Balancing Court Records: Legal Openness, Privacy, and Online Access Discussion

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 November14, 2002

2. Overview • My background • Legal background on court openness and privacy • Federal bankruptcy and privacy study • Other legal considerations • Conclusion

3. I. My Background • Clerk in the 2d Circuit, 1985-86 • Law Professor since 1990 • First Internet law article 1992 • Editor, Cyberspace Law Abstracts • Brookings book & other privacy writings • See www.peterswire.net • Ohio State since 1996 • Now direct new Washington, D.C. summer program

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. 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. IV. Other Law • Intersection with other law • Protective orders • Longstanding judicial practice, upon proper motion • Trade secret cases • Many settlement agreements • Move from retail protective orders to more wholesale approach for categories of cases?

19. Other law • Gramm-Leach-Bliley Act of 1999 • Title V on financial privacy • Notice to individual of how financial records will be handled • Opt-out choice by individual before it goes to 3rd party • This same data can easily be disclosed in court records • To what extent should courts disclose data that other law says is private?

20. Other law • HIPAA medical privacy rule in force April, 2003 • 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

21. 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

22. V. Concluding Thoughts • There is no status quo • Previous legal regime of substantial openness • Previous practical regime of obscurity and lower privacy risk • What will be the courts’ approach to possibility that all court records easily searchable?

23. 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 • Consult with other courts • Resources are listed in your materials

24. Concluding Thoughts • 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?

25. Conclusion • These issues deserve your attention • There are ways to build systems that achieve accountability, effective administration and privacy. • It’s up to you to help build them.