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Seventh National Court Technology Conference Baltimore, Maryland August, 2001 Education Article
Courts Online - Privacy and Public Access in Australian and United States' Courts
By Anne Wallace, Karen Gottlieb
I. Introduction
The transformation of court records from paper to electronic began over two decades ago with the introduction of basic office software, databases and case management systems. Over the past five years, the advent of electronic filing with digital signatures, the use of imaging technology and XML mark-up language, and the rapid development of the Internet have begun to further transform the court record. Some jurisdictions have already reached the point where there is a seamless integration from electronically filed documents to electronic court files which are available to be used, in that form, in the courtroom. Courts in Australia are following the lead of the United States in implementing these systems, and their use is predicted to become widespread in coming years. [1]
Computerized records have already made it far easier to compile, search, retrieve and present data from court records. However, the most recent developments have the potential to greatly increase public access to information about court cases. Once documents are filed in electronic form, they can be made available for the public to search on the Internet, via the court’s website, or a third party service provider. As several US judicial bodies, including the US Judicial Conference, the Conference of Chief Justices and the Conference of State Court Administrators, have identified, the transition to electronic case file systems raises important legal and policy issues that are not addressed explicitly in current law or access policies.
Courts are being challenged to develop policies that establish a framework for public access to court records in the age of electronic communication while protecting individual privacy. Public access and privacy are complementary, not competing, goals. Rotenberg, an American legal scholar on privacy points out, "[t]he Congress of 1974 that both adopted the Privacy Act and strengthened the Freedom of Information Act knew better. Private records should be kept private, used only for limited purposes, they said. Public records should be made widely accessible. That there may be overlap between public and the private does not diminish the essential importance of these principles."[2]
How to achieve this division of private records from public records is being debated in courts in Australia and the United States at both state and federal levels. Any consideration of policy must begin with an understanding of the legal requirements regarding public access and privacy rights. Although there is some statute and case law governing access to court records in both the United States and Australia, the major responsibility for controlling access rests with courts.
II. Legal Framework and Access Policies
A. USA
The bedrock of the US legal system is the Constitution and the Bill of Rights. The First Amendment prohibits governmental restrictions on the freedom of speech and encourages the free flow of information. Americans believe that open access to public records is the cornerstone of democracy and is needed to protect against secret government activities--"[s]unshine is the strongest antiseptic--its rays may penetrate areas previously closed."[3] How much of this philosophy of openness in governmental activities extends to the third branch of government, the courts?
This legal doctrine should lead to a very open system of public access to court records. And that is what has
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happened. The US courts have recognized a general common law right to inspect and copy public documents and records of the judiciary at both the state and federal levels.[4] There is a strong legal presumption that the documents in case files, unless sealed, are public records available for public inspection and copying.[5]
In the United States, federal statutory provisions that govern access to public information do not directly govern court records.[6] Both the federal Freedom of Information Act (FOIA)[7] and the federal Privacy Act[8] only apply to government records emanating from agencies in the executive branch. All the individual states have an open records act,[9] but not all these statutes expressly govern court records.[10] Recent efforts to enact legislation that is protective of privacy in court records have been uneven.[11] Examples of privacy protective bills that died in committee in 2000 include a California bill making divorce records confidential and an Indiana bill allowing victims of domestic violence to obtain confidential addresses for the service of process and the receipt of mail. However, the legislators of Iowa, Vermont and Wyoming did enact laws keeping the address of a domestic violence victim confidential.
In practice, access is dealt with by the rule-making powers of the courts themselves. In his survey of United States' court access policies for the Sixth National Court Technology Conference (CTC6), Webster noted that polices in most US states contain a direct or indirect declaration of openness of court records, subject to certain exemptions and exceptions.[12] While a couple of states specifically list record types that are presumed to be open, in most states, the rules "indicate that court records are presumed to be open, then go on for several pages listing all of the records that are confidential, leaving one to wonder if anything is left that can be released."[13]
Electronic access to state court records, over the Internet, is currently available in 30 states.[14] Two states, Idaho and Oregon, provide electronic access to their US District Court records over the Internet. These services range from those that provide access to state-wide systems, to states where one or two courts provide individual electronic access. The most common form of access is to the court docket, a database of cases in which each case has a unique identifier and which contains details of the parties, the attorneys, the judge, the court, a schedule of actions taken or to be taken and scheduling information about preliminary applications and hearing dates. Some courts provide indexes to case documents. At the present time, very little information is available about the nature of the case itself. A number of courts also provide electronic access to court opinions and orders. A few allow access to imaged copies of documents on the court file.[15]
At the federal level, Public Access to Court Electronic Records (PACER), a new Internet-based case management and electronic filing website, is being implemented which will permit electronic access to US District, Bankruptcy, and Appellate Court case files and also allow the court to limit access to individual documents within each file.[16] Previously the service only was accessible by direct dial-up. Information available includes parties, participants, cause of action, type of suit, dollar demand, case event chronology, types of documents filed, and judgment or case status. There is a seven cents per page access fee for PACER on the Internet. Over ninety courts will be accessible by the end of 2001.[17] A number of federal courts are currently allowing access to imaged documents on the court file.[18]
Many US state courts and the federal courts have allowed electronic access to their records without seeing a need for new policies to replace those based on public access to paper records. There has been a change in climate, though, in the past several years and both federal courts and many state courts are reviewing their public access policies.
