By Eric Ugland
In an effort to encourage greater public access to court records in electronic formats, the Silha Center submitted formal comments on Jan. 26, 2001, to a subcommittee of the United States Judicial Conference, arguing that privacy concerns should not deter the courts from continuing their efforts to provide access to judicial records through computer networks, including the Internet.
In response to concerns raised by privacy advocates, the Judicial Conference's Committee on Court Administration and Case Management formed the Subcommittee on Privacy and Electronic Access to Court Files to address problems posed by electronic access, to solicit public comments and to draft a set of policies for the federal court system. The Judicial Conference, headed by the Chief Justice of the United States, William Rehnquist, is an administrative body that establishes rules and standards for the federal courts.
Silha Center director Jane Kirtley and SJMC graduate student Erik Ugland drafted comments to highlight for the subcommittee the constitutional problems posed by restricting access, and the practical benefits of broadening the means of access. The percentage of all judicial records produced or stored in electronic formats continues to increase, and some courts have begun making those records available through computer databases, some of which are accessible via the Internet. The federal courts have been moving rapidly to implement a new case management system that allows attorneys to file court documents electronically, and plans are underway to provide public access to those documents over the Internet. Those plans are on hold, however, while the Judicial Conference weighs the privacy problems raised by such expanded access.
The Silha Center's comments argue, however, that the issues raised by privacy advocates are more illusory than real, and that to the extent that any legitimate privacy interests are put at risk, they can be easily protected through existing safeguards. Parties can always file motions with the court to conceal records that might intrude on their privacy.
Under one of the proposals under consideration by the subcommittee, however, the Judicial Conference would create certain categories of records, which would be presumptively closed to public examination. The Silha Center comments contend that this is inconsistent with court precedents, which suggest that judicial records are presumptively open.
"It is important for the courts and this Subcommittee to recognize that people's rights or interests in privacy are theirs to assert or waive," the comments state. "It is neither the responsibility nor the role of judges to assert these rights and interests on behalf of others, even though judges must ultimately decide which records are to be sealed and which are to be kept public."
The Silha Center comments add that access proponents are not seeking to expand the types of records available to the public; they are merely seeking broader and more efficient access to records that are already publicly available at federal courthouses. Doing this would not only increase the efficiency of the judicial process, it would substantially democratize the records system, allowing people and groups to conduct research and investigations and to monitor the fairness of the judiciary. Electronic access would simplify this task for public interest groups, and it would make it possible for those who lack the time and resources, or who do not live near federal courthouses, to participate in that process.
"In an open society in which people are charged with monitoring the performance of their government ... it would be a mistake to impose a new regime of court secrecy in which categorical and preemptive determinations are made on these matters," the comments state. "These decisions are best made on a case-by-case basis, upon a motion by the party seeking to seal the records."
For the most part, in the public records context, the courts and legislatures have adapted well to changes in technology. Most courts, for example, have interpreted the term "record" under freedom of information laws to include electronic files. "It would be particularly ironic," according to the authors of the Silha comments, "if the strengths of our new technology were used as a pretext for denying expanded access - taking the tools of accountability out of the hands of citizens, and forcing them to rely on surrogates who may or may not share their interests."
The Silha comments conclude that all of the evidence weighs heavily against any limitation on electronic access to records that are already publicly accessible, and the Court is sufficiently equipped to protect legitimate privacy interests when they arise.
How the Judicial Conference ultimately decides to handle these issues could establish an influential model for the state courts. The Maryland courts, for example, are already engaged in a similar fact-finding inquiry regarding electronic court records. No similar initiative has yet been undertaken in Minnesota, but it is probably only a matter of time. Although each county is different, most judicial records in Minnesota are not accessible online. In Hennepin County, case histories are available on the Internet, but no actual court documents can be accessed.
For more information about the Judicial Conference's inquiry, visit http://www.privacy.uscourts.gov. The Subcommittee conducted hearings on the proposals March 16, 2001. The comments submitted by the Silha Center can be accessed at http://www.silha.umn.edu/resources.htm.