Public Access Rules Sup. R. 44 through 47

1. Public Access Rules Sup. R. 44 through 47 Presented by: D. Allan Asbury John VanNorman The Supreme Court of Ohio Office of the Administrative Director

2. History of the Public Access Rules • Privacy Subcommittee of the Advisory Committee on Technology and the Courts • Regulatory scheme for court records • Data elements exempt from public access • General Assembly, 2005 – proposed exemption to Public Records Act • Ohio Attorney General Opinion 2005-047 • Commission on the Rules of Superintendence • Two rounds of public comment 2007, 2008

3. Intent • The intent behind the Public Access Rules is found in the declaration that “[c]ourt records are presumed open to public access.” • Strikes a balance between a fundamental principle of openness and important privacy rights of individuals.

4. Definitions - Court Records • Consist of two distinct categories: 1. Case documents 2. Administrative documents

5. Case Document • Any document or information in a document (regardless of its physical form or characteristic, manner of creation, or method of storage) that meets either of the following conditions: • It is submittedto a court or filed with a clerk in a judicial action or proceeding • It is prepared by a court or clerk for a judicial action or proceeding

6. Case Document Automatic Exemptions • Case document does not include: • “Catch-all”: A document or information exempt from disclosure under applicable state, federal, or common law • A court has restricted public access under Sup. R. 45 (discussed later) • Certain juvenile records

7. Case DocumentAutomatic Exemptions - continued • Notes, drafts, recommendations, advice, and research of judicial officers and court staff • Ohio Courts Network

8. Case DocumentAutomatic Exemptions - Continued • “Personal identifiers”: • SSNs, except for the last four digits • Financial account numbers • Employer and employee identification numbers • Juvenile’s name in abuse, neglect, and dependency cases • Forms containing personal identifiers

9. Omission of Personal Identifiers • Requires parties to omit personal identifiers when submitting or filing a case document with a court or clerk • Requires the party to submit or file the personal indentifier information on a separate form. • Court or clerk not required to review the document to find personal identifiers • Court or clerk can not refuse to file because there are personal identifiers • Court or clerk can provide a form for placement of personal identifiers

11. Rule 45(E) - Request to Restrict Public Access • Who can request? Party or other person who is the subject of information in a case document. Court may also restrict on own order • How do they request? By written motion to the court • What can they request? Restrict access to the information or entire document, if necessary

12. Restricting Public Access Court must find by CLEAR AND CONVINCING EVIDENCE that the presumption of public access is outweighed by a higher interest.

13. Restricting Public Access – Factors to Consider • Court shall consider: • Whether public policy is served by restricting access • Whether any state, federal, or the common law exempts the document or information • Whether factors supporting restriction exist including risk of injury to persons, individual privacy rights, proprietary business information, public safety, and fairness to the adjudicatory process

14. Least Restrictive Means • When restricting access court must use least restrictive means • Redaction • Restricting remote access • Restriction for a specified time • Using generic titles or descriptions • Using initials or other identifier

15. Sup. R. 45(F) Request to Permit Access • Who may request? • Any person may request access to information or documents that have been restricted or redacted • How does a person request access? • Written motion

16. Permitting Access - Factors • Court may allow access if it finds by CLEAR AND CONVINCING EVIDENCE that the presumption of allowing public access is no longer outweighed by a higher interest. • Court must consider: • Whether the original reason for restricting access no longer exists or is no longer applicable AND • Whether new circumstances have arisen which would require restriction

17. Administrative Documents • Document or information in a document created, maintained, or received by a court that records the administrative, fiscal, personnel, or management functions, policies, decisions, procedures operations, organization, or other activities of a court.

18. Administrative Document – Automatic Exemptions • Administrative document does not include: • Exempt under state, federal or common law or exempt under the Rules for the Government of the Bar • Personal identifiers • Security plans, reviews • Administrative or technical security record-keeping

19. Administrative Document – Automatic Exemptions (cont.) • Test questions, scoring keys and licensing, certification or court employment exam before the exam is administered or if same exam will be administered again • Computer programs, codes, filing systems and software owned by or entrusted to a court • OCN and data feeds

20. Forms of Public Access • Two different methods: • Direct access – inspect and obtain a copy of a record at all reasonable times during regular business hours at the place the record is available • Remote access – may offer electronic access (search, inspection, copying) at a place other than where record is available