In 2000, the US Judicial Conference initiated a study of the privacy and security implications of providing electronic public access to civil, criminal, bankruptcy, and appellate court case files, with a view to providing policy guidance to the federal courts. Policy options ranged from maintaining the presumption that all filed documents in a civil case that are not sealed are available both at the courthouse and electronically, to more limited access for civil files, to no electronic public access to criminal case files.[19] The public comment period ended January 26, 2001 and 242 comments were received. Not surprisingly, insurance companies, investigative agencies, banking institutions, credit card companies and the media favor a very open public access system, while privacy advocates, academics and the public favor a more limited system. The final report from the Subcommittee on Privacy and Electronic Access to Case Files of the Court Administration and the Case Management Committee of the Judicial Conference is expected in late 2001.
A number of state courts also are formulating policies in this area. For example, Arizona created an Ad Hoc Committee to Study Public Access to Electronic Court Records in August 2000 "to examine the issues surrounding public access to computerized court records, including disclosure of bulk data, and develop
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recommendations to modify [Supreme Court] Rule 123, and to suggest additional rules governing access to information which may be contained within a computer program or other electronic media."[20] Arizona Supreme Court Rule 123, which governs access to electronic court records, presumes open access except for records deemed confidential by statute, rule, or court order. Rule 123 was promulgated in 1997 when it was not anticipated that the general public would have the capability to access court records over the Internet. After reviewing the issues, the committee recommended a more privacy protective electronic policy for sensitive data such as social security numbers and credit card numbers and non-accessibility by the general public of pre- sentence reports.
In contrast, Maryland’s public access committee proposed a more limited electronic public records policy that would not allow general searching by the public. Persons requesting electronic records are required to identify themselves and provide the court with the intended use of the records and to whom the information will be disclosed. Then, the court information officer has discretion in releasing the records based on an evaluation of five criteria; "[t]he specificity of the request, [t]he potential for infringement of personal privacy...," "[t]he potential for abuse or misinterpretation of the data...," "[t]he potential disruption to the internal, ongoing business of the courts," and "[t]he potential for benefit to a governmental or other public purpose."[21] This proposal was met with an outcry from private detectives, media attorneys, and credit agency owners.[22] Maryland’s public access policy has not yet been finalized.
Arizona and Maryland, along with Colorado, New Jersey, Utah, and Washington are the vanguard. Many states are now reviewing their public access policies in light of the changes brought about by the Internet. The Policy Subcommittee of the Policy and Liaison Committee of the Conference of State Court Administrators (COSCA) has prepared a draft white paper--Access to Court Records--to assist states that are reviewing their public access policies.[23] Additional information as to existing statutes, case law, and court rules regarding public access in the states is available from the National Center for State Courts’ public access clearinghouse website.[24]
B. Australia
Australia's federal Constitution does not contain a Bill of Rights and there is no constitutional equivalent to the First Amendment.[25] Similarly, there is no constitutional basis for asserting public access rights in any of the Australian states and territories that make up the federation. No common law right to access the court record has been recognized in Australia although the point does not appear to have ever arisen. In practice, the right of the public to access information about proceedings conducted in open court is generally accepted in most Australian jurisdictions,[26] although perhaps less emphatically so than in the United States.
A general public right to access to information held by public agencies has been recognized by statute in the Commonwealth and most states and territories.[27] Freedom of Information legislation creates a general right of access to public information in documentary form, limited only by exceptions and exemptions necessary for the protection of essential public interests and the private and business affairs of persons in respect of whom information is collected and held.[28] However, the legislation has little application to the courts. In most jurisdictions, it applies only to their administrative functions, with judicial functions exempt from its operation.[29]
There is little common law governing privacy issues in Australia[30] and only two jurisdictions have privacy legislation--the Commonwealth and New South Wales. Both those acts exempt courts within their jurisdictions from their operation, other than in relation to staffing or administrative matters.[31]
As in the United States, access to court records is largely governed by the rule-making power of the courts themselves.[32] Access policies in Australian courts vary considerably between jurisdictions. The most liberal provides for access in terms of a positive right, a prima facie presumption of access, subject to quite limited restrictions. [33] Another states a general presumption of access, but reserves a wide discretion, exercised by a court officer, to determine that a document should remain confidential to the parties.[34] Several courts follow the general US approach of stating or implying a prima facie presumption of access, but going on to enumerate material to which access is excluded, although the list of excluded material is not extensive.[35] Others adopt a presumption of access in favour of specific types of material; these may vary from the quite liberal to the quite restrictive.[36] Yet others provide lists of material to which access will be provided and lists of material to which access will only provided by leave of the court.[37]
Even in jurisdictions where rights are most clearly defined, most access provisions reserve an overriding discretion in the court, usually exercised by a Registrar, to grant or refuse access.[38] To the extent that grounds
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are specified for the exercise of that discretion, they are phrased in terms of "confidentiality" or the "interests of justice." Discretion exists as to the types of documents that can be disclosed, to whom and in what circumstances. Many discretionary actions are non-appealable and, consequently, there is little case authority in relation to their exercise.
A survey of the practical applications of these policies in 2000 noted that the way in which discretion is exercised can have a substantial impact on access policies. As a result, there are substantial areas where access rights in Australian courts are more similar than a comparison of the court rules would at first sight suggest. In practice, most courts proceed on a basic assumption of a right of access to information about proceedings held in open court.[39]
No Australian courts yet provide electronic access to filed documents, although most provide access, via the court web site, to courts lists (calendars) and judgments. One court recently announced plans to provide public access to transcripts on its website.[40]
In most courts the preferred mode of access to court files is by physical attendance and inspection and for hard copy rather than electronic copy. Some mail copies of documents and a couple have provided simpler types of information by e-mail. The only documents made available in electronic form to date are transcripts and judgments.[41]
No Australian court has yet articulated a policy in relation to electronic access to court records. Several are examining this question as they consider the implementation of e-filing. One has indicated that it hopes to make selected case information available over the Internet on the court’s website once e-filing is operational.[42] Another court has indicated that it will be examining the possibility of "tiered" access, whereby, for example, a party or its representative might have electronic access to almost all the Court file while a non-party would have electronic access to only some documents.[43]
C. Comparison of Legal Framework between United States and Australia
The following table compares and contrasts the legal framework of public access to court records in the United States and Australia.
