The California Judicial Council recently released a proposed rule regarding access to electronic court records. The rule defines what records will be available, permits courts to charge a service fee and includes a number of potentially controversial sections aimed at balancing public access and privacy concerns.

The proposal -- which represents the minority view of the Access Subcommittee -- mandates that all state courts offer electronic access to almost any record that is available to the public, if the court has the resources to do it.

Electronic access may be provided directly from the court through an electronic bulletin board system, or through a remote site such as those available on the Internet. However, access must be available to individuals through public terminals at the courthouse, and, when feasible, at other locations, such as public libraries.

The draft rule also calls upon courts to designate a public records administrator to be responsible for developing access procedures, particularly to an individual's own records, and to protect data tagged as confidential.

William Fenwick, a member of the Court Technology Committee but not of the Access Subcommittee, said the rule, if and when adopted, will be a "significant" development in the state's justice system because of the potential it has for fundamentally altering the nature of court records.

"The question is, are we lowering the threshold for access too dramatically," he said. "Having to go to the courthouse weeds out a vast majority of people who might be interested in viewing those records.

"Do we want to make privacy impossible for anyone who uses the court system?" asked Fenwick, a partner in Palo Alto's Fenwick & West. "There's a lot of material in court records, which is public information, but people still expect a certain amount of privacy."

One particular restriction in the rule -- regarding access to data destined to be expunged -- caused strenuous debate among subcommittee members and may generate equal dissension in the general public, he said.

"By statute, some types of court records are public and then are removed," Fenwick said. "If we offer electronic access to those records, whoever copied them will have them in perpetuity. A lot of people are having a huge struggle with this.

"There will be privacy advocates who will be very concerned about this," he said. "Their view is that we should not encourage the copying, storing and retrieving of court information.

"Hopefully what has been struck here is an appropriate balance between access and privacy," Fenwick said. "It's not something that was drafted overnight."

However, the majority of the 10-member Access Subcommittee argued against making so much material available electronically to the public, and were surprised when the Court Technology Committee adopted the minority position.

The proposed rule is available on the Internet at .

James Evans is the author of Law on the Net and Government on the Net, guides to online legal and government resources from Nolo Press. He can be reached at: .

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