Open Season

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14Jul2010

Open Season

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courts of justiceIt used to be difficult to get court records. In 1944 the U.S. Judicial Conference set a $.40 fee per page, the equivalent of $3.81 today, and you had to go down to the courthouse to get it. Now, with electronic access, you can do the same from your PC for $.07 per page, and you don’t even have to wait for the clerk to pull the file.

While this is cheap and convenient, it also raises significant confidentiality issues. There has long been a presumption that any papers filed with the court, unless sealed, were public record.

“It is clear that the courts of this country recognize a general right to inspect and copy public records and documents, including judicial records and documents. . The interest necessary to support the issuance of a writ compelling access has been found, for example, in the citizen’s desire to keep a watchful eye on the workings of public agencies, and in a newspaper publisher’s intention to publish information concerning the operation of government.” Nixon vs. Warner Communications (435 U.S. 589) [citations omitted.]

As stated in Nixon the purpose of the open access to the courts is to oversee the judicial process and ensure that it remains fair and impartial. It is not so that people can gather information on the litigants.

Congress recognized a similar distinction when establishing the Freedom of Information Act (FOIA). It exempted nine categories of documents from the FOIA including “personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.”

Such documents, however, make up the core records of sexual harassment, workplace discrimination, personal injury, medical malpractice and other civil actions. While they once required a trip to the courthouse to view, they can now be as easy to access as looking up movie times on Yahoo. Spending just a few minutes on a bankruptcy site, for example, I was able to find someone’s name, address, social security number, creditors (including credit card numbers), employer, income, expenses and what kind of car they drive.

This privacy risk will continue to grow as the Federal Courts broadly implement the Case Management/Electronic Case Files (CM/ECF) over the next four years. Currently 16 courts are on the system, 35 are in the process of implementing it, and all federal courts will have it by 2005. So far the system has been used for over 500,000 cases and over 2 million documents. States have been implementing their own court record systems, often with similar broad public access.

The U.S. Judicial Conference is currently considering four methods of addressing these privacy issues in civil cases:

  1. All filed documents that are not sealed are available both electronically and at the courthouse.
  2. Create a separate “public” file containing only part of the case documents and make that available both electronically and at the courthouse.
  3. Establish different levels of access to certain electronic case information. (i.e., litigants and court would have full access but public only partial.) The full file would still be available at the courthouse.
  4. Amend the Rules of Civil Procedure to address privacy and security issues.

Similar methods have been proposed for criminal, bankruptcy and appellate courts.

Last winter and spring, the Judicial Conference took written comments and held hearings on these proposals. A report is being prepared which will be reviewed by the Conference at its September meeting.

Two hundred and forty-two comments were received, and the full text is available at www.privacy.uscourts.gov, along with the text of the proposed changes. Not surprisingly, private investigators, media and database companies were in favor of keeping all documents on line. Other responses ran from full disclosure to various methods of restricting access to some of the data.

At this point there is no indication as to which way the Judicial Conference will act. In the meantime, it is important to keep in mind that data that used to be tucked away in the clerks’ archives is now available to anyone with Internet access.  Extra care must be taken to obtain protective orders when needed. In cases involving particularly sensitive matters, it may even be best to use a private judge rather than risk having the data put on the Internet.

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