explained: "Any benefits of public remote electronic access to criminal files were outweighed by the safety and law enforcement risks such access would create. Routine public remote electronic access to documents in criminal files would allow defendants and others easy access to information regarding the cooperation and other activities of defendants." Some of the states, however, have decided that access to criminal dockets is in the public interest. The report of Arizona's Ad Hoc Committee to Study Public Access to Electronic Records observed: "Criminal cases should be the most constitutionally accessible. The public has a First Amendment right to attend criminal trials and to access criminal records. Those who are hailed into court on criminal matters may not properly assert a privacy interest that invalidates public access to those records. A public trial means that the accused must publicly defend himself, and any information that he may submit to the court becomes a public record. Likewise, the public has a strong interest in ensuring that those who commit crimes are properly convicted and also in ensuring that those who are innocent are released."

Those states, like Arizona, which are providing greater access to criminal records, are still limited essentially to docket information, not to the substance of the records.

A larger part of the problem with criminal records is that, as court information begins to flow more commonly in electronic form, there is an immediacy to when information becomes available that could cause potential problems if sensitive information went from reception by the court to disclosure to the public before it could be reviewed. But some of the problems mentioned in the Judicial Conference report -- such as the danger that defendants might be able to find out about cooperation by co-defendants by even knowing of the existence of a sealed document -- would seem to be the same in electronic form as in paper form. Assuming that the existence of the sealed document is on the public record, a defendant can find it in the courthouse as well as on the Internet. These kinds of issues bring up a larger policy debate: what records should properly be on the public record and, more basically, what is a public record?

More than a decade ago the Supreme Court, in Dept. of Justice v. Reporters Committee, found that there was a qualitative difference between public record information kept in many different, often obscure locations, and the exact same information when compiled in electronic form. The court reasoned that the ease of access to electronically compiled personal information, even in a public record, raised greater privacy concerns. Many of the states are addressing this problem by making electronic data available on a file by file basis rather than in bulk form. In other words, an individual can view a file only if he or she knows something about the file -- its docket number or the names of the parties involved, for instance. This clearly allows courts to manage access to bulk data, and although it is a potential privacy problem, it is not quite the same problem the Supreme Court was addressing. However, bulk data users, such as credit companies, have a history of using court records for their wealth of personal information and bulk electronic data would certainly be easier on them than the old-fashioned practice of sending employees to the courts to read through and copy new filings.

Coming to a Consensus

The courts are coming somewhat late to the access and privacy debate. Government agencies have been coping with these problems for years under the Freedom of Information Act or the state equivalents. But the analogy may end there. Although open records statutes create a right of public access, subject to specific exemptions, to records that were not presumptively public before, court records have traditionally been considered public unless sealed or exempted by statute. In other words, court records were open for the taking and it has been the switch to electronic access that has forced the courts to consider what information should not be presumptively public. Borrowing heavily from existing open records policies in the executive branch, the courts are slowly but surely finding their way to consensus on the issue.

Harry Hammitt is editor/publisher of Access Reports, a biweekly newsletter on freedom of information, privacy and electronic dissemination.

Harry Hammitt  |  Contributing Writer