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Hung Jury

State courts struggle to find balance between electronic access and privacy rights.

by / April 4, 2003
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 , but a public outcry soon led to their removal from the site, at least for the time being.

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
the Maryland Court of Appeals drafted an administrative order restricting access to criminal trial records to lawyers and court officers. Internet access to these records was unavailable at the time of Bell's order; however, the court offered dial-up access and access from terminals within the court building.

The order -- which received widespread bad press and public criticism -- eventually triggered a report from the Reporters Committee for Freedom of the Press, an organization formed to protect First Amendment rights. The committee's report -- Comments on Draft Model Policy on Public Access to Court Records, released in 2002 -- argued that access should be the same for paper and electronic court records, and that courts should not ask who wants the information or why they want it. The committee added that other state laws already provide criminal sanctions for identity theft, harassment, stalking and other crimes that result from information acquired from the Internet.

Arizona, on the other hand, took a different approach, and in 2000 released rules that focused largely on financial privacy. The rules specifically identified data such as Social Security numbers, credit card numbers and financial account numbers said to be private and confidential, and therefore, should be unavailable to the public in either paper or electronic form.

Washington state also restricted certain data elements, but in addition to financial information, included address and identity information as confidential. These, the state decided, should not be publicly available in paper or electronic form.

Meanwhile, California makes civil cases available on the Internet. Citizens also may electronically access other types of cases, such as criminal, family and mental health hearings, but they must walk into the courthouse to do so.

Many other states are now tackling the issue, so new approaches may emerge in the next few years.

New Guidelines
To provide the states direction in setting access policy, the National Center for State Courts and the Justice Management Institute, on behalf of the Conference of Chief Justices (CCJ) and Conference of State Court Administrators (COSCA), recently released recommendations for formulating access policies for court records.

"Originally, when they formed a committee, they were calling for a 'model policy' for all state courts," said Susan Larson, a lawyer with Boos, Grajczyk & Larson who has consulted with courts in several states on access issues. "However, as the drafting process and public hearings progressed, they changed that to policy guidelines for states. A lot of people had been hoping there would be some teeth or some mandates within this document. But really it is just a starting point for states to consider the various issues."

The document -- Developing CCJ/COSCA Guidelines for Public Access to Court Records: A National Project to Assist State Courts -- does not spell out exactly what should and should not be accessible electronically. It concludes that, ultimately, the issue must be settled by individual states within their own judicial and legislative frameworks.

Committee members also were split on how to approach the topic. "Many members of the advisory committee expressed the view that the presumption of openness is constitutionally based, requiring a 'compelling interest' to overcome the presumption," the report said. "Other members expressed the view that the law in this area is evolving."

Nevertheless, many principles advocated in the guidelines seemed to fall more toward openness of electronic records. The premise underlying the guidelines is that "court records should generally be open and accessible to the public," according to the report's final draft. "Court records have historically been open to public access at the courthouse, with limited exceptions. This tradition is continued in the CCJ/COSCA guidelines. Open access serves many public purposes."

Yet the guidelines do not suggest that all court documents be accessible on the
Internet. They recommend limiting electronic access to information such as names of litigants -- provided this is not restricted for a legitimate reason -- a register of actions filed with courts, hearing schedules, and judgment orders or decrees.

Information beyond that should only be available on site, the report said. Access to compiled information should be restricted to legitimate scholarly, journalistic, political, governmental, research, evaluation or statistical purposes. Also, that access should be controlled, monitored and possibly subject to legal conditions of use.

A Little Perspective
The Internet may be the latest technology to spark privacy fears, but it's certainly not the first innovation to raise alarm.

In the late 1800s, the emergence of photography and newspaper printing stirred concern over the potential threat to individual privacy. An article in the 1890 Harvard Law Review, co-authored by Louis Brandeis before his appointment to the U.S. Supreme Court, described the situation: "Instantaneous photographs and newspaper enterprises have invaded the sacred precincts of private and domestic life; numerous mechanical devices threaten to make good the prediction that 'what is whispered in the closet shall be proclaimed from the house-tops.' For years there has been a feeling that the law must afford some remedy for the authorized circulation of portraits of private persons, and the evil of the invasion of privacy by the newspapers ..."

Of course, these concerns faded over time, and the same may happen with many of the Web-related privacy worries. However, the pervasive reach of Internet information may also force some redefinition of privacy rights.

"Today, much of what generally passes for privacy is really anonymity," Larson said. "Many things people do in their day-to-day lives are not private so much as they are anonymous."

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Blake Harris Contributing Editor
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