2005 FOI update: Electronic access
Should “pajama surfers” get the same court records through their home computers that journalists or researchers get by digging and sifting through files at the courthouse? For those who say no, the distinction might lie in what the U.S. Supreme Court has called “practical obscurity.”
In 1989, the Court, favoring a privacy boundary, suggested that there’s a “vast difference between the public records that might be found after a diligent search of courthouse files, county archives, and local police stations and a computerized summary located in a single clearinghouse of information.”
The Virginia Coalition on Open Government, among others, believes the opposite.
Responding to a proposal by the National Center for State Courts and the Justice Management Institute to develop a model policy on public access to court records, the Coalition decried the idea that some records, readily seen in person, are “too public” if posted on the Internet.
“The possible confidentiality of records should be based on the information contained within the records, not the medium on which they are recorded,” VCOG Executive Director Forrest Landon wrote.
Here is a brief summary of some recent developments in the public debate over whether court records should be subject to remote access.
The federal judiciary is continuing its progress toward more widely available electronic-records access nationwide.
The Case Management and Electronic Case Files system, which started in 2001, was in use in 64 district courts, 80 bankruptcy courts, the Court of International Trade and the Court of Federal Claims, as of January, according to the Administrative Office of the U.S. Courts.
That included federal district and bankruptcy courts in Maryland and Washington, D.C. Delaware’s federal bankruptcy court also has the CM/ECF system installed but its federal district court does not.
In Virginia, the federal Western District Court had the system but the federal Eastern District Court does not.
In some instances, the system is getting mixed reviews. The News Journal of Wilmington, Del., reported in a January article that access actually is decreasing under the federal plan. Home addresses, birthdates and Social Security numbers will no longer be available, according to the article, and minor children will only be identified by initials.
The News Journal noted that the newspaper didn’t necessarily print that information in stories, but it was useful for confirming a defendant’s identity.
Lucy Dalglish, executive director of the Reporters Committee for Freedom of the Press, said the disclosure of court records minus key identifiers was a compromise for the courts, which took an initial position of not releasing any information electronically.
In a position paper on the federal changes, the Reporters Committee said that personal privacy “is a vague interest that, without attempts to concisely define what it means, cannot justify barring access to a wide range of information that is important to the public understanding of the court system.”
The Judicial Conference of the United States initially favored only putting civil cases online, but later decided to add criminal cases, too.
The threat of identity theft, by having personal information within easy reach, had been a concern — until a pilot program found little evidence of harm from electronic-record access.
Actually, greater access to personal information helps prevent identity theft, by allowing businesses to verify names, addresses, telephone numbers and Social Security numbers, according to the Coalition for Sensible Public Records Access, which favors commercial use of public record data.
California: The state’s Judicial Council voted 10-9 to post online court documents in high-profile criminal cases.
Florida: The state’s Supreme Court ruled that routine court records could be posted online, reversing an earlier decision. A 15-member commission is scheduled to report to the court by July 2005 on an electronic-access policy.
Kentucky: The courts have an online records system available only to police and attorneys. The public can use designated computers to get limited information from the county where the computers are located.
Maryland: Electronic court records were covered in a set of rules approved by state officials. Only the last four digits of Social Security numbers will be available. Four years ago, the state tried to sharply limit access to electronic records.
Minnesota: A state Supreme Court advisory committee made recommendations on an electronic records policy, to take effect on the first day of 2005. The committee recommended a review after six to 12 months.
New Hampshire: Was working on an online court record system. Last time, clerks didn’t have a way to flag confidential cases electronically, so trial courts refused public access to computerized dockets for nearly a decade.
New York: The Commission on Public Access to Court Records — chaired by noted First Amendment attorney Floyd Abrams — recommended that there be no more restrictions on electronic records than on paper records, paving the way for online access in that state. Certain narrow categories of information could be excluded from both types of records, the commission recommended.
Texas: A new proposal would allow bulk access to court records if the request is for scholarship, journalism, government or research, and if the identification of people in the files is secondary to the aggregate information. A sensitive-information form would allow Social Security numbers, dates of birth and other identifiers to be sealed by request, but not necessarily according to standards or with public notice.
Washington state: A new rule allows counties to post scanned documents online, but it was expected to be carried out unevenly, especially where fees were concerned.
Cincinnati: Images of domestic relations documents were ordered off the and Internet to be replaced by case summaries.
Pinellas County, Fla.: A moratorium had been imposed on posting any documents online except those of “significant public interest.” An access committee has until this summer to report to the state Supreme Court.
Washington, D.C.: The Superior Court was considering allowing remote access to records, with conditions. Only the last four digits of a Social Security number would be given, if required at all. Minors would be identified by initials. People would be identified by year of birth rather than date of birth. Only the last four digits of a financial account number would be included.
Richmond, Va.: A private company wanted to buy and post all public documents in the county. But at 50 cents per page for 1 million pages, the plan might have been too expensive. It also would have required a new freedom-of-information request every day.
For further information and a state-by-state look at issues involving electronic court records, see the Reporters Committee for Freedom of the Press.
Andrew Schotz is a member of the Washington, D.C., Pro Chapter of the Society of Professional Journalists.