Privacy and Access to Electronic Case Files:
Legal Issues, Judiciary Policy and Practice, and Policy Alternatives

~ by marbux

Tuesday, kh posted a link to a Wired article on concerns expressed by a Minnesota court about privacy rights threatened by easy web access to court documents. It set me off looking at related materials. Where I wound up was a December, 1999 report by the Office of Judges Programs of the Administrative Office of the United States Courts, entitled Privacy and Access to Electronic Case Files in the Federal Courts. (You can find a PDF version here and an earlier, more detailed May, 1999 PDF version here.)

To me, the report is primarily interesting for its discussion in Section 1 of case law on the public's right to access court records. In particular, that section addresses in part the public's right to access exhibits and discovery documents, a topic folks have previously asked about here on Groklaw. (Since the report was completed, Congress added a statutory requirement of public access to court records, enacted as section 205 of the E-Government Act of 2002, 44 U.S.C. 3501, et seq.)

However, that section is only the prelude to a broader discussion of a competing concern, the right to privacy in court records, and the relevant recommendations of the Judges Programs. Below, I've clipped the major outline of the report and the bulleted list of recommended topics for consideration.

A bit of background first. When the report was written in 1999, only a few courts in the U.S. made their case files available on the Web. It was a time when the PACER system now used by federal courts was in shakedown mode, and for most federal courts at the time that meant only case docket sheets were available online. But the coming clash between privacy rights and the right of public access was foreseen, leading to later adoption of a more terse federal court privacy policy.

(If you're interested in checking out PACER, you can access those services from http://pacer.psc.uscourts.gov/. If you have a credit card, you can register online. If not, you can request a registration there and your logon and password will be mailed to you promptly. PACER charges 7 cents per viewed page, going up to 8 cents in January, with quarterly billing if you account owes more than $10.00. If you'd like to do further reading on the subject of the report highlighted by this article, the National Center for State Courts has an excellent collection of online resources.)

Now, on to the overview of the 1999 report that was the first major federal court examination of the clash between online privacy rights and public electronic access to court records.

The Report's broad outline:

I. An overview of the law on access and privacy as it relates to case files.

II. A review of current judiciary policies on access to case files.

III. A discussion of the potential privacy implications of electronic access to case files.

IV. An initial outline of policy assumptions and alternatives.

• There is a strong legal presumption that the documents in case files, unless sealed, are public records available for public inspection and copying. This presumption is rooted in both constitutional and common law principles.

• The presumption of unrestricted public access to case files promotes public understanding of and confidence in the federal court system, and is consistent with current law and judiciary policies.

• The transition to electronic case files systems raises important legal and policy issues that are not addressed explicitly in current law or judiciary access policies.

• The public should share the benefits of technology, including more efficient access to case files.

• Litigants and their attorneys should have full electronic access to the files in any case in which they are participating.

• Other individuals and entities (i.e., the public, the press) should have a level of access to case files that is consistent with protecting privacy and other legitimate interests in nondisclosure.

• The traditional reliance on litigants to protect their privacy interests through protective orders or motions to seal may be inadequate to protect privacy interests in the new electronic environment.

• Access rights, whether based on the common law or on the Constitution, are not absolute. The inherent authority of the judiciary to control the dissemination of case files may justify restrictions on access to electronic case files to protect privacy.

• Making case files available to the public on the Internet may lead to the dissemination of information that would harm the privacy interests of individuals. It also may deter litigants from using the federal courts to resolve their disputes. Even assuming a very low incidence of abuse, it would be prudent to consider fashioning an access policy that minimizes the risk of harm both to individuals and to the federal court system.

• The judiciary has a special custodial responsibility to balance access and privacy interests in making decisions about the disclosure and dissemination of case files. Like other government entities that collect and maintain sensitive personal information, the judiciary must balance the public interest in open court records against privacy and other legitimate interests in nondisclosure.

Thus far, there seems to be broad agreement among rule-setting bodies that some personal information, such as Social Security numbers, should not be included in court files made available online. They also seem to agree that some entire classifications of cases should not be available online because of privacy concerns, such as divorce, child custody, and juvenile criminal cases. The kinds of cases that Groklaw follows, however, ordinarily do not involve privacy concerns beyond trade secrets and privileged documents, which are normally sealed by court order to the extent they are made a part of the official court file.