When the U.S. Judicial Conference adopted a policy on access and privacy of court records last September, many observers viewed it as a crucial breakthrough in developing similar policies on the state level. There has been movement in many states, but progress overall has been slow and continues to be sporadic and hesitant. Last November, for instance, Florida, long considered a national leader in access to public records, decided to place a moratorium on Internet access to court records. Nevertheless, electronic access is beginning to blossom and there is general acknowledgment that some personal information that has long appeared in court records should be excised if those records are to be made available electronically.

At the first meeting of state experts last November, states such as Arizona, Vermont, Missouri and Washington appeared to be making substantial progress in providing electronic access to basic case file information and setting guidelines on access and privacy. But larger states like New York and Pennsylvania were still in the early stages of development, and though California has done considerable work on policy development in this area, it had not yet moved near the head of the pack. However, the Judicial Council of California announced in December that it would begin electronic access to civil case records in July while restricting access to criminal records and other cases in which sensitive personal information routinely appears.

Personal Choices

The issues are similar at the federal and state levels, but the categories of cases differ depending on the jurisdiction. The greatest repository of personal information on the federal level is found in bankruptcy courts, where Social Security numbers and a wide range of sensitive personal financial information routinely appears in the record. On the state level it is divorce and family law records that typically pose the greatest privacy problems.

Federal policy-makers have decided to delete or obscure certain personal information that appears in court records. This includes Social Security numbers, dates of birth, financial account numbers and names of minor children. For instance, instead of an individual's entire Social Security number appearing in a court filing, only the last four digits would appear on the record. Deletion of these data elements has also found wide acceptance at the state level. However, although the policy has now been articulated, executing it is considerably more complex.

The burden for assuring sensitive personal information is deleted will be placed on the litigants themselves, rather than the courts. It is logical to assume that litigants have much more specific knowledge of the kinds of personal information involved in their files and they have a greater incentive to assure it is protected than do the courts. But without detailed guidance on how to accomplish this goal, knowledgeable attorneys are likely to excise too much and uninformed attorneys and pro se litigants are likely to delete too little information. Beyond that simple prediction, however, is the burden this may create for government litigators who have a huge number of cases and will be charged with protecting sensitive information in each one. One way to maintain the confidentiality of the information would be to collect all pertinent personal and financial information on a cover sheet that would be kept separate from the filings themselves. This would allow the court to have access to the necessary personal information while keeping it out of the public record.

Pressing the Issue

When the federal policy was announced in September, the main criticism leveled at it by the press was that the Judicial Conference deferred any action of criminal case files for two years. There is no doubt that the policy will eventually capture criminal files, but the unwillingness of the federal courts to resolve the issue has sent mixed signals to the states. The Conference Committee's report

Harry Hammitt  |  Contributing Writer