1. “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

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

3. 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)

4. 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)

5. 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.

6. 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”

7. 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

8. 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?

9. 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

10. 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

11. 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?

12. 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.

13. 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

14. 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

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

16. 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

17. 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

18. 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?

19. 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

20. 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