Privacy and Access to Public Records: A Modest Proposal Sol Bermann Center for Interdisciplinary Law and Policy Studies Moritz College of Law The Ohio State University

How I Got Here  May 2000: Ohio Court Futures Report Recommends creating statewide courts network and data repository  Formed Supreme Court of Committee on Technology and the Courts  First Two Major Issues to Address Connectivity Privacy and Public Access  Privacy and Public Access subcommittee Formed Made up of diverse set of stakeholder Identify the current body of laws, regulations and rules which determine the current operating environment for courts Conduct a review of data elements typically found in a public record Identify those data elements that might facilitate identity theft or be sensitive to public disclosure

Why Open Records?  Citizen access Shines light on workings of government Promotes government accountability  Predates the Constitution and is based on the history of public trials (and the avoidance of “star chamber” proceedings).  Openness promotes fairness (both real and perceived), confidence, and trust in the government as it exercises its duties.

That Was Then…  Historically, “practical obscurity” protected sensitive citizen data within records. Too much effort for average citizen to travel to record holder’s office to see paper record.  Much public record law developed around the notion of paper records and “practical obscurity.”

This Is Now…  Last 50+ years and rise of electronic records and the internet Public records can be, and often are, available 24/7 Threats, both real and exaggerated surrounding identity theft and public snooping of private facts  Technology has outstripped law

Just a Sample  Data exposure: Using software to redact personal data from public documents (ComputerWorld, April 13, 2006)  Counties across the U.S. posting sensitive (ComputerWorld, April 12, 2006)  VT: Privacy, security motivate moves to curtail access in Vermont (WCAX, March 13, 2006)  FL: Courts, Legislators grapple with internet access to public records (News4Jax, March 12, 2006)  ND: Privacy worries motivate requests to close records (Grand Forks Herald, March 11, 2006)  NH: Privacy Trumped for the Public Good (Seacoastonline, March 13, 2006)  MN: Data privacy issues, conflicts brew at capitol (WCCO, March 12, 2006)  Ohioans’ info online (Cincinnati Enquirer, March 3, 2006)

What To Do?  Maximize Access: Provide the broadest access to public records by placing them on the internet, unmodified from their current paper or electronic format. But this minimizes privacy.  Middle Ground: Review the data elements within the public record files and modify them to protect individual privacy interests (ex: redact social security numbers to help prevent identity theft).  Middle Ground: Create a bifurcated records system that would limit online access to certain private or sensitive information, but leave the complete paper or electronic record available for public review at the record holder’s office.  Maximize Privacy: Do not place any public records related to citizens online at all. But this minimizes access.

Fundamental Questions #1

One Set of Public Records  Electronic records and their traditional counterparts should be treated identically in terms of public access Doing otherwise is trying to force the genie back in the bottle. All records will soon be kept in electronic format. Why try to prevent the future? Forcing citizens to go to the courthouse for the “real” record undermines access and disadvantages many communities (rural, disabled, lower-income, attorneys/pro se; media) Cost savings and efficiencies in maintaining one record set Online records encourage more citizen access which leads to greater accountability  James Frey & Smoking Gun

Fundamental Questions #2 Should electronic records and their traditional paper counterparts be treated identically in terms of public access? Should electronic records and their traditional paper counterparts be treated identically in terms of public access? What information currently in the court file should not be public?

What Should Not be Public  Data Element Balancing test: Does the data in question shine a light on the workings of government?  If the answer is yes… Is the data in question of a sensitive nature, such that disclosure of the data can lead to potential individual harm?  If the answer is yes… Does the privacy interest of the individual outweighs the public’s need to know?  Rubber meets the road - state by state, possibly branch by branch decision- making

How to Get There  Creation of a diverse body to examine the issue  Identify the current body of laws, regulations and rules which determine the current operating environment for courts  Conduct a review of data elements typically found in a public record  Identify those data elements that might facilitate identity theft or be sensitive, and then…

How to Get There - cont’d  Work as a group to decide what data should be public and what data should be private  Draft a privacy and access policy  Send for public comment  Modify or draft legislation and/or governing rules  Put a structure in place to oversee and audit policy and implementation Data Officers Privacy Ombudsman

Conclusion  Public records policy is at a crossroads where the law is unclear and policy has not evolved with technology.  In order to best serve citizen and government interests in access, accountability and privacy, public records law and policy should be modified. Information not necessary to shining a light on the workings of government should be redacted from the public record. Public records should be the same online and offline.

A Few Useful Websites  Center for Democracy & Technology: Public Records: Access, Privacy, and Public Policy  Electronic Privacy Information Center: Privacy and Public Records -  Privacy Rights Clearinghouse: Public Records on the Internet: The Privacy Dilemma  Reporters Committee on Freedom of the Press: Tapping Officials' Secrets - local/tapping/index.cgihttp:// local/tapping/index.cgi  Southern Poverty Law Center: Fully Automated, Fill-in-the- Blanks State Open Records Law Request Letter Generator -

Contact Information Sol Bermann, Associate Director Center for Interdisciplinary Law and Policy Studies Moritz College of Law - The Ohio State University