Table 1. A comparison of the Public Access Legal and Policy Landscape in the United States and Australia.
United States Australia Presumption of Public Access Yes Yes to Court Records? Constitutional Right of Public Yes, 1st Amendment prohibits government Access to Governmental restrictions on freedom of speech and encourages No Records? free flow of information Federal Caselaw on Public Yes, Nixon v. Warner Communications, 435 US 589 No Access? (1978) Federal FOIA* Applicable to the Only administrative No, only executive branch Courts? functions of the court State FOIA* Applicable to the Only in one State, with Yes, in approximately 50% of the states Courts? exemptions State Court Rules on Public Yes, in all states except Yes, in approximately 60% of the states Access to Court Records? one State Statutes on Public In only 3 out of 50 states In one state Access to Court Records? State Caselaw on Public Yes, in approximately 35% Yes, in approximately 30% of the states Access to Court Records? of states and territories Internet Access to Federal Yes, PACER** service No Court Records?
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Internet Access to State Court Yes, 60% of states (either statewide or specific No Records? courts) Federal Policy on Public In process, Judicial Conference Report expected Under consideration Access to Court Records? late 2001 State Policy on Public Access Approximately 10% of states have a final or Under consideration to Court Records? proposed policy
* Freedom of Information Act ** Public Access to Court Electronic Records
III. Policy Development
If all that electronic records do is to replicate the paper court file in electronic format, why do we need to reconsider access policies? The answer to that question involves consideration of the differences in the way that information can be collected, processed and disseminated in an electronic environment. The application of existing policies in this environment may have quite different practical results to their application to the paper court file.
With the development of electronic databases:
z Access is much more convenient; data is even on Internet. z People who have no direct or legitimate interest in the case are able to easily obtain access to huge volumes of data. z The aggregation and compilation of separate data records into one database makes the data attractive to third parties such as marketers and information service brokers who package and sell the data. z There is far greater potential for abuse because anyone can access sensitive data found in the files.
As a result, there has been a growing debate in the United States as to whether existing court practices are adequate to protect privacy interests[44] or whether case files should be protected from unlimited public disclosure and dissemination in the electronic environment. As that debate progresses, technology is forcing us to re-think our concepts of both access and privacy.
A. Accountability of the Courts
Technology makes possible quicker and wider access, collection, compilation and dissemination of information and enables that information to be used in new ways.
The development of the Internet has been a powerful force for expanding access to information; what has been described as the "democratization" of information.[45] Courts are likely to experience similar pressure to that being experienced by other government agencies from a public that, increasingly, wants access to information in electronic form and wants more access to more information.
As the US Judicial Conference has noted, the presumption of unrestricted public access to case files promotes public understanding of, and confidence in, the court system.[46] This is echoed by Trial Court Performance Standard 5.2 that sets forth the goal that "[t]he public has trust and confidence that the basic trial court functions are conducted expeditiously and fairly and that its decisions have integrity."[47] There is a strong public policy argument that the public should share the benefits of technology, including more efficient access to public records. Faster and cheaper access can also enhance the courts’ accountability to the public.
Courts in Australia and the United States have not been slow to take up the unprecedented opportunity provided by new technology to enhance public understanding of their function. Courts in Australia are adopting the Internet as a key communication and distribution mechanism[48] and there has been enormous quantum leap in the development of court web sites over the past two years.[49] This follows the trend in the United States.
Courts have been urged to use accountability as an instrumental factor in developing their policies on public access and to strive to make decisions that favour accountability--both to court customers and to the public at
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large.[50] Accountability, of course, includes a consideration of the interests of court users, chief among which, for many litigants and witnesses may be a concern for their personal privacy.
B. Privacy Interests of the Individual
The advent of the cyber age has in fact led some to call into question whether privacy, as we know it, is still a relevant concept: "Is there any longer a private space, a personal sphere, from which solicitous State or acquisitive Commerce can be excluded? And do we still care much about privacy?"[51]
The answer in Australia would certainly appear to be 7quot;yes." A recent government inquiry into the possible establishment of an on-line network of medical records, attracted over 264 submissions from members of the public and interested organizations, with privacy emerging as a major concern. While court records may, because of their inherent status as a public record, occupy a different starting point on the privacy-access continuum, they can also contain much information of a sensitive, personal nature that litigants are compelled to disclose for the purposes of their litigation. They may also contain information that raises law enforcement and security concerns. [52] This information has been protected by the inherent barriers to general access presented by the paper file, [53] which constitutes a passive record, that is, one that requires interested parties to go to the courthouse and call it out for examination.[54]
Americans also are concerned about personal privacy. A telephone survey conducted in March 2000 on public attitudes toward uses of criminal history information found that nearly 90 percent of adult Americans are concerned about the possible misuse of personal information with 64 percent saying they were "very concerned." Surprisingly, 90 percent of survey participants say they prefer the state not use the Internet to post criminal history information that is already a matter of public record.[55] Another poll conducted by ABC News in January 2000 found similar results. Eighty-six percent of the respondents did not want driving records, marriage records, real estate purchases, and court cases publicly available on the Internet.[56]
On-line electronic access spells the end of the "practical obscurity" of most court records:
With total electronic access, it would be possible to access all of the documents on file with the court from any computer, and to search through them on any parameter. Public access means access to anyone; once information is found, it can be redistributed in any way, including over the Internet.[57]
The percentage of Australians with Internet access has increased dramatically over the past five years. In 2000, 47 percent of Australian adults (6.5 million) accessed the Internet.[58] In the United States, it is estimated that 40 to 80 million adults have Internet access.[59] More comprehensive and faster access means that information can be more rapidly and widely disseminated, which has further implications for privacy.
