Electronic Filing: Some Privacy Issues

In Chapter 4 of Lord Justice Briggs’s very interesting Interim Report which forms part of the Civil Court Structure Review (published this week) there is a summary of the present state of Her Majesty’s Courts and Tribunals Service’s Reform Programme, to which over £700 million of public money was allocated during last autumn’s Spending Review.  He describes how judicial involvement or “engagement” with the process has been facilitated by the creation of a Judicial Steering Group, and by three separate Judicial Engagement Groups, one for Civil, one for Family, and one for Tribunals.  It reminds me of the five (reduced to four) judicial advisory groups I used to lead 14 years ago when the last major attempt at court modernisation was undertaken.

In para 4.6 he says that it is anticipated that during the first half of 2016 an outline design emerging from the second stage of the Reform Programme will be worked up so as to identify the aspects requiring primary legislation, to a level of detail sufficient to enable that legislation to be drafted, and necessary consultation upon it to take place.

The Chapter contains, under a general heading of “Transparency and Open Justice” a paragraph (para 4.25) which starts:

“The current planning is focussed around the following main headings:

(a) Publication: this refers to the putting into the public domain of information about pending cases and hearing dates;

(b) Search: this comprises facilities to enable the public, the press and interested parties to apply to obtain certain details about particular cases of interest online, and to require the provision of further information as the case proceeds;

(c) Documentation: this heading contemplates replicating in digital form or improving upon the facilities currently available for the press and public to inspect the publicly available parts of court files…”

It was my experience that there are some extremely complex issues lurking beneath the surface of such admirable words of general intention, and I am not aware that there has yet been any wider consultation with the legal community, the media, or the public at large about the implications of these proposals.

I therefore thought it worthwhile to publish a talk I gave at Sydney in 2003 at an international conference of senior judges, which looked at those issues through the light of our experience at the time.

In particular, it includes the advice given by an excellent judicial team, headed by Sir Peter Cresswell, which touches on the difficulty of identifying which documents ought to be in the public domain, and which should not be.

I don’t know how much thought needs to be given to these matters (which are likely to raise quite complicated ECHR issues) for the purposes of preparing the primary legislation that is envisaged, but time is getting short, which is why I thought they should now be ventilated quite widely in the public domain (perhaps with the help of an up to date position paper).  I said then:

“There is no way in which this process of transmutation of status from private to publicly accessible document can be triggered automatically by any computer system.  Systems designers will have to receive very clear instructions as to what is required of them.  This process will require great clarity of thought from judges and rule-makers (who in the past have tended to respond reactively once a real problem has arisen) before any jurisdiction goes down the road to an electronic court file.”

I also said:

“In my jurisdiction the story has ended there for the time being.  In July last year the Treasury declined to sanction the provision of tax-payers’ money during the next three years for the kind of investment in modern software that would lead to the need for our court system to resolve these problems.   It is, however, still clear that our court administrators are determined to go down the road towards greater computerisation of our court filing systems, and in a well-ordered world advantage would be taken now of this delay by ensuring that answers to these problems are identified now, so that the systems designers of the future can be given the clear-cut instructions they are bound to need.”

I have no idea what, if anything, has happened since.  Is anyone able to tell me?

 

An Address given at the Sixth Worldwide Common Law Judiciary Conference, held in Sydney on 7-11 April 2003

We are slowly moving towards a world in which more and more court records (whatever that expression means) will be held on electronic files in addition to, or instead of, paper files.  Although progress to a fully paperless court is never likely to be achieved, and the transition to electronic filing has been much slower than seemed likely, in some jurisdictions at least, four or five years ago, it is already evident that it is bringing in its train a number of difficult issues where “freedom of information” considerations have to be balanced against privacy considerations.

In general, the debate on these issues has been much livelier in the United States than in jurisdictions like Australia or England and Wales.  To some extent this is because more rapid progress towards electronic filing systems has been made over there.  It is also evident that the problems are likely to be more complex in any country that is philosophically inclined to encourage public access to files held by public authorities.  The one matter that seems to be accepted on a worldwide basis is that there should be the strictest possible limitations on public access to court files in family and adoption proceedings.

