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Privacy interests are prompting the judiciary to block access to courthouse files From the Winter 2001 issue of The News…

Privacy interests are prompting the judiciary to block access to courthouse files

From the Winter 2001 issue of The News Media & The Law, page 17.

Federal and state courts across the nation are quickly developing the technology and obtaining the equipment to provide Internet or electronic access to their records. Providing such access will make records searches quicker and more efficient for the press and the public.

Nevertheless, some courts are questioning in the name of privacy whether to allow such access.

The federal judiciary sought comment on the privacy and security implications of providing electronic public access to court files. The Reporters Committee for Freedom of the Press submitted comments on Jan. 26, which were joined by the Society of Professional Journalists, the D.C. Chapter of SPJ, and the Radio-Television News Directors Association.

A tentative plan would provide access to files through the Internet, but the judiciary has not made a final decision on exactly how much material would be available via the Internet. The Administrative Office of the U.S. Courts, citing the need to address various privacy and security concerns, has proposed a number of policy options depending on the type of court record, and has sought public comment on which options to select.

Regarding civil case files, the Administrative Office has asked for comment on four competing proposals. The first is to maintain the presumption that all filed documents that are not sealed are available both at the courthouse and electronically. This approach relies upon counsel and pro se litigants to protect their interests on a case-by-case basis through motions to seal specific documents or motions to exclude specific documents from electronic availability. It also relies on judges’ discretion to protect privacy and security interests on a case-by-case basis through orders to seal or to exclude certain information from remote electronic public access.

The second proposal defines what documents should be included in the “public file” and, thereby, be available to the public either at the courthouse or electronically. This option treats paper and electronic access equally and assumes that specific sensitive information would be excluded from public review or presumptively sealed. It assumes that the entire public file would be available electronically without restriction and would promote uniformity among district courts as to case file content. The challenge of this alternative is to define what information should be included in the public file and what information does not need to be in the file because it is not necessary to an understanding of the determination of the case or because it implicates privacy and security interests.

The third option establishes “levels of access” to certain electronic case file information. This contemplates use of software with features to restrict electronic access to certain documents either by the identity of the individual seeking access or the nature of the document to which access is sought, or both. Judges, court staff, parties and counsel would have unlimited remote access to all electronic case files. This approach assumes that the complete electronic case file would be available for public review at the courthouse, just as the entire paper file is available for inspection in person. This approach would not limit how case files may be copied or disseminated once obtained at the courthouse.

The last option presented for civil case files seeks an amendment to one or more of the Federal Rules of Civil Procedure to account for privacy and security interests.

The federal court administrators have asked for comments on two options regarding criminal case files.

The first completely denies electronic public access to criminal case files. Due to what it calls the very different nature of criminal case files, the courts say there may be much less of a legitimate need to provide electronic access to these files. The files are usually not that extensive and do not present the type of storage problems presented by civil files, the court administrators said, and because prosecutors and defense attorneys are usually located near the courthouse, those with a true need for the information can still have easy access to it. Further, any legitimate need for electronic access to criminal case information is outweighed by safety and security concerns, according to this proposal. Additionally, the availability of certain preliminary criminal information, such as warrants and indictments, could severely hamper law enforcement and prosecution efforts, the administrators say.

The other option provides limited electronic public access to criminal case files. This alternative would allow the general public access to some, but not all, documents routinely contained in criminal files. Access to documents such as plea agreements, unexecuted warrants, certain pre-indictment information and pre-sentence reports would be restricted to parties, counsel, essential court employees, and the judge.

Four options have been offered for bankruptcy case files.

The first option seeks to amend Section 107 of the Bankruptcy Code. Section 107 currently requires public access to all material filed with bankruptcy courts and gives judges limited sealing authority. Recognized issues in this area would be addressed by amending this provision to specify that only “parties in interest” may obtain access to certain types of information, and to enhance the sealing provisions in Section 107(b) to clarify that judges may provide protection from disclosures based upon privacy and security concerns.

The second proposal requires less information on petitions or schedules and statements filed in bankruptcy cases. A third option restricts use of Social Security, credit card and other account numbers to only the last four digits to protect privacy and security interests. The final proposal would segregate certain sensitive information from the public file by collecting it on separate forms that will be protected from unlimited public access and made available only to the courts, the U.S. Trustee and to parties in interest.

For appellate cases, the options are to either apply the same access rules to appellate courts that apply at the trial court level, or to treat any document that is sealed or subject to public access restrictions at the trial court level with the same protections at the appellate level unless and until a party challenges the restriction in the appellate court.

The federal judiciary recognized in its solicitation “a long tradition — rooted in both constitutional and common law principles — of open access to public court records.” However, the judiciary also referred to some U.S. Supreme Court decisions and stated that “access rights are not absolute, and that technology may affect the balance between access rights and privacy and security interests.”

The Reporters Committee submitted comments to the judiciary, requesting adoption of the rules that permit the broadest possible access. The Reporters Committee’s comments cite numerous public interest policy reasons for permitting broad Internet access to court records.

For example, the proposed rules would substantially limit access to criminal records, but criminal records are the types of records of most concern to the public. Employers check criminal records to ensure they do not hire people with criminal backgrounds. Parents use criminal records to screen child-care assistants.

Maryland recently considered similar restrictions on Internet access to court records, but abandoned the plan — at least temporarily — after receiving strong public opposition. The Associated Press, in reporting the opposition to the proposed rules, cited the example of Kathy Morris, a private detective in Harford County.