Courts in both the United States and Australia retain substantial discretion in relation to their powers to order that documents remain confidential and to prevent their improper use.[60] In exercising their discretion in relation to paper records, courts consider factors such as the possibility of prejudicial pretrial publicity, the danger of impairing law enforcement or judicial efficiency and the privacy interests of litigants or third parties.[61]
However, on-line access to court records raises the possibility of more widespread dissemination of personal information in ways that may offend our notions of individual privacy and have adverse consequences for the administration of justice. Imagine the consequences, for example, making available on the Internet a transcript containing cross-examination of a rape victim?[62] or "[t]he specter of immediate and total public access to, and dissemination of, bare allegations in divorce, criminal, juvenile, or other case files."[63]
New technologies also allow electronic court information to be collated, compiled, retrieved and manipulated in new ways. Privacy concerns may result not from the nature of the document itself, but from the ways in which information in it may be used.
C. Refine the Discretion
In developing their policies for electronic access, courts will need to consider both the substantive content of their existing policies and the exercise of their discretionary powers to order that documents remain confidential. In the
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age of electronic access it may no longer be possible to operate satisfactorily with a policy that places a large and vaguely defined discretion in a court officer.
Those officers are likely to come under pressure from more informed users, operating in an electronic environment, who are likely to demand further information about the way in which discretions defined by reference to "confidentiality," "interests of justice" or the "administration of justice" are exercised. Pressure can also come from commercial interests, such as the media or secondary re-sellers of court information, that have a large financial stake in an open records policy. In the long term, more clearly delineated policies may also result in a saving of court time and enhanced accountability by encouraging consistency in decision-making.
In addition, access rules with broad and vaguely defined discretions sit fairly oddly in general legislative framework in the broader community. There has been a move, over the past 20 years, to more clearly define rights to freedom of information and privacy and to provide avenues for redress where decisions are made in alleged contravention of those rights. Subjecting the court file to general public records legislation would certainly be open to objection as interference with the independent administration of justice. The interests of justice require that the judiciary retain its inherent authority to control the dissemination of case files.
However, freedom of information and privacy legislation constitute the most recent legislative attempts to address the balance between concerns for individual privacy and the right to access information which is deemed to be in the public domain. An examination of the work done in these areas, particularly in relation to electronic access, may be of considerable benefit to courts in the development of their access policies. In the Australian context, the Commonwealth Privacy Commissioner’s Information Privacy Principles[64] and Guidelines for Federal and ACT Government World Wide Websites[65] are in line with international standards and provide useful guidance on electronic access. In the United States, guidance will be available in late 2001 from both the Subcommittee on Privacy and Electronic Access to Case Files of the Court Administration and the Case Management Committee of the US Judicial Conference and the Policy Subcommittee of the Policy and Liaison Committee of the Conference of State Court Administrators.
D. Issues To Be Considered in Formulating a Court Policy
1. Use of the data
The use of data collected from court records for commercial purposes has emerged as a major concern in the privacy debate. The availability of court data in electronic form makes it easier to collect and collate the data. Collection agencies, credit bureaus, media organizations, marketers, researchers[66] are all becoming aware of the possibilities opened up by electronic access and there has been increasing pressure on courts in the United States from commercial organizations to access court information in electronic form.[67] Once the information is available, the same technology enables it to be manipulated, compiled and disseminated in powerful ways. It is possible to search on the Internet against a person's name for a record of civil judgments, probate records, bankruptcy proceedings, criminal records and civil lawsuits in US courts.[68] Last year Australia’s first Internet- based data collection agency launched a national database of criminal convictions.[69]
Several courts in the United States are currently considering whether restrictions should be placed on the subsequent use of data obtained electronically from court records.[70] Concerns about the potential use of information for commercial purposes have led some to suggest that courts should allow differential access rights for commercial service-providers. Others argue that differential access rights for electronic information violates the First Amendment. While First Amendment rights are not an issue in Australia, there is a cogent argument that court records are public information and that if information is now available in paper form there can be no public policy reason for restricting access to the same information in electronic form.[71] An access policy, to be fair and equitable, should surely be applied equally as between various categories of non-parties. Provided it is lawful, should the use that a person intends to make of the information be a relevant factor?
In Los Angeles Police Department v. United Reporting,[72] the US Supreme Court found that states can exercise discretion in releasing information from government records to secondary re-sellers of information even when the records routinely are released to the media and others. United Reporting had sold lists of names and addresses of arrestees to attorneys, insurance companies, alcohol counselors, and driving schools, but an amended California law prohibited the practice. The court held that the California law was an example of government officials denying access to information in their possession, rather than a law infringing upon the First Amendment. There are over 80 laws nationwide that deny information for commercial use in the United States.