In my country the first serious attempt to identify these problems from a judicial perspective was made by the five judicial authors of a report called “Modernising the Civil Courts: the Judges’ Requirements” which was published in August 2001.  Our Court Service had embarked on a major programme of court modernisation, in which IT will play a major role, and the authors of the report were asked to provide policy-makers and systems designers with a blueprint of what the needs of the judiciary were likely to be in a modernised court system.   In this report the five judges took the opportunity of articulating their concern that privacy and security questions should be clearly understood at the outset of the programme.

In England and Wales our present arrangements for public access to documents held by the court are fairly rough and ready.    We have no constitutional rule resembling the First Amendment to the US Constitution.  Nor is there a common law right to privacy, although the courts will recognise a right to confidentiality on appropriate occasions.  The nearest we get to a constitutional rule is to be seen in Article 8 of the European Convention on Human Rights (“ECHR”), of which our courts must take account since the Human Rights Act 1998 came into force. It provides that:

  1. Everyone has the right to respect for his private and family life, his home and his correspondence.

  2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security… or for the protection of the rights and freedoms of others.

In so far as a public authority interferes with individuals’ rights to privacy in the context of court proceedings, the position is governed, at any rate so far as civil proceedings are concerned, by those provisions of the Civil Procedure Rules 1999 and their accompanying Practice Directions which relate to public access to court records.  These articulate in the most general terms the philosophy that the courts should control people’s access to documents held on court files.  The countervailing potency of Article 10 of the European Convention, which recognises a qualified right to freedom of information, has not yet made its presence felt in the English courts’ approach to these matters.

Under our rules non-parties may, on payment of a prescribed fee, have access as of right to a claim form (provided that it has been served) and to any judgment or order given or made in public.  They may only have access to other documents on the court file if the court gives permission.  No guidance has ever been given to judges (normally district judges or High Court masters) as to the way in which they should exercise this judicial discretion.  A recent discussion on a judicial electronic conference suggested that in practice district judges were inclined to grant permission if an inquirer could demonstrate a legitimate private reason for wanting to inspect and copy a document on the court file, but that they would refuse it if the application was made with any commercial purpose in mind, or out of sheer prurience.

In South Australia (to take another common law jurisdiction at random) there is a more generous approach to public access.  Subject to the payment of a prescribed fee, any member of the public has a right to inspect or obtain copies of a much wider choice of documents than are accessible as of right in England and Wales.  They include:

(1)any process relating to proceedings and forming part of the court’s records;

(2) any documentary material admitted into evidence in any proceedings;

(3) transcripts of evidence taken by the court in any proceedings; and

(4) transcripts of submissions by counsel, the judge’s summing-up or directions to a jury, and the judge’s reasons for judgment or sentence (as appropriate).

There are then seven categories of material which may only be accessed with the court’s permission. These include material that was not taken or received in open court and material that the court has expressly suppressed from publication.  It is at once obvious that South Australia will be better equipped for the transition to a paperless court than the courts in England and Wales are likely to be.

In England and Wales restrictions over access to documents held on a court file do not give rise to any very great public concern at present.  Indeed, in section 32 of the Freedom of Information Act 2000 our Parliament seems to have been willing to leave the position governing access to court records unaltered.    Because access involves the need to visit a court office and to pay a fee that has to take into account the cost of staff time involved in searching for a file and the likelihood of having to obtain judicial permission as well, there is a general climate of understanding that court records are not accessible, except for the initiating claim form and the eventual orders, unless there is a real “need to know” in any particular case.  Once court records are on an electronic file which can, in theory at least, be accessed easily from anywhere in the world, pressures for public access to documents relating to proceedings held in public in the courts are likely to increase.

In England and Wales there are some other restrictive rules about access to documents in court proceedings which may well need to be revisited.  The regime governing disclosure of documents in civil litigation contains a rule that a party to whom a document has been disclosed may use the document only for the purpose of the proceedings in which it is disclosed.  This rule is subject to three exceptions:

(1) where the document has been read to or by the court, or referred to at a hearing which has been held in public (unless an order to contrary effect has been made);

(2) where the court gives permission; or

(3) where the party who disclosed the document and the person to whom the document belongs both agree.

