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.
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 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.