Nov. 26, 2007 · Open-records advocates reacted wearily this week to the Ohio Supreme Court’s proposed new rules for access to court documents, which could block information that is now readily available to the public.
The proposed rules, released Friday, define what a court record is, require personal information such as Social Security numbers to be removed from documents before they are filed in court and would allow judges to grant limited access to information in records that are otherwise sealed.
Ohio courts currently have no formal guidelines governing public access to state judicial records, and are not bound by the Public Records Law that applies to other government documents.
But while the proposed rules do adhere closely to the state sunshine laws already in effect, they may also create loopholes, including allowing the courts to strike information out of public court filings on the basis that it could lead to identity theft, according to Kevin Shook, a media lawyer at the Columbus office of Frost Brown Todd LLC.
“One of the rules says that where there is identity theft as a concern, a litigant can block any identifying information other than their birth and last four digits of a financial account,” Shook said. “I think what you’ll see is a lot of criminals and other parties to litigation with a sudden concern for identity theft. I think a lot of people will pounce on that provision and use it as a way to limit the info that’s available about their case.”
According to the draft of proposed rules, a court may limit public access to information “if it finds that the presumption of allowing public access is outweighed by a higher interest.” Such interests would include whether the release of the information could: lead to injury of individuals; jeopardize privacy rights and interests; compromise proprietary business information; harm public safety or threaten the fairness of judicial processes.
“These new rules seem to set up a balancing test for a motion to seal that would allow the sealing of a much broader range of information, and I think people will be filing motions to seal court records just to protect from the disclosure of information that are embarrassing to them,” Shook said. “So it will be a case by case and judge by judge basis that will determine what is allowed and isn’t allowed to be sealed.”
Although the seven justices on the court have the final say, the public has until Dec. 19 to submit comments on the proposal.