Nowhere has the rise of the Internet posed so complex a challenge to public policy as it has to the tradition of public access to judicial processes and records. Traditionally, most court files are available to anyone willing to go to the courthouse and look at them.
But the Internet and other technological innovations have made court records available in electronic form, offering access that is easier and more widespread than ever before. Simply following rules developed in the era of paper files can result in controversy -- as Manatee County, Fla., recently discovered. The county made scans of all unsealed court documents available on its Web site
Many have argued that open courts are a fundamental aspect of maintaining a working democracy. Open court records produce accountability and public confidence in the operation of the judiciary, the operation of other government agencies and the uniform enforcement of laws. Only through public access, for instance, can citizens be assured courts are fulfilling their role of protecting the rule of law.
Yet privacy concerns certainly are legitimate. Information on the Internet is available internationally to virtually anyone, regardless of the person's purpose for seeking the material. Such information also can be compiled into entire databases and distributed independently without any access controls. Court documents often contain personal information of those found guilty of a crime, those found innocent, and even witnesses called to testify. Moreover, civil suits brought on the basis of unproven allegations frequently bring people into court, even when they have not acted improperly.
So it is not surprising that in the last few years, many state courts grappled with these issues, seeking the proper balance between public access, personal privacy and public safety -- all while maintaining the integrity of the judicial process. This resulted in different approaches in different states, none of which seem to resolve all concerns or provide a model example.
Potpourri of Solutions
New Jersey courts were among the first to explore these issues comprehensively. In 1996, the New Jersey Supreme Court created a committee that held public hearings to consider both privacy and public access, which resulted in a published report titled The Report of the Public Access Subcommittee of the Judiciary Information Systems Policy Committee. Although the Internet was not as developed as it is today, the committee considered many implications it would have.
"Practical barriers to information use and dissemination imposed by traditional paper documents disappear when information is stored in electronic bits and bytes, susceptible to manipulation and capable of being easily transferred around the globe via computer networks such as the Internet," the report said. "This qualitative difference between paper and electronic records gives rise to an argument that the dissemination of public records in computer readable form should be restricted."
Despite the clear recognition that Internet-accessible records could trigger abuses, the committee rejected the notion that "restricting access to nonconfidential court records is an effective or appropriate solution to a societal problem rooted in our information-fueled economy." Concerns about privacy, the report continued, were best dealt with legislatively through the enactment of laws controlling the use of publicly available data, similar to protections afforded by the Fair Credit Reporting Act.
The Vermont Supreme Court followed New Jersey and formed a committee; it also published "Rules for Public Access to Court Records" in 2000. Apart from integrating various previous policies on access, the committee also put forth the principle that different rules shouldn't exist for access to paper records versus electronic records. But in 2001, that rule was amended to say that record custodians have the authority to deny access electronically.
In 2000, Chief Judge Robert M. Bell of