The historic right of public access to court records is under increasing attack in several states and perhaps the federal judiciary as well. Privacy advocates and some court officials argue that the easier access to court files that are increasingly being stored electronically are a threat to individual rights in a way that paper records never have been. It's one thing for people to be able to rummage through files in a nearby courthouse, they contend, but another to permit surfing through files anywhere in the country from a home computer.
Particular concern is expressed over "identity theft" by obtaining Social Security, credit card or bank account numbers from court records. Journalists and businesses that use court records reply that the First Amendment and common law rights to view court documents apply equally to files no matter how they are stored. They point out that virtually all court files will be stored electronically in the foreseeable future.
About 100 state courts and 10 federal courts already permit electronic filing, and at least 35 others scan paper files onto Web pages, according to The Wall Street Journal. Limiting access to these documents would cripple the public's right to examine them. Sensitive data such as Social Security numbers can be blocked.
In some states, courts have already moved to reduce access to their files and others have created committees to study the issue. Some courts have opened their court files to Internet access without local controversy. The U.S. Judicial Conference asked for comments on its plans to digitize federal court records late last year. Some 240 responses were filed. The Judicial Conference scheduled a public hearing on March 16, 2001.
Here is what is happening around the nation:
A committee appointed by State Supreme Court Chief Justice Thomas A. Zlaket to study public access to electronic records has tentatively decided to block sensitive data such as Social Security and credit card numbers from Internet access. The data would remain available in courthouses regardless of format. An appeal process would be established. That and other recommendations are subject to final approval by the state Supreme Court.
The Superior Court in Maricopa County, which includes Phoenix, already has put all its records online and is getting up to 80,000 hits a day, Federal Computer Week reported. Gordon Griller, the court administrator, said the result has been fewer phone inquiries and personal visits.
The Judicial Council adopted new rules last October that stipulate most records are presumed open unless a judge finds an "overriding interest" in closing them, according to a report on Law.Com. Some files remain confidential, including family law matters, discovery material and confidential settlements.
The Colorado courts created a web site in 2000 that permits users to search civil and criminal records statewide for $5 each, according to The (Baltimore) Sun. News organizations have complained that it does not permit searches of criminal files by types of cases or judges' names.
Rural Charlotte County has placed its files in a fee-based, Web-accessible database that is password-protected, according to Government Computer News. Level of access varies under Florida law. It averaged 1,400 hits a day last year.
A task force of court officials appointed by Chief Judge Robert M. Bell proposed last fall that access to electronic records be heavily regulated, with broad discretionary power granted to the courts' public information officer. Access to paper records would also have been limited somewhat.
A public outcry from media and businesses that routinely search court records, and a threat by legislative leaders to reverse the rule, induced the withdrawal of the proposal. Judge Bell has appointed a new study group with broader representation.
The court of appeals ruled earlier in the year that a judge could not seal civil settlement agreements filed or discussed in court unless required by statute or court ruling.
The judicial system's Web Advisory Board, composed of varied interest groups, has recommended that criminal and civil dockets be posted on the Web with the same basic information as available in courthouses, along with a warning that allegations may not be accurate.
Eventually case documents would be filed on the Web when the trial courts have adequate technology. A decision on sensitive data was postponed. A decision by the Supreme Judicial Court is expected in March.
Growing interest in the holding of court hearings in cyberspace is illustrated by Common Pleas Judge James Kimbler in Medina. A report on Freedom Forum Online said he held three hearings through an America Online chat room in which he heard arguments from attorneys in other cities.
Although there was no media interest in the case, the method would have precluded coverage by reporters.
The Supreme Court adopted rules for electronic access to court records in October 2000 that favor public access with a long list of exceptions. The rules include extensive reporter's notes that explain the court's reasoning, based heavily on the U.S. and Vermont constitutions and common law.
The exemptions include some probate records, medical information, some financial information, juvenile records, pre-sentence reports, discovery documents unless used in court, search warrants until executed, among others. Social Security numbers "are easily blocked" and the documents then released.
Presiding judges can seal or unseal records for good cause. Statistical abstracts of records should be provided without personal identifications.
An attempt in the General Assembly to restrict access to electronic court files was sidetracked by a compromise that would create a nine-month study to establish access to court data bases, according to the Virginia Coalition for Open Government. Public access to electronic records will be blocked through June 2002. Legislation to restrict access to marriage records was dropped. Social Security numbers will be excised.
Jack Kennedy, the court clerk in rural Wise County, is pioneering in electronic access to his files. The court calendar and the past decade's entire docket are available online. Most court hearings are broadcast in streaming digital video on the court's Web site.