Even if this rule is not further liberalised, questions will arise as to the availability of remote public electronic access to such documents once one of these exceptions is established, if they are held on a court database for the purposes of the trial.

Witness statements, for their part, are now routinely exchanged before trial.  Because they very often stand as evidence in chief (to save time at the trial), we now have a rule that, subject to any direction to contrary effect, any witness statement which stands as evidence in chief is open to inspection by any person during the course of the trial.  Quite recently the Court of Appeal also allowed a non-party to inspect and make copies of the written submissions or skeleton arguments to which the judge made reference at the trial, once it was satisfied that the applicant’s motives were not improper.  With this single exception, however, it re-affirmed the English courts’ traditional reluctance to allow non-parties to have access to court papers.

If and when we change our arrangements, and witness statements are routinely held on an electronic court file, they will change their status from “private documents” to “publicly accessible documents” as soon as they are used as evidence in chief.  We have also seen how even under our present restrictive rules certain categories of documents held in private on the electronic court file will become publicly accessible once certain conditions are fulfilled.

There is no way in which this process of transmutation of status from private to publicly accessible document can be triggered automatically by any computer system.  Systems designers will have to receive very clear instructions as to what is required of them.  This process will require great clarity of thought from judges and rule-makers (who in the past have tended to respond reactively once a real problem has arisen) before any jurisdiction goes down the road to an electronic court file.

In their report the five English judges identified these issues and then said:

“The issue that must be addressed is whether, and if so how, [the fact that a document has changed its status] is recorded. Is it to be done as a matter of course at or following each hearing, or is the court to wait until someone asks to see the document, and then conduct an investigation in order to ascertain whether it was read to or by the court or referred to at a public hearing?

It is difficult to see how this information could be trapped automatically by any system given that the court staff will always have the facility to draw court orders “freehand” using an ordinary word processor rather than within the limits of any form of order production, whether macro-driven or automated in some other way.

If the information is to be trapped at the time an order is made, or by virtue of something that happened at a public hearing, this will inevitably require training of staff, who will have to be of a suitably high quality.  There will probably also have to be judicial involvement from time to time in cases where court staff are in any doubt as to whether a document or documents have moved from the private to the public domain.  This in turn means that staff will have ‘to know when they don’t know’, which itself calls for a degree of knowledge and understanding of the issues in the case.

Under the rules as they stand at present, it is difficult to see how the court can ever become aware of, let alone trap, the occasions when a witness or owner of a document consents ‘in writing’ to the statement or document being used for some purpose other than the claim.  It must also be borne in mind that this purpose may be specific and may therefore not bring the document into the public domain.  There needs to be a policy decision by the rule-makers as to whether the [relevant procedure rules] need to be augmented to cover this situation, or whether it should not be the concern of court administrators or the judiciary at all.

Perhaps the more fundamental question is this — does the fact that a witness statement or document that has been read to or by the court, or referred to, at a public hearing mean that that document is in the public domain at all?

The questions posed above are unlikely to be seen as relevant in terms of the number of applications that now come before district judges or High Court masters in relation to the status of a particular filed document or witness statement.  The reason for this may well be that it is a practical impossibility to examine any very large amount of such documents and extract any useful information from them when they exist only in paper form.

However, once they exist in electronic form, searching them and extracting information from them is entirely different.  It is very easy and cheap to do, and it may well be that commercial organisations will see an opportunity here, and may wish to take advantage of the court rules relating to the status of those electronic documents.  If the courts hold documents in electronic form, and cannot distinguish between those that are in the public domain and those that are not, then they may be storing up a problem which is likely to be very expensive to resolve if it is not addressed at the outset.

The problem needs first to be addressed by the policy makers,  i.e. those who make the [relevant procedure rules], but they need to consider it in the light of the technological possibilities that [we have addressed].   Once the policy is set (and this needs to be done now), systems can be designed to accommodate or give effect to that policy.  If there is no active consideration of policy in these areas now, the likelihood is that they will be ignored because it will be expensive to address them later.