Morris used electronic access of court records to perform background checks of a client’s potential babysitters and learned one was a convicted child molester. The Maryland judiciary also received opposition from bankers, apartment managers, nuclear power plant officials and other employers who regularly access court records electronically.

Each state has dealt differently with the issue of electronic access to court records, but common issues arise in each instance. On one hand, officials seem to recognize that court records are public records, which should, in theory, be readily available. If the records are available in a file room, then they should be available over the Internet, once the technology for such access has been established. On the other hand, officials worry that the speed, efficiency and anonymity of the Internet create problems that have not existed with paper files. Privacy and security concerns are most often cited. Specifically, officials worry that the availability of Social Security numbers, financial information and health records sometimes contained within court records.

Despite some states’ concerns, many have established Internet access to court records without incident, although the extent of available information varies.

Florida has developed the most open and accessible system, allowing electronic access to court records to the same extent as at the courthouse. However, Florida has a long history of broad open records laws, and in fact, considers public access to court records a constitutional right under the state constitution. (Fla. Const. Art. I, Sec. 24)

In some courts, anyone can check dockets, but cannot access actual documents. In a sample search of bankruptcy court documents in Virginia, the Reporters Committee obtained a list of all the actions taken in a debtor’s case and established that his debts had been discharged, but was unable to download the actual bankruptcy petition listing the debtor’s assets and creditors.

Colorado allows Internet access to all state courts, for civil or criminal records, but charges a fee for access. (www.CoCourts.com)

The state of Wisconsin also has established a Web site (ccap.courts.state.wi.us/internetcourtaccess), which allows public access to all records available for inspection under the state Open Records Act. However, not all of the counties participate fully in the program. Also, the Web site is subject to the same records retention time limits as paper files, so the database is not unlimited. The service, however, is free and allows numerous search methods, such as by name, county, prosecutor’s name and other identifying criteria.

Some states have established complex and restrictive rules for determining who may access court records electronically, giving great weight to “privacy” concerns. Washington and Alabama, for example, require citizens to apply for Internet access, requesting their names and the intended use of the information. The courts exercise discretion in releasing court records based on the user’s identity and intended use. (Alabama Rules of Judicial Admin., Rule 33; Judicial Information System Committee Rules of the State of Washington, Rule 15)

Alaska and California are examples of states that have privacy provisions in their constitutions. As a result, those states must balance the traditional public right of access with constitutional privacy rights.

California has already indicated that it will limit electronic access to certain records because of the state’s privacy interests. In Westbrook v. Los Angeles County, a state court of appeal ruled that the state’s constitutional privacy right prevented the release of electronic information; specifically, the release of all the names of persons against whom criminal charges were pending in Los Angeles County. The court ruled that even though the information was available in individual paper records at the courthouse the state did not have to release all the information pursuant to a generalized request.

Alaska, on the other hand, has fewer restrictions. The state’s rules generally allow public access to electronic records, except for employee information, preliminary draft of documents by judicial officers, attorney work product and matters required to be kept sealed or confidential under state law. (Alaska Admin. Rule 37.5)

Other states, such as Arizona, are considering rules regarding electronic access, and they seem to be carefully considering all sides of the issue. Arizona, for example, has assembled a panel of advisers that includes lawyers, media personnel and others to discuss the issue.

The question of providing electronic access to court records raises subsidiary issues as well. Primarily, the courts must address whether, and to what extent, they will allow access to electronic records as the courts shift from paper files to an automated system. Courts that now restrict Internet access to electronic records frequently justify such limitations because a person can come to the courthouse to see the records in person, if such information is truly needed. As courts move away from paper filing, such justification will no longer be valid.

Also, the courts must decide whether compilations of information will be available. Obviously, electronic storage of data allows a person to quickly search records and compile relevant data. Traditionally, a person would need to rummage through piles of paper files to amass such a compilation.

While California has ruled that compilations are protected by privacy concerns, Ohio has taken the opposite approach. Its courts ruled that compilations must be released, as its public records law “does not require members of the public to exhaust their energy and ingenuity to gather information which is already compiled and organized in a document created by public officials at public expense.” (Cincinnati Post v. Schweikert)

Finally, courts must decide whether they will release internal documents, such as e-mail messages and internal memoranda. Although such documents have not traditionally been considered “court records” open to the public, it is likely that the more progressive and open states will allow public access to such records.

As the federal and state judiciaries deal with this issue, journalists must take action to preserve the public right of access to court records. The Reporters Committee offers the following suggestions for journalists to ensure the right of access is preserved:

  • First, determine whether your state has already enacted rules regarding Internet access to court records or public access to electronic records.

  • If rules have already been enacted and they are unfavorable, contact media-friendly legislators to see whether they can pass amendments to your state’s open records laws to mandate public access to court records, including electronic records.

  • If rules have not yet been enacted, keep an eye on the judiciary to see whether such rules are proposed. Ask attorneys to let you know if they hear of any proposed rules.

  • Once rules are proposed, review them to determine whether they allow a broad right of access or whether they are restrictive. Oppose restrictive rules by submitting public comments to the rule-making authority.

As always, the Reporters Committee may be able to help. Call to report rules that restrict public access to electronic records at 1-800-336-4243.

Comments filed by the Reporters Committee with the Administrative Office of the U.S. Court can be found at https://www.rcfp.org. — AG