B. Courts Grapple With Policies on Electronic Access to Records

     The U.S. Supreme Court established beyond a doubt in 1980 that the public and the press have a First Amendment right to open criminal trials.  Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555 (1980).  While the Court has never explicitly extended that right to court records, the right to an open trial is meaningless unless the public also has access to supporting documents found in court files.  Court systems that never quarreled with this principle when all court documents were located in file cabinets are often recoiling in the face of stiff opposition from privacy advocates as they move into the information age.

     State and federal courts around the nation are rapidly developing systems to provide electronic access to their records.  Such access will make records searches quicker and more efficient for the press and public, and will greatly ease maintenance and storage problems for clerks of courts.  But technology is advancing much faster than the policies and practices necessary for managing the records.  And some courts are questioning in the name of privacy whether to allow such access.

     In September 2001, the Judicial Conference of the United States, a policymaking body for the nation’s federal court system, announced after nearly a year of study that some federal court records would be available electronically, giving hope to news media advocates who believe that technological advances will simplify the reporting process.

     The Judicial Conference approved an access plan for making documents in civil cases available electronically to the same extent they are available at the courthouse.  The plan exempts Social Security cases, and the judges said litigants should partially redact “personal data identifiers” such as Social Security numbers, birth dates, financial account numbers, and names of minor children.

     The policy also applies to bankruptcy cases.  But the Judicial Conference voted that the Bankruptcy Code should be amended to allow the sealing of bankruptcy files where privacy concerns are present and to allow the court to collect a debtor’s entire Social Security number but display only the last four digits in the records.  The conference also voted to ban electronic access to criminal cases at the present time.  But the group required a reexamination of the policy regarding criminal records within the next two years.  Under the federal plan, appellate cases will be treated in the same manner as cases at the lower court level.

     Recent developments nationwide show that state courts are slowly starting to warm to the idea of electronic access, but still show some hesitancy about allowing all information onto the Internet.

      The California Judicial Council, for example, has adopted rules of court that permit public access to digital court files.  The rules, which take effect July 1, 2002, are similar to the federal rules but preclude Internet access to criminal cases and some personal information.  Available information will include the name of the case, the date it began, a list of each action taken in the case, calendars, and indexes.  Particular documents from a case may be available if the person seeking the record knows the case name or number, but they will not be available through bulk distribution.

     Records in six types of cases will be available electronically at California courthouses but not remotely, due to privacy concerns.  These include family law cases, juvenile proceedings, guardianship and conservatorship proceedings, mental health proceedings, criminal cases, and civil harassment cases.  The rules do not require courts to use electronic access if they lack the resources or technological capacity, but a court must ensure that the records are available in some form.

     Maryland’s Committee on Access to Court Records recently proposed a plan that allows electronic access to court records.  The committee was formed in December 2000 in response to a public outcry opposing previously proposed rules that would have restricted access.

     The previous proposal would have limited dial-up access to the court’s electronic records to lawyers, police, and government agencies.  It would have required those seeking court records to state their name and affiliation and to prove that they had a “legitimate” reason to look at court records.  The decision to permit or deny access would have been left solely to the record custodian’s discretion.  The plan also would have limited an individual from viewing more than 10 records per day.  The committee abandoned the initial plan due to extensive public opposition.

     The new draft plan suggests that current access to records be maintained.  The Judicial Information System provides access to anyone who subscribes to it, including news organizations, businesses, and individuals.  The plan, however, does not contain specific rules for public access to court files.

      Florida has developed the most open and accessible system, allowing electronic access to court records to the same extent as at the courthouse.  Florida has a long history of broad open-records laws and, in fact, considers public access to court records a constitutional right under the state constitution.  Fla. Const. Art. I, Sec. 24.

     Colorado allows Internet access to all state courts for civil or criminal records, but charges a fee for access (www.CoCourts.com).

     Wisconsin has a Web site (ccap.courts.state.wi.us/internetcourtaccess) that allows public access to all records available for inspection under the state Open Records Act.  However, not all counties participate fully in the program.  Also, the Web site is subject to the same records-retention time limits as paper files, so the database is not unlimited.  The service, however, is free and allows records to be searched by name, county, prosecutor’s name, and other identifying criteria.

     Some states have established complex and restrictive rules for determining who may access court records electronically, giving great weight to privacy concerns.  Washington and Alabama, for example, require citizens to apply for Internet access, requesting their names and the intended use of the information.  The courts exercise discretion in releasing records based on the user’s identity and intended use.  Alabama Rules of Judicial Admin., Rule 33; Judicial Information System Committee Rules of the State of Washington, Rule 15.

     Alaska’s rules generally allow public access to electronic records, except for employee information, preliminary drafts of documents by judicial officers, attorney work products, and matters required to be kept sealed or confidential under state law.  Alaska Admin. Rule 37.5.

     Other states, such as Arizona, have assembled panels of advisers that include lawyers, media personnel, and others to discuss the issue.

     The question of providing electronic access to court records raises several other concerns as well. Primarily, the courts must address whether, and to what extent, they will allow access to electronic records as the courts shift from paper files to automated systems.  Courts that now restrict Internet access to electronic records frequently justify such limitations because a person can come to the courthouse to see the records in person, if such information is truly needed.  As courts move completely away from paper filing, such a justification will no longer be valid.

     Courts also must decide whether compilations of information will be available.  Obviously, electronic storage of data allows a person to search records and compile relevant data quickly.  Historically, a researcher had to rummage through piles of paper files to amass such a compilation.

     While California has determined that “bulk” compilations are protected by privacy concerns, Ohio has taken the opposite approach.  Its courts ruled that compilations must be released, as its public records law “does not require members of the public to exhaust their energy and ingenuity to gather information which is already compiled and organized in a document created by public officials at public expense.”  Cincinnati Post v. Schweikert, 39 Ohio St. 3d 603 (Ohio 1988). 

     Finally, courts must decide whether they will release internal documents, such as e-mail messages and internal memoranda.  Although such documents have not traditionally been considered “court records” open to the public, it is likely that the more progressive and open states will allow public access to such records.

-- Lucy Dalglish and Ashley Gauthier