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Some courts have already adopted a practice of dividing the public into various categories for the purposes of formulating policy on the types of information they may receive.[73] For Australian courts, who need not be troubled about First Amendment issues, this is likely to be a solution which has some appeal. However, courts should ensure that if they do distinguish between categories of persons for the purposes of its access policy, this policy and the basis for it are clearly articulated and, preferably, subject to some consultation with relevant user groups.
As an initial step, courts may need to make it clear that they do not consent to the indexing of their databases by other websites and have taken measures to try and prevent this. They might also warn users about the legal limitations on the use, publication and dissemination of some personal information contained in the databases and reserve the right to exclude access by users or sites that breach those laws.[74]
2. Form of the data
By way of further preventive measures, the courts may need to consider carefully the form or context in which data is presented.[75] It has been suggested that courts should not provide electronic access to full text of legal documents because this will make it much easier for commercial organizations to collate and aggregate information contained in them for commercial exploitation. On that view, the court system should make only indexes to such documents available, forcing interested persons to go to the courthouse and view the actual documents in paper form or on a screen. The practical effect would be to retain the existing logistical barriers to the collection of large amounts of data.[76] Another solution, is for courts to make available on-line only the records relating to individual cases, rather than providing access to the court’s own aggregated databases.[77]
In the United States, internal court reports and other work product documents have not traditionally been considered public records. However, there have been calls for public access to this type of material in electronic form.[78] On a similar note, the US Judicial Conference Advisory Committee on the Rules of Civil Procedure held a mini-conference on electronic discovery in October, 2000 to decide whether there was a need to amend the Federal Rules of Civil Procedure to address issues relating to the discovery of electronic evidence. The majority of conference participants did not think there was a need to amend the Federal Rules in this case.[79]
Courts may, however, need to exercise caution in relying on the physical format of the record as a rationale for limiting access. The case of The Tennessean v. Electric Power Board of Nashville provides an example of a public authority being found to have an obligation to provide access to records where information is not maintained in the exact format requested.[80]
Courts may need to re-assess their publication practices concerning questions such as anonymisation, in light of the different accessibility of materials via Internet.[81]
3. The "Court Record?"
The way in which the "court record" is defined obviously has important implications for determining access rights. What documents constitute the record? A number of Australian courts are examining the concept of the "court record" as they consider the implementation of e-filing and this issue has also received attention in the United States.[82] The definition is obviously an important one, in terms of defining access. The practice, in many Australian courts, at least in civil jurisdictions, would be to confine the term to material that would have been accessible to anyone listening to the case in open court. That definition may exclude many documents that currently find their way onto the actual court file.
4. Access Agreements and Fees
Requiring users to log on and register to use a particular access service also enables the courts to impose requirements as a condition of that access, which users must indicate their assent. Conditions may require that the requester limit use of the material for the purposes stated in the agreement and indemnify the court for any liability that might arise through misuse.[83] Access agreements also help the courts track the identity of requesters and the information sought and to, to some extent, may operate as a screening mechanism.
From a privacy point of view, search fees may be a way of deterring those who seek to access records from mere curiosity or to use information for malicious motives. However, they may be unlikely to deter commercial
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organizations that will simply pass the fees on their customers as an overhead expense.
Courts may also wish to consider differential fees for different types of users.[84] However, they should be cautious in using access fees as a way of filtering requests. Fees that are too high may very well violate the principle of an open public record.
D. Policy Approaches
There are a number of possible approaches to formulating electronic access policies, several of which were referred to in the alternatives proposed for public comment by the US Judicial Conference in November 2000.[85]
1. "Hands off" approach
On this approach, the court would take the view that all records should be open to public review and access. The onus would be on attorneys to apply for protective orders, closing the file or parts of it, in specific cases where harm to their clients can be anticipated. It has been suggested that courts that favour a high degree of accountability would adopt this as a default position.[86]
However, as the US Judicial Conference noted, reliance on litigants to protect their privacy interests may be inadequate to protect privacy interests in the new electronic environment. It may also be unrealistic to apply such a policy to existing records, at least where it is proposed to make those records available electronically. Consistent with their public duty, courts may also need to reserve discretion to impose restrictions in the event of a clear showing of countervailing public policy or public harm.[87]
2. "Take control" approach
At the other end of the continuum is an approach that presumes that disclosure would be harmful in relation to certain types of documents, for example, material that was not taken or received in open court, or material that the court has suppressed from publication. On this approach, courts will also need to analyze their records to identify the different types of data they are storing electronically and make decisions about the level of access to be permitted to each of them. The US Judicial Conference proposed that both paper and electronic access be treated equally in this regard.
3. Differential Electronic Access Based on User
A third possibility, is to devise a "middle-ground’ approach that would provide access to the complete public case file at the courthouse, but would limit remote electronic access to certain private or sensitive case file information. [88] The US Judicial Conference suggested that courts establish "levels of access’ to certain electronic case file information, based on the identify of the person seeking access e.g., judges, court staff, parties and counsel would have unlimited remote access to all electronic case files, other persons would have more restricted levels of access. In their proposal, the complete electronic file would be available for inspection at the courthouse, as the paper copy is now.
