Enough of the P-word

From the Spring 2002 issue of The News Media & The Law, page 3.

If there was ever a word that sets my teeth on edge — literally making me cringe like fingernails scratching a blackboard — it's "privacy" and its blatant overuse.

Well-intended advocates of the p-word have successfully used it to shut off access to government information ranging from driver's license to divorce court records to settlements involving pedophile priests. In the meantime, they have done considerable damage to the public's right to know.

The latest example comes to us from the National Center for State Courts. Correctly anticipating that state and local court systems will soon be handling most of their records electronically, court administrators and judges decided it would be useful to have a model policy available for states considering how best to manage electronic court records. The Reporters Committee and other media groups have filed comments critiquing the model rules, which place too much emphasis on protection of individual privacy.

At perhaps a dozen conferences over the past two years, privacy advocates and media representatives have been talking at each other. Folks like me talk about the exciting possibilities for better justice system coverage now that the public can have remote access to actual public documents any time of the day or night. Privacy advocates get horrified looks on their faces and exclaim that the public can have remote access to actual public documents any time of the day or night.

I'm getting a bruise on my forehead from banging my head against the wall.

How can such a marvelous advance in technology have gotten such a bad rap? There is no evidence that individuals have been hurt since some jurisdictions have begun posting court records on electronic databases. Yet many court clerks, computer system managers, attorneys and judges have been pushing for electronic court access rules that give an individual's right of "privacy" the same legal standing as the public's right to access. This has simply never been the law.

The proposed NCSC model rules seek to replace the well-established presumption of openness in the courts with a vague and arbitrary "balancing" test that focuses on a risk of "harm." But the fundamental principles of due process outlined by the U.S. Supreme Court in Richmond Newspapers, Inc. v. Virginia mandate that the public's right of access not be abrogated unless there are specific, compelling reasons, supported by actual evidence and not mere speculation, to deny public access to court documents.

In formulating an electronic access policy, the law says courts must presume that the public will have access unless a person in a specific case can demonstrate a compelling reason to limit access. In a case where a litigant wants to limit the availability of information, the court may evaluate whether privacy interests outweigh the right of access in that particular case. The procedure for doing so already exists via sealing orders or protective orders.

Justice system participants should have an innate understanding of why openness is an overriding value. Nevertheless, the Reporters Committee comments on the model rules point out three important reasons for the folks who just don't get it:

First, court records of all types, in all cases, should be available to the public so that the public may monitor how court officials perform their duties.

Second, if a litigant places personal information about himself into the public record voluntarily, the litigant has no expectation of privacy. If a litigant is involuntarily required to divulge information in the course of litigation and has privacy concerns regarding a particular document, he may request a protective order or sealing order.

Third, a defendant has a constitutional right to a public trial because we as a nation believe that a public trial ensures a fair trial. A public trial, however, means that any information that the accused may submit to the court becomes a public record. He has no expectation of privacy in that information.

The public also has a strong interest in ensuring that those who commit crimes are properly convicted and in ensuring that those who are innocent are released. Once a criminal is convicted, the public has an interest in following that person's behavior for its own safety and protection.

There have been a few bright spots in this debate. The National Judicial Conference adopted a policy last year for federal civil courts that presumes that any information found in a file cabinet in a courthouse also will be available electronically. Specific privacy concerns are to be addressed with protective orders. Only the last four digits of Social Security and bank account numbers will be filed in the future in all court documents, a reasonable accommodation to concerns about identity theft.

The federal court system is still considering rules for access to electronic information about criminal proceedings. We're hoping judges also recognize the strong public interest in openness in the federal criminal justice system.

At the moment, however, we have reason to be concerned about access to information stored electronically in state courts.

— Lucy Dalglish

To read the Reporters Committee comments on the proposed model rules, see https://www.rcfp.org/news/documents/20020415modelctacc.htm