If at some later time, they are addressed by court administrators alone, past experience suggests that they are likely to be resolved on purely financial grounds, so that the chosen policy will likely to be the cheapest to implement.  Resource issues must certainly have to be taken into account, but there are other equally important considerations, as we [have pointed out.”

In my jurisdiction the story has ended there for the time being. In July last year the Treasury declined to sanction the provision of tax-payers’ money during the next three years for the kind of investment in modern software that would lead to the need for our court system to resolve these problems.  It is, however, still clear that our court administrators are determined to go down the road towards greater computerisation of our court filing systems, and in a well-ordered world advantage would be taken now of this delay by ensuring that answers to these problems are identified now, so that the systems designers of the future can be given the clear-cut instructions they are bound to need.

For the situation in Australia, I draw with gratitude on a paper delivered at a court technology convention in Baltimore in August 2001.  I am sure that the position has now moved on, and Australian judges at this conference will be able to bring the story up to date.  Australia’s federal Constitution does not contain a Bill of Rights, and there is no constitutional equivalent to the First Amendment to the US Constitution.  Similarly, there is no constitutional basis for asserting public access rights in any of the Australian states and territories.   No common law right to access the court record has been recognized in Australia although the point does not appear to have ever arisen.   In practice, the right of the public to access information about proceedings conducted in open court is generally accepted in most Australian jurisdictions, although perhaps less emphatically so than in the United States.

A general public right to access to information held by public agencies has been recognized by statute in the Commonwealth of Australia and in most states and territories.   Freedom of Information legislation creates a general right of access to public information in documentary form, limited only by exceptions and exemptions necessary for the protection of essential public interests and the private and business affairs of persons in respect of whom information is collected and held.   However, as in England and Wales, the legislation has little application to the courts.  In most jurisdictions, it applies only to their administrative functions, with judicial functions exempt from its operation.

There is little common law governing privacy issues in Australia, and only two jurisdictions have privacy legislation – the Commonwealth and New South Wales.  Both those Acts exempt courts within their jurisdictions from their operation, other than in relation to staffing or administrative matters.

As in the United States and in my country, access to court records is largely governed by the rule-making power of the courts themselves.  Access policies in Australian courts vary considerably between jurisdictions.  The most liberal provides for access in terms of a positive right, a prima facie presumption of access, subject to quite limited restrictions.

Another states a general presumption of access, but reserves a wide discretion, exercised by a court officer, to determine that a document should remain confidential to the parties. Several courts follow the general US approach of stating or implying a prima facie presumption of access, but going on to enumerate material to which access is excluded, although the list of excluded material is not extensive.  Others adopt a presumption of access in favour of specific types of material; these may vary from the quite liberal to the quite restrictive.  Yet others provide lists of material to which access will be provided and lists of material to which access will only be available by leave of the court.

Even in jurisdictions where rights are most clearly defined, most access provisions reserve an overriding discretion in the court, usually exercised by a Registrar, to grant or refuse access.  To the extent that grounds are specified for the exercise of that discretion, they are phrased in terms of ‘confidentiality’ or the ‘interests of justice.’  Discretion exists as to the types of documents that can be disclosed, to whom and in what circumstances. Many discretionary actions are non-appealable and, consequently, there is little case authority in relation to their exercise.

In a survey conducted three years ago into the practical applications of these policies it was noted that the way in which discretion is exercised can have a substantial impact on access policies.  As a result, there are substantial areas where access rights in Australian courts are closer to US practice than a comparison of the court rules would at first sight suggest.  In practice, most Australian courts proceed on a basic assumption of a right of access to information about proceedings held in open court.

None of them yet provide electronic access to filed documents, although most provide access, via the court web site, to court lists (calendars) and judgments. Plans to provide public access to transcripts on court websites are being developed.

In most Australian courts, as in England and Wales, the preferred mode of access to court files is by physical attendance and inspection, and for hard copy rather than electronic copy.  Some mail copies of documents, and two have provided simpler types of information by e-mail.  In August 2001 the only documents made available in electronic form were transcripts and judgments.