4. Differential Access Based on Case Type
The US Judicial Conference’s paper also forms a useful starting point for considering the types of access most appropriate to different types of cases. The Conference noted that criminal case files, might be subject to a lower degree of access than civil cases because there may be much less of a legitimate need to provide access and they could readily be misused. It suggested that either the public not be provided with electronic access to criminal case files, or that limited access only be provided, with documents such as plea agreements, unexecuted warrants, certain pre-indictment information and pre-sentence reports excluded.[89]
The Conference also noted a number of options in relation to bankruptcy case files, an area of particular concern, because of the sensitive financial and identification data they contain. Interestingly, these included proposals that the courts collect less information and segregate sensitive information completely from the public file.[90]
In appellate cases, the Conference suggested that one option was simply to apply the same access rules to
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appellate courts that apply at trial court level. Alternatively, it was suggested that this position be maintained unless and until any restriction on a document is challenged in the appellate court.[91]
5. Access Based on Related Purpose/Reasonable Expectation
While privacy rights have often not been very clearly articulated in Australian law, the high level of discretion retained by many courts in relation to access to hard copy record is perhaps an indication of a more protective attitude to individual privacy than in the United States.
For that reason, an approach to electronic records access that begins with the perspective of the court user, rather than the court, may be preferable staring point. The Australian Federal Privacy Commissioner's Information Privacy Principle 2 may be one useful formulation. It allows the use or disclosure of personal information where the use or disclosure is for a purpose which is related to the purpose for which the information was originally collected and it within the reasonable expectations of the individual concerned.
The emphasis on "reasonable expectation" may require courts to consider the nature and extent of the information that they provide to court users about their records. What do litigants expect when their personal data is included on the court record? Do they understand the concept of an open public record? Do they know the basis upon access to personal or sensitive information may be restricted? Do they understand the extent to which electronic access to the public may make it possible for information that they may regard as personal to be distributed on that most public of media, the Internet? Do they appreciate that, as the US Judicial Conference has noted, other individuals and entities (i.e., the public, the press) have a legitimate interest in the court file?
It may also require greater involvement by court users in the development of policy, in the type of public comment process recently undertaken by the US Judicial Conference.
E. Guidelines for Policy Development
z Look to relevant standards/guidelines re: electronic access to public records, z Consult with court users, z Keep access provisions under regular review as technology changes, z More clearly define and delineate discretionary powers, and z Share information/experience with other courts.
IV. Summary and Conclusions
Although Australia and the United States differ in history and in their legal framework, it appears that the two countries’ attitudes on accountability of the courts and privacy interests of the individual are similar enough that public access policies to court records are developing along similar lines. The United States has begun the process earlier than Australia and is farther along, but it appears that the resulting public access policies to court records will not differ in major ways.
Privacy has become a major consumer issue in Australia and the United States, yet people are more aware of the possibility of privacy invasion to their credit report than to their court file. The expectation of privacy that Americans and Australians have in their court records is not known. The move to e-filing is likely to force courts to reformulate their access policies to suit the on-line environment and, particularly, to strike a balance between the interests of access and privacy that is more clearly articulated than it is now.
In developing their access policy, courts must decide which court records will be truly public and available in electronic from and which records, albeit public on their face, contain private, sensitive information and should not be available without limitations. Those courts which derive maximum benefit from the new technology will be those who enter on the task sooner rather than later.
[1] Victorian Parliamentary Law Reform Committee, Technology and the Law, Report (May 1999) [9.58-9.75],
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Queensland Law Foundation Technology Services Pty Ltd, "Council of Chief Justices" Electronic Appeals Project - Final Report’ (May 1998), Jeff Leeuwenburg and Anne Wallace, Technology for Justice 2000 Report, 2001, 8-9, Robert Plotkin, "Electronic Filing - Past, Present Future," Lexis One - Practice Management at .
[2] Marc Rotenberg, "Privacy Protection," Government Information Quarterly, Vol. (No.3) 11( 3) (1994), p. 254 cited in Who Knows: Safeguarding Your Privacy in a Networked World, Ann Cavoukian and Don Tapscott, McGraw-Hill, New York (1997) p. 41.
[3] State of Kansas ex rel Stephan v. Harder, 641 P.2d 366, 372 (1982).
[4] Nixon v Warner Communications 435 United States 589 (1978).
[5] Office of Judge’s Programs, Administrative Office of the United States Courts, Privacy and Access to Electronic Case Files in the Federal Courts (December 15, 1999).
[6] Jennen, Susan, Nelson, Jane and Roberts, Debra, Privacy and Public Access to Electronic Court Information - A Guide to Policy Decisions for State Courts (1995), 7, 9-10. Office of Judges Programs, above n 5.
[7] 5 U.S.C. § 552 (1994 & Supp. IV 1998).
[8] 5 U.S.C. § 552a (1994 & Supp. IV 1998).
[9] Compendium of State Privacy and Security Legislation: 1999 Overview, Bureau of Justice Statistics, U.S. Department of Justice, Washington, DC, (2000), Table 18, p. 38.
[10] For example, the Kentucky Supreme Court in Ex Parte Farley (570 S.W.2d 617, 1978) ruled that court records are not subject to the Kentucky Open Records Act.
[11] Steven M. Emmert, State and Federal Privacy Law, Handout at the Privacy 2000 Conference, Columbus, OH, 10/21-11/1 (2000).
[12] Lawrence P. Webster, Caught in Converging Technologies: The Modern Court Administrator and the Privacy/Access/Security Conundrum, paper delivered to the 6th National Court Technology Conference (CTC6), Los Angeles, September 14-16, 1999 at .
[13] Ibid.
[14] AK, AZ, CA, CO, CT, DE, FL, GA, IL, IN, KS, LA, MD, MN. MO, NC, NJ, NM, NV, NY, OH, OK, OR, PA, SC, TX, UT, VA, WA, WI.
[15] See links at National Center for State Courts, "Electronic Access Links" at .
[16] .
[17] Ibid.
