1. Court Records and Data Privacy: Online or Over the Line? Professor Peter P. Swire Moritz College of Law The Ohio State University Judges Day 2005 October 27, 2005

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

3. I. Background on Court Openness History of both legal openness and significant, practical obscurity History of both legal openness and significant, practical obscurity History of legal openness History of legal openness Common law right to inspect and copy public records and documents, including judicial records and documents 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) 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) 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 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) 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: 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. 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) 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 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 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 Released January 19, 2001 by U.S. OMB, DOJ, Treasury Bankruptcy as a federal system Bankruptcy as a federal system Then-pending proposal to put all bankruptcy records on-line, with Internet access Then-pending proposal to put all bankruptcy records on-line, with Internet access To many, seemed a natural next part of e- Government To many, seemed a natural next part of e- Government

8. Bankruptcy Study Our basic point: Our basic point: Should all those bank account numbers and balances be put onto the Internet? Should all those bank account numbers and balances be put onto the Internet? Paper world Paper world Few thieves would go to courthouse to look up a bankruptcy file Few thieves would go to courthouse to look up a bankruptcy file Electronic world Electronic world If hundreds of thousands of files a year are online, accessible from home, would organized crime attack? 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: Biggest area of consensus for limits as put court records online: SSNs SSNs Bank account numbers and balances Bank account numbers and balances Credit card numbers Credit card numbers These are targets for identity theft These are targets for identity theft Administrative Office of US Courts – 2001 Administrative Office of US Courts – 2001 20 states with policies posted 20 states with policies posted Courtroom 21 conferences & web site Courtroom 21 conferences & web site

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

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

12. Categories of Data Confidential business information Confidential business information Trade secrets, etc., often subject to protective orders on case-by-case, perhaps category Trade secrets, etc., often subject to protective orders on case-by-case, perhaps category Medical records Medical records Sensitive data Sensitive data HIPAA and rules for closing medical records used in litigation (qualified protective orders) 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. 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 Federal courts: Social Security disability Confidential administrative record Confidential administrative record Contain many psychiatric/medical records Contain many psychiatric/medical records Harm to individual vs. accountability/openness Harm to individual vs. accountability/openness Not included in PACER (federal online system) Not included in PACER (federal online system) Access provided at the courthouse itself Access provided at the courthouse itself

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

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

16. Thorny Issues When records become electronic, should they all be accessible on the Internet? When records become electronic, should they all be accessible on the Internet? Press wants full access Press wants full access Time-consuming to drive to the courthouse Time-consuming to drive to the courthouse Reporting is less timely Reporting is less timely Courthouse closes, but news cycle doesnt Courthouse closes, but news cycle doesnt Still, access only at courthouse may be good solution for some sensitive materials Still, access only at courthouse may be good solution for some sensitive materials SSDI – motions and summary on Internet SSDI – motions and summary on Internet

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

18. V. Concluding Thoughts Previous legal regime of substantial openness Previous legal regime of substantial openness Previous practical regime of obscurity and lower privacy risk Previous practical regime of obscurity and lower privacy risk What should be the courts approach to possibility that all court records easily searchable? 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 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 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 in Ohio about these issues Current debate in Ohio about these issues Openness for press, accountability, and knowledge of citizenry Openness for press, accountability, and knowledge of citizenry Caution for privacy, security, and confidential business information Caution for privacy, security, and confidential business information That debate can draw on the experience of the federal and other state systems That debate can draw on the experience of the federal and other state systems An important topic now, where you can contribute An important topic now, where you can contribute