“Privacy in Court Records and County Records”

1. “Privacy in Court Records and County Records” Professor Peter P. Swire The Ohio State University Center for American Progress NACo Legislative Conference March 3, 2008

2. Overview • My background • Legal background on court openness and privacy • Case study on federal bankruptcy and privacy • Some other relevant federal laws • Privacy Impact Assessments & computer security • Conclusion

3. I. My Background • Currently: • Professor of Law, Ohio State University • Senior Fellow, Center for American Progress • I live in the DC area • “Privacy Year in Review” distributed to all IAPP members • “Information Privacy” – official manual for Certified Information Privacy Professional • www.peterswire.net

4. Chief Counselor for Privacy • Office of Management & Budget, 1999 to early 2001 • HIPAA medical privacy rule • GLB financial privacy law & rule • Chair, White House Working Group on how to update wiretap & surveillance laws • Safe Harbor with European Union • Government records, including study on privacy & bankruptcy records

5. I. Background on Public Records • 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)

6. Legal Openness • 6th Cir. “Trial court must set forth substantial reasons for denying” access to its records, U.S. v. Beckham, 789 F.2d 401(1986) • 5th Cir. “While other circuits have held there is a strong presumption in favor of the public’s common law right of access to judicial records, we have refused to assign a particular weight to the right.” SEC v. Van Waeyenberghe, 990 F. 2d 845 (1993)

7. Legal Openness & Discovery • Presumption of access stronger for filed than non-filed documents • Less clear on documents filed in connection with discovery • Some courts find no right to access to discovery documents submitted in connection with discovery motions, Anderson v. Cryovac, Inc. 805 F.2d 1 (1st Cir. 1986)

8. 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)

9. 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.

10. 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”

11. Accountability & Privacy • In Reporters Committee, in FOIA setting, the Court defined the public interest as “shedding light on the conduct of any Government agency or official”, not acquiring information about a particular private citizen • “The fact that an event is not wholly private does not mean that an individual has no interest in limiting disclosure or dissemination of the information”

12. II. Federal Bankruptcy Study • Released January 19, 2001 • Bankruptcy as a federal system • Then pending proposal to put all bankruptcy records on-line, with Internet access • Sensitive data • SSNs • Bank account numbers and balances • Credit card numbers • These are targets for thieves

13. Goals to Achieve • Fair and efficient administration of bankruptcy system • Needs of the parties in interest • Accountability to the public • Balance with privacy interests, especially for sensitive information • Fit with GLB and other relevant laws

14. Recommendation 1 • Public access to core information • Core information includes fact an individual has filed, type of bankruptcy proceeding, identities of parties in interest

15. Recommendation 2 • No general public access to sensitive information • SSNs, credit card numbers, loan accounts, dates of birth, bank account numbers • Schedules should be removed from public record that show detailed profiles of personal spending habits and debtors’ medical information • Care for non-filing spouses and others’ data

16. Recommendation 3 • Parties in interest should have access to much non-public information • This is important for exercising their rights and responsibilities • However, general re-use and re-disclosure limits for purposes unrelated to administering bankruptcy cases • E.g., don’t create database for resale gathered from parties in interest

17. Recommendation 4 • Incorporate Fair Information Principles • Notice • Consent for unrelated uses • Data available, though, for certain government uses • Access by the debtors • Data security and integrity • Accountability

18. III. Other Relevant Law • Protective orders • Longstanding judicial practice, upon proper motion • Trade secret cases • Many settlement agreements • Should we move from retail protective orders to more wholesale approach for categories of cases?

19. Other law • HIPAA medical privacy rule as a useful model • Sec. 512(d) -- judicial & administrative proceedings • Covered entities can only disclose medical records as permitted • 1st option -- notice to the individual and opportunity to object

20. Other law -- HIPAA • 2d option -- “qualified protective order” • Covered entity must seek agreement that the other party will keep data confidential • Records used only for the proceeding • Must be returned or destroyed after that • HIPAA does not apply directly to courts • But, strong national policy that privacy protection should be built into judicial and administrative proceedings

21. IV. Building Privacy & Security • Privacy Impact Assessments as a “best practice” for federal agencies, 2000 • E-Gov Act of 2002 requires PIAs for new computer systems • Dept. Homeland Security as one leader, with many posted on its web site • The Bankruptcy study was basically this • Special attention to SSNs and other breeders of identity theft • You might consider this for your new systems

22. Computer Security • FISMA mandates self-assessment for security, and risk-based security measures, for federal systems • Outsider attacks much more common for Internet than previously • Insider attacks, though, are likely bigger risk in many applications • HIPAA, GLB, Sarbanes-Oxley & general expectation for this as expected practice • You should likely be doing security & privacy analyses as part of new and upgraded systems

23. V. Concluding Thoughts • Some thoughts for court records: • Should the price of filing for bankruptcy be disclosure of your current bank account? • Should the price of filing for disability be Internet access to your lifetime medical records? • What rules are appropriate for information about minors and non-parties? • In short, reasons for privacy as well as openness/convenience

24. How Decide on Privacy v. Open Access? • FOIA and open records are crucial values • That said, here is a simple test about privacy: • How would you want the records of your own family treated? • Do you have the privacy and security practices in place that you would want for your spouse and children? • If you meet that test, you can be proud of your county • Thank you.

25. Contact Information • Professor Peter Swire • www.peterswire.net • www.americanprogress.org • www.thinkprogress.org • Moritzlaw.osu.edu