Seventh National Court Technology Conference Page 1 of 15 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 http://develop.ncsconline.org/WC/Publications/Summary/CTCArticles/CTC7/CTC7Artic... 11/19/2008 Seventh National Court Technology Conference Page 2 of 15 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 http://develop.ncsconline.org/WC/Publications/Summary/CTCArticles/CTC7/CTC7Artic... 11/19/2008 Seventh National Court Technology Conference Page 3 of 15 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.