[18] Office of Judges' Programs, above n 5, 6.
[19] "Request for Comment on Privacy and Public Access of Electronic Case Files" at .
[20] Report and Recommendations of the Ad Hoc Committee to Study Public Access to Electronic Court Records, March 2001 at .
[21] Draft Judiciary Policy on Public Access to Records, November 2000 at http://ctl.ncsc.dni.us/publicaccess.
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[22] Manuel Roig-Franzia, Uproar Over Access to Md. Court Records, Washington Post, p. B5, 12/14/2000.
[23] Available at ctl.ncsc.dni.us/publicaccess/states/multistate/multistate.htm.
[24] http://ctl.ncsc.dni.us/publicaccess/states.htm.
[25] Although the High Court has found an implied right to freedom of political communication and discussion in a number of cases: see Melinda Jones, "Free Speech Revisited: The Implications of Lange & Levy" [1997] 12 Australian Journal of Human Rights at .
[26] This paper concentrates on the right of the public to access court records in the High Court of Australia, the Federal Court of Australia and in each of the Supreme Courts of the various States and Territories.
[27] The exception being the Northern Territory: Freedom of Information Act 1989 (NSW), Freedom of Information Act 1982 (Vic), Freedom of Information Act 1992 (Qd), Freedom of Information Act 1989 (ACT), Freedom of Information Act 1991 (SA), Freedom of Information Act 1991 (Tas), Freedom of Information Act 1992 (WA), Freedom of Information Act 1982 (Cth).
[28] See e.g. Freedom of Information Act 1982 (Cth) S.3.
[29] Freedom of Act 1992 (Qd) ss 11(1)(e)(f), Freedom of Information Act 1991 (SA) s6 (1)&(2). Freedom of Information Act 1982 (Vic) s6, Freedom of Information Act 1989 (NSW) s 10, Freedom of Information Act 1991 (Tas) s 6 (4), s 5 sch 4, Freedom of Information Act 1982 (Cth) s 5. The FOI legislation in the Australian Capital Territory does apply to the court in the exercise of all its functions. However, it exempts disclosure of material that may prejudice the enforcement or proper administration of the law in a particular instance, prejudice the fair trial of a person or the impartial adjudication of a particular case or material the disclosure of which would be a contempt of court - Freedom of Information Act 1989 (ACT) s 37(1)(2) & s 46.
[30] Victorian Parliamentary Law Reform Committee, above n 1, [8.52]. Stanfield, Alison, "Cyber Courts: Using the Internet to Assist Court Processes" (Abstract, paper presented to WWW7, April 1998) .
[31] Privacy Act 1988 (Cth) s 7(1)(a)(ii) excludes acts or practices of a federal court from the ambit of the Act- except for s 8 (acts in relation to staff of an agency) and s 7(1)(b) (administrative acts). Privacy and Personal Information Protection Act 1998 (NSW) s 6.
[32] With the exception of South Australia, where the provisions are set out in the governing statute.
[33] Queensland Supreme Court - "subject only to any court order restricting access to the file or the document being required for the court's use" Uniform Civil Procedure Rules 1999 (Qd) s 980 & 981.
[34] General Rules in Civil Procedure 1996 (Vic) r 28.05. It has been said that: 'Rule 28.05 supports the view that most documents filed in the court are available for public inspection . . .': Butterworths, Williams - Civil Procedure Victoria, 1 (at 138) [I 28.05].
[35] High Court of Australia - High Court Rules 1952 (Cth) o 58 r 8. Tasmania - Rules of the Supreme Court 2000 (Tas) r 33.
[36] See, e.g. Supreme Court of New South Wales, "Practice Note 97 - Access to Court Files by Non-Parties" 9 March 1998, for a presumption of access in favour of material taken and received in open court.. For a more limited presumption, see Supreme Court Rules 1971 (WA) r 11(1)(d) which provides a presumption in favour of access for originating process and judgments.
[37] South Australia - Supreme Court Act 1935 (SA) s 131, and the Federal Court of Australia Federal Court Rules 1979 (Cth) o 46 r 6.
[38] Supreme Court of the Northern Territory, Practice Direction No. 13/2001 at . For a slightly more conservative
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variation see Supreme Court Rules 1938 (ACT) o 66 r 11 which provides an extensive list of documents that may be inspected only by leave of the Court and subject to an over-riding power in the Registrar to order that any document may remain confidential to the parties in the interests of justice.
[39] Collated survey results, copy on file with Anne Wallace. Most allow access to originating process and most pleadings, with the exception of interrogatories, answers to interrogatories and lists of documents. Judgments, orders and transcripts of proceedings are generally accessible unless they relate to particular types of proceedings (for example, guardianship, adoption) or have been the subject of confidentiality orders. However, there are substantial differences in the treatment of evidentiary material - including affidavits, proofs of evidence, expert or forensic reports. In relation to criminal proceedings, there is a substantial similarity between most jurisdictions in the nature and extent of information disclosed, notwithstanding differences in the provisions. Most jurisdictions make it possible for the public to obtain information about the charges laid, whether or not they release copies of indictments and charges but pre-sentence reports, prior convictions and victim impact statements are generally not released.
[40] Adam Creed, Australian State Unveils Online Legal System ' 25 April 2001, Newsbytes at ; see also NSW Land and Environment Court web site at .
[41] Survey results, above n 38.
[42] Tony de la Fosse and James Popple "Escaping the Relational Database Paradigm: Case Management in the High Court of Australia" Technology for Justice Conference Presentations, Australian Institute of Judicial Administration (CD ROM), (1998) and High Court of Australia, Annual Report 1997-98, www.hcourt.gov.au/98report/98ar.htm at 2 July 2000 (copy on file with author).