At that date no Australian court had yet articulated a policy in relation to electronic access to court records.  Several were examining this question as they considered the implementation of e-filing.  One indicated that it hoped to make selected case information available over the Internet on the court’s website once e-filing was operational.  Another indicated that it would be examining the possibility of ‘tiered’ access, whereby, for example, a party or its representative might have electronic access to almost all the court file while a non-party would have electronic access to only some documents.  This is the fairly rudimentary approach being adopted by the Court Service in England and Wales at present.

In order to understand why the situation in the United States is so different, one has to remember the importance attached there to the Constitution and the Bill of Rights.  The First Amendment prohibits governmental restrictions on the freedom of speech and encourages the free flow of information.  Open access to public records is seen to be the cornerstone of democracy, is needed to protect against secret government activities.  It has been said that

“sunshine is the strongest antiseptic – its rays may penetrate areas previously closed.”

By the same token, a claimant in a defamation action in the United States is likely to face more formidable obstacles than a claimant in my country, for similar reasons.

As a result there is a very open system of public access to court records in the United States.  The US courts have recognized a general common law right to inspect and copy public documents and records of the judiciary at both the state and federal levels.  There is a strong legal presumption that the documents in case files, unless sealed, are public records available for public inspection and copying.

In the United States, as in Australia and the United Kingdom, statutory provisions that govern access to public information at federal level do not directly govern court records. Both the federal Freedom of Information Act and the federal Privacy Act only apply to government records emanating from agencies in the executive branch.

All the individual states have an Open Records Act, but not all these statutes expressly govern court records.  Recent efforts to enact legislation that is protective of privacy in court records have been uneven.  Examples of privacy protective bills that died in committee in 2000 included a California bill making divorce records confidential and an Indiana bill allowing victims of domestic violence to obtain confidential addresses for the service of process and the receipt of mail.  However, in Iowa, Vermont and Wyoming laws were successfully enacted whereby the address of a domestic violence victim was kept confidential.

In practice, access is dealt with by the rule-making powers of the courts themselves.  In a survey of US courts’ access policies conducted four years ago it was noted that policies in most US states contained a direct or indirect declaration of openness of court records, subject to certain exemptions and exceptions.  Two states specifically listed record types that were presumed to be open.  In most states, it was said, the rules

“indicate that court records are presumed to be open, then go on for several pages listing all of the records that are confidential, leaving one to wonder if anything is left that can be released.”

In the United States there has been a very long debate about privacy issues and the electronic court file ever since such files began to be used seven years ago in federal courts.  In June 2001, for instance, there was a session devoted to these issues at the Fourth Circuit Court of Appeals’ three-day judicial conference at which seven public access problem areas were identified: “identity theft”, “nuisance contacts”, “con artists/stalkers”, “blacklists”, “blackmail”, “humiliation”, and “data mining”.  Because court records routinely included names, addresses, phone numbers, fax numbers, e-mail addresses, social security numbers, bank account numbers etc, it was feared that the incidence of identity theft, “the fastest growing crime in the nation”, would escalate dramatically.

Similarly, without appropriate protection for people’s names and addresses, it would be that much easier to harass vulnerable women who had just been divorced, people with medical problems, or debtors who might be desperate.  Fears were also expressed that blacklists could be prepared of tenants who sued their landlords, and that the details of private litigation, often containing embarrassing details, might be widely disseminated. As is customary on such occasions, judges were much better at identifying the problems than suggesting practical solutions to them.

Eventually the Judicial Conference of the United States published a set of recommendations in October 2001 that were designed to encourage federal courts to adopt consistent policies when deciding whether to permit remote electronic access to material stored on an electronic court file.  These recommendations followed a long study of the problem by one of the Conference’s sub-committees.  Powerful competing interests were identified during a period of public consultation.  In general, insurance companies, investigative agencies, banking institutions, credit card companies and the media favoured a very open public access system, while privacy advocates, academics and the general public were keen on a more limited system.

