various underlying reasons
for open court records: to aid in preserving the integrity of the
judicial process, United States v. Hickey, 767 F.2d 705, 708
(10th Cir. 1985); to enhance the public trust and confidence in the
judicial process and to insulate the process against attempts to use
the courts as a tools for persecution, Williams v. Stafford,
589 P.2d 322, 325 (Wyo. 1979); and to maintain public trust and confidence
in the operation of the court system, Vermont Rules for Public Access
to Court Records, § 1 Reporter’s Notes.
Traditional rules of public access to court
records are based on these principles, but were developed when only
paper court records existed. Now with the emergence of electronic
court records and the Internet, the public and the courts are questioning
whether traditional rules should be applied to electronic records.
Were traditional rules of access drafted with limited access in mind?
Or were they drafted to facilitate broad dissemination of court matters,
including personal information about litigants, witnesses, and victims?
Under the traditional paper system, the media often distributes sensitive
information to the masses, gleaned from court records, but only on
a limited number of data subjects. Interestingly, Internet access
will facilitate a different information dissemination model. Rather
than mass dissemination of personal information on relatively few
individuals, as with media publication, Internet access will disseminate
personal information about many more individuals, but only to the
few who take the time to actively inquire.
For further legal discussion of the rights
of access and privacy, see the Administrative Office of the U.S. Courts
staff paper, Privacy and Access
to Electronic Case Files in the Federal Courts.
Who Controls Court Record Access Law?
Traditionally, court record access rules have varied from state to
state. In most states, courts exercise control of court records and
define public access rules under their general supervisory powers,
which include the authority to prevent improper use of such records.
Nixon v. Warner Communications, 435 U.S. 589 (1978). In some
states, however, legislatures play a role in setting court record
access law. See, e.g., Va.
Code Ann. § 16.1-69.54.
A strong trend toward privacy legislation is also emerging—at both the state
and federal level. Privacy legislation tends to counter traditional
rules of public access to court records. To what extent should courts
follow legislative trends? Will the future bring continued inconsistency
from state to state or agreement among the state courts and a unified
approach? Is there a possibility of federal control? How and when
will the U.S. Supreme Court weigh in on these issues?
Should Courts Consider Separate Rules
for Electronic and Paper Records? This has long been an acceptable trend
because court technology and resources have not existed to offer a
complete electronic access solution. However, as courts gain the
capability to provide secure electronic access, through the Internet
and other means, do two sets of rules still make sense? California
courts have issued special rule provisions for electronic access to
records, including restrictions on electronic access to “cases involving
family law, child support, juvenile law, mental health, probate, criminal
law, or public offenses.” 2000
California Rules of Court, § 38 (c). When courts using separate
rules for paper and electronic records eventually eliminate paper
records, will they keep the stricter set of electronic rules and discard
traditional rules? Or will they roll back some of the electronic
restrictions to the original paper-based rules? If so, why not skip
the “dual rules” step and simply tighten up traditional public access
rules now?
How Do Courts Identify “Sensitive”
or “Personal” Court Information that Should No Longer be Public?
As courts consider limiting access to sensitive or
personal data that is now public, in either electronic or paper records,
few resources exist to aid in the process. While some high-level
data categories have been identified as potentially sensitive—such
as medical, financial, and family—no data models or other resources
exist to help courts through the process of identifying and defining
a comprehensive set of sensitive/personal data. Potentially sensitive
or personal information exists in different types of cases and is
used for different purposes in those cases.
Should Courts Impose Access Restrictions
Based on the Type of Requestor and/or the Intended Use?
Few courts today restrict access to
paper records based on the type of requestor or the intended use.
However, considering the volume of requests for entire databases currently
being received by courts from businesses, is it now appropriate for
the courts to provide different levels of access for different types
of requestors? Should the legal bar and research organizations have
more access than private businesses and the public? What about the
media? What are some of the practical issues that must be addressed
when entire databases are released?
Resources
The JusticeWeb Collaboratory’s Judge-to-Judge
discussion area provides an opportunity for judges to engage in secure
exchanges on these issues.
For more in-depth information about current developments on
this topic, please visit the NCSC web page on Public Access to Court
Records: http://ctl.ncsc.dni.us/publicaccess
