“Court Records and Data Privacy: Online or Over the Line?”

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 • 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