Supreme Court rules to restrict electronic access to records

March 13, 2008  ·   In what open government advocates are calling a giant step backward for open access, the Oklahoma Supreme Court has released an order to restrict Internet public access to court documents, effective June 10.

The decision was reached “in an effort to balance the rights of privacy of individuals who use Oklahoma’s court system and public access to court documents,” according to the statement by Chief Justice James R. Winchester and four other justices.

Also included in the order is a mandatory redaction of personal data identifiers such as social security numbers and taxpayer identification numbers as well as partial/optional redaction of sensitive information when necessary.

The online restriction provision says, “[The courts] are directed to immediately limit Internet public access to court dockets only. The individual pleadings and other recorded documents filed of record in state court actions shall not be publicly displayed on the Internet.”

Robert D. Nelon, a First Amendment attorney in Oklahoma City, said that the order is ambiguous. “It’s unclear if clerks will have the obligation to remove documents that are already online,” Nelon said.

He is unsure of what the effects of the order will be, given the way it was released. “It caught everyone by surprise – there was no public notice, no hearings or solicited comments,” Nelon added.

Currently, 13 out of the 77 counties post documents online. Nelon’s basic interpretation of the order is that the court said, “Until we’re all on the same page, we’re not going to require or even permit anyone to put documents online.”

Justice Yvonne Kauger, joined by Vice-Chief Justice James E. Edmonson, disagreed with Judge Winchester in a partially concurring/partially dissenting opinion to the adoption of the order.

Kauger stated that she does not have issue with the redaction of the personal data identifiers from the court documents. “What I disagree with is the instantaneous restriction of public access to current public court documents online. The court made this decision with input only from the court clerks, others directly affected by the decision – the bar, the bench, the legislature and the public were not consulted,” she wrote.

Nelon agreed with Kauger. “In terms of ease of access, this will greatly impede the ability to look at documents,” Nelon said. He noted that it is obviously much more convenient to check the status of a case or look at a document online that to go to a court house that may be in a different county.

Kauger concluded her opinion by suggesting that allowing some counties to post the documents online would allow them to work out the “kinks” sooner rather than later. If the entire state makes the records available on the Internet, the grand scale of the test may present problems, she said.

“Oklahoma was ahead of the game when it came to providing information online,” Kauger said. “Why would we suddenly want to move to the end of the line to wait and follow other states? This is an egregious example of throwing the baby out with the bathwater.”

(In re: Privacy and Public Access to Court Documents) — Alanna Malone

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