[43] E-mail, Philip Kellow, Deputy Registrar, Federal Court of Australia, Sydney to Anne Wallace, 1 May 2001.
[44] Office of Judges Programs, above n 5, 1.
[45] Richard Susskind, The Future of Law (1998) 55.
[46] Office of Judges Programs, above n 5, 8.
[47] At .
[48] Sandra Davey & Sue Scott, "Managing the Magic - Standards for Australian Electronic Legal Information" (draft update of article on this topic by Sandra Davey presented to the AIJA Technology for Justice Conference (23-25 March 1998) 11.
[49] Wallace & Leeuwenburg, above n 1, 4-5.
[50]Jennen, Nelson & Roberts, above n 6, 26.
[51] Professor Reg Whitaker, The End of Privacy, 2000 Scribe publications, referred to in Geoffrey Barker, 'Private space vital in cyber age' Australian Financial Review 31 July 2000.
[52] Above n 19.
[53] Jim McMillan, "Court Technology in 2007" (Paper presented at the Fifth National Court Technology Conference, Detroit,12 September 1997) 6.
[54] Web Advisory Committee of the Supreme Judicial Court of Massachusetts, Draft Report 20 March 2001, at .
[55] Privacy, Technology and Criminal Justice Information: Public Attitudes Toward Uses of Criminal History Information, Bureau of Justice Statistics, US Department of Justice and SEARCH, The National Consortium for Justice Information and Statistics, Revised 5/25/00. Available at .
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[56] John Marcotte, "Storm Warning’ (June 2000), Government Technology, .
[57] Donald Shelton, "Communicating with Lawyers on the Internet" (2000) 39(1) Judges’ Journal 26, 27, 27.
[58] Australian Bureau of Statistics, "8146.0 Household Use of Information Technology, Australia" 8 May, 2001 at .
[59] Donna L. Hoffman and Thomas P. Novak, The Growing Digital Divide: Implications for an Open Research Agenda, Paper presented at the conference, Understanding the Digital Economy: Data, Tools and Research, 5/25-26/99. Available at .
[60] Nixon v Warner Communications 435 United States 596 (1978).
[61] Office of Judges’ Programs, above n 5. For Australian case law see Re: Springfield Nominees Pty Ltd (1993) 38 FCR 217 [21], Central Queensland Cement Pty Ltd v Hardy (1989) 2 Qd R 509, Ainsworth v Hanrahan (1991) 25 NSWLR 155, Crest Homes Pty v Marks (1987) 1 AC 829, Morton v Mitchell Products [1996] FCA 1 (Unreported, Sackville J, 18 September 1996) , Ex parte The Queensland Law Society Incorporated (1984) 1 Qd R 166, 168.
[62] Victorian Parliamentary Law Reform Committee, above n 1, [8.39].
[63] Donald E Shelton, "Technology and the Judiciary-The Promise and the Challenge" (2000) 39(1) Judges’ Journal 6,7. Even less controversial material may raise objections, as the Australian legal information database AustLII discovered, when it was alleged to have breached the provisions of the Family Law Act and invading the privacy of individual litigants by publishing decisions of the Family Court on its website.
[64] National Principles for the Fair Handling of Personal Information issued under Privacy Act 1988 (Cth) s 14(1) in Feb 1998 at .
[65] See and .
[66] Jennen, Nelson & Roberts, above n 6, 2.
[67] John Greacen "Court Rules and Technology’ paper presented at CTC5 September 1997.
[68] See, for example , , , and .
[69] www.crimenet.com.au - see Ellen Cresswell, "Crime database swamped with queries" Australian (Sydney) 9 May 2000 at .
[70] Greacen, above n 67. Office of Judges’ Programs, above n 5, 7.
[71] Ibid. Office of Judges’ Programs, above n 5.
[72] 528 United States 32 (1999).
[73] Ibid, 32. In Colorado, the courts have divided the public into the following five categories: General Public, Paid Subscription Services, Court Research, Criminal Justice Cooperative, Case Parties and The Appointees, State Agencies and Court Experts.
[74] See, for example 'AustLII - Privacy Policy' at .
[75] Jennen, Nelson & Roberts, above n 6, 35.
[76] Ibid.
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[77] Greacen, above n 67.
[78] Jennen, Nelson & Roberts, above n 6, 31.
[79] Memorandum summarizing the Mini-Conference on Electronic Discovery, dated October 30,2000. Available from Karen Gottlieb.
[80] 979 S.W.2d 297 (1998).
[81] Stanfield, above n 30.
[82] Office of Judges Programs, above n 5, 2-3.
[83] Jennen, Nelson & Roberts, above n 6, 33-4. See also Webster, above n 12.
[84] See, e.g. Webster, above n 12, citing examples of policies which provide for fees to be waived or reduced where the data is sought for noncommercial purposes or where it is in the interest of the court.
[85] Above n 19.
[86] Jennen, Nelson & Roberts, above n 6, 9-10
[87] Ibid, 26.
[88] Office of Judges’ Programs, above n 5, 10.
[89] Above n 19.
[90] Ibid.
[91] Ibid
Biographical Information
This biographical information may date from as far back as 2001. Please keep in mind that it may no longer be accurate.
Anne Wallace
Anne Wallace is Deputy Executive Director at the Australian Institute of Judicial Administration.
Karen Gottlieb
Karen Gottlieb is a court consultant in Nederland, CO.
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