21. Direct Access • Promptly acknowledge request • Respond within reasonable amount of time • Except for bulk distribution of information, permit requestor to have records duplicated in any of the following manners: • Upon paper or; • Upon same medium to record is kept or; • Upon any other medium court or clerk determines record can be reasonably duplicated as integral part of normal operations

22. Direct Access (cont.) • If requested, must mail, transmit or deliver copies • May adopt policy limiting the number it will mail, transmit or deliver per month unless requestor certifies not using them for a commercial purpose (does not include news reporting) • Can charge actual cost and require a deposit

23. Remote Access • The document or information must look the same as the document or information available by direct access • Can exclude lengthy exhibits or attachments if give notice • Does not require court or clerk give remote access to other or all documents in case file • Can make available record that exists only in electronic form (e.g. on-line journal)

24. Sup. R. 46Bulk Distribution • Distribution of a compilation of information from more than one court record • Not required to provide if must make a new compilation • Person can request bulk data be on • paper • same medium on which kept OR • upon other medium if clerk or court determines data can be reasonably duplicated

25. Bulk Distribution Timeliness of Information • Include time or date stamp on bulk distributions • Person receiving the bulk distribution responsible for keeping information current • Delete inaccurate, sealed, or expunged information

26. New Compilations • Collection of information obtained through the selection, aggregation, or reformulation of information from more than one court record. • Discretionary with the court or clerk • Appropriate use of resources and consistent with principles of public access

27. New Compilations (cont.) • May recoup actual costs and onetime personnel costs • Court must maintain the compilation and upon future requests may only recoup actual costs

28. Miscellaneous Provisions • Sup. R. 46(B) • If court contracts with IT support provider, the contractor must: • Comply with the public access rules, • Agree to protect confidentiality of records • Notify the court or clerk of all requests for bulk distribution and new compilations • Acknowledge it has no ownership or proprietary rights to the records

29. Miscellaneous Provisions (cont.) • Sup. R. 47(B) – remedy for denial of access is writ of mandamus • Sup. R. 47(C) – liabilities, immunities and defenses of R.C. 9.86 or Chapter 2744. apply • Sup. R. 47(D) - Commission will do ongoing review of rules

30. Application • Effective Date – July 1, 2009 • Case documents • Only applies to case documents in actions commenced on or after the effective date • Actions commenced prior to effective date, access to case documents filed in these actions will continue to be governed by applicable federal and state law. (Public Records Act). • Administrative Documents • Apply to all documents regardless of date of creation

31. Public Access Checklist • Has there been a request for public access to the document or information? • If the answer is no, then the matter falls outside the scope of the Public Access Rules. • If the answer is yes, precede to the next inquiry.

32. Checklist (cont.) • Does the requested document or information meet the definition of “case document” or “administrative document?” • If the requested document or information does not meet the definition of “case document” or “administrative document,” then the matter falls outside the scope of the Public Access Rules and you are not required to provide the document or information. • If the requested document or information does meet the general definition of “case document” or “administrative document,” precede to the next inquiry.

33. Checklist (cont.) • Do any of the exceptions to the definition of “case document” or “administrative document” apply? • If no exception to the definition of “case document” or “administrative document” applies, you must provide the requested document or information. • If an exception to the definition “case document” or “administrative document” applies, then you generally should not provide the requested document or information.

34. Example of How State Exception Applies Under Public Access Rules • Medical Records - 149.43(A)(1)(a) • Definition – medical history, diagnosis or prognosis or medical condition- generated and maintained in the process of medical treatment.

35. Frequently Asked Questions • Do the Public Access Rules apply to Mayor’s Courts? • Where should the personal identifier form be stored or maintained? • Can the clerk reject a case document that has unredacted personal identifiers? • Must a clerk or court redact personal identifiers issued in orders to parties?

36. FAQ Continued • How may a party obtain redacted personal identifiers from a case document? • Must a party specify a case document, or can they request access to an entire case file? • Must a requesting party identify themselves or put their request in writing? • Is there a set length of time for a clerk or court to respond to a request?

37. FAQ Continued • Should a judge review each request that is made prior to disclosure of a case document? • Must the clerk redact personal identifiers prior to disclosure of a document to a requester? • Is our court required to have a policy and poster explaining these rules? • Must a court wait for a motion from parties before restricting access to a document?

38. Questions

39. Contact Information D. Allan Asbury (614) 387-9514 a.asbury@sc.ohio.gov John VanNorman (614) 387-9512 john.vannorman@sc.ohio.gov