“Court Records and Data Privacy: Online or Over the Line?” Professor Peter P. Swire The Ohio State University Consultant, Morrison & Foerster, LLP ARMA Conference November 16, 2005

Overview Legal background on court openness and privacy From 2000 to the present Special categories of data and cases Other thorny issues Conclusion

I. Background on Court Openness History of both legal openness and significant, practical obscurity History of legal openness Common law right “to inspect and copy public records and documents, including judicial records and documents” Nixon v. Warner Communications, Inc., 435 U.S. 589 (1978)

Legal Openness & 1st Am. 1st Amendment right to attend criminal trials, to guarantee freedoms such as speech & press, Richmond Newspapers Inc. v. Virginia, 448 U.S. 555 (1980) No Supreme Court ruling on 1st Amendment right of access to civil trials or court documents McVeigh case & denial of press requests for sealed documents, 119 F.3d 806 (1997)

Privacy Limits on Access Even where presumption of openness, courts may restrict access: “Every court has supervisory power over its own records and files, and access has been denied where court files might have become a vehicle for improper purposes” Nixon v. Warner Communications.

Practical Obscurity US DOJ v. Reporters Committee for Freedom of the Press, 489 U.S. 749 (1989) Recognized privacy interest in rap sheets & other information publicly available but “practically obscure” Court noted “the vast difference between the public records that might be found after a diligent search of courthouse files, county archives, and local police stations throughout the country and a computerized summary located in a single clearinghouse of information”

II. Federal Bankruptcy Study Released January 19, 2001 by U.S. OMB, DOJ, Treasury Bankruptcy as a federal system Then-pending proposal to put all bankruptcy records on-line, with Internet access To many, seemed a natural next part of e-Government

Bankruptcy Study Our basic point: Should all those bank account numbers and balances be put onto the Internet? Paper world Few thieves would go to courthouse to look up a bankruptcy file Electronic world If hundreds of thousands of files a year are online, accessible from home, would organized crime attack?

From Bankruptcy to Today Biggest area of consensus for limits as put court records online: SSNs Bank account numbers and balances Credit card numbers These are targets for identity theft Administrative Office of US Courts – 2001 20 states with policies posted Courtroom 21 conferences & web site

III. Approaches to Access Online Some systems (counties in Ohio?): Entirely open; same for paper and online Protective orders available in a single case Some systems & categories of data: E.g., bank account numbers Some systems & categories of cases: E.g., juvenile

Categories of Data SSNs, financial account numbers The “keys” that let a thief get into a person’s assets Large consensus that court system should not facilitate theft Disputes largely about technical means to redact – by clerks, litigants?

Categories of Data Confidential business information Medical records Trade secrets, etc., often subject to protective orders on case-by-case, perhaps category Medical records Sensitive data HIPAA and rules for closing medical records used in litigation (“qualified protective orders”) On the other hand, accountability and openness argue for public scrutiny for malpractice, products liability, etc.

Categories of Cases Federal courts: Social Security disability Confidential administrative record Contain many psychiatric/medical records Harm to individual vs. accountability/openness Not included in PACER (federal online system) Access provided at the courthouse itself

Categories of Cases Juvenile and family court Incredible diversity in local and state rules Current federal discussion for immigration cases Other categories discussed in the state reports

Some Thorny Issues Stage of litigation: If go online, which records? Discovery Motions (and attachments) Court proceedings

Thorny Issues When records become electronic, should they all be accessible on the Internet? Press wants full access Time-consuming to drive to the courthouse Reporting is less timely Courthouse closes, but news cycle doesn’t Still, access only at courthouse may be good solution for some sensitive materials SSDI – motions and summary on Internet

Thorny Issue The future of protective orders What burden to get the order? For what sorts of cases and data? How, if at all, change for the online world? See Sedona Conference Guidelines

V. Concluding Thoughts Previous legal regime of substantial openness Previous practical regime of obscurity and lower privacy risk What should be the courts’ approach to possibility that all court records easily searchable?

Some suggestions The shift to electronic records, electronic filing, and Internet access is the natural time to examine these issues Do a privacy impact assessment, or create a process, to create a better new system that meets all of the relevant goals

Finally Current debate natinally about these issues Openness for press, accountability, and knowledge of citizenry Caution for privacy, security, and confidential business information That debate can draw on the experience of the federal and other state systems An important topic now, where you can contribute