The Conference’s ultimate recommendations were founded on the presumption that federal court case files should be available for public inspection and copying unless they were sealed or otherwise subject to restricted access by statute, federal rule or Judicial Conference.  They said that this tradition of public access was also rooted in constitutional principles.  Public access rights, however, were not absolute, and when making decisions about the public disclosure and dissemination of case files, the courts had to balance access and privacy interests against each other.  The court’s authority to protect personal privacy and other legitimate interests in non-disclosure was also based on common law and constitutional principles.

The expression “case file” (whether electronic or paper) was defined as meaning the collection of documents officially filed by the litigants or the court in the context of litigation, the docket entries which catalogued these filings, and the transcripts of judicial proceedings.  The expression “case file” generally did not include non-filed discovery material, trial exhibits not admitted into evidence, drafts or notes by judges or court staff, and various documents sometimes described as “left-side” material.  Sealed material, although part of the case file, was accessible only by court order.

Certain types of case, categories of information, and specific documents might need special protection from unlimited public access, and the Conference gave special advice about these when dealing with four specific categories of case file (civil, criminal, bankruptcy and appellate).

The general principles underpinning the Conference’s new policy were, as I have said, that there should be consistent, nationwide policies in federal courts to ensure that similar privacy protections and access presumptions would be applied, whichever federal court was the custodian of a particular file.  Notice of these nationwide policies must be given to all litigants in federal courts, so that they would realise that materials they submitted in a federal court proceedings could become available on the Internet.  Members of the Bar would also need to be educated about the policies and the steps they should take to ensure that their clients’ sensitive, private information received appropriate protection.  Except where otherwise noted, the policies were to apply to both paper and electronic files.

So far as civil case files were concerned, the Conference recommended little change from the arrangements currently being made for access to paper files at the courthouse.  They said, however, that Social Security cases should be excluded from electronic access.  They also made a requirement that certain “personal data identifiers” (Social Security numbers, dates of birth, financial account numbers and names of minor children) should be modified or partially redacted by the litigants.

Remote electronic access was only to be available through the PACERNet system, a new Internet-based case management and electronic filing website.  The acronym stands for “Public Access to Court Electronic Records”, a service which charges a seven cents per page access fee.  Users have to register with the PACER service centre and use a log-in and password.  As a result an electronic trail is created.  This can be retraced, if a problem arises, in order to determine who has accessed the information in question.

The availability of remote electronic access would oblige counsel and pro se litigants to protect their interests by carefully reviewing whether it was essential to their case to file certain documents containing private sensitive information, or whether they should seek appropriate orders for the protection of their privacy rights.  Judges would also have to be ready to use their discretion to protect privacy and security interests as they arose in individual cases.  Experience had shown that few difficulties had arisen in practice.

The Conference observed that this recommended “public is public” policy was simple and could be easily and consistently applied nationwide.  Their policy would “level the geographic field” in civil cases in federal courts by allowing easy access to attorneys who did not work close to the courthouse.

The Conference considered that these measures would make fuller use of court technology and would allow court clerks to do more to serve the needs of the Bar and the public.  They were also keen to discourage the possible development of a cottage industry headed by data re-sellers.  If remote electronic access was restricted, such people would go to a courthouse, copy the files, download the information to a private website and then charge for access to that website, thereby making a profit from the sale of public information, and undermining the restrictions that were intended to protect privacy.

The Conference rejected the idea of defining the documents that should be included in the public file, partly because this would be very difficult, and partly because it would require the court to restrict access at the courthouse itself to information that has traditionally been available from courthouse files.

They seriously considered the idea of creating levels of access to electronic documents, depending on the user’s status in the case.  They eventually decided that levels of access restrictions were too complicated in relation to the privacy benefits which could be derived from them.  It would be difficult, for example, to prohibit a user with full access rights (such as a party in the case) from downloading and disseminating the restricted information, and such restrictions could not be imposed on an access to the courthouse file.  As a result another cottage industry of courthouse data collection might spring up.

Social Security cases were to be treated differently because they were regarded as being of an inherently different nature from other civil cases.  They were the continuation of an administrative proceeding in which the files were confidential until the jurisdiction of the district court was invoked.  In addition, all Social Security disability claims contained very detailed medical records and other personal information which was critical to the court but of little or no legitimate use to anyone not a part to the case.  Making such information available on the Internet would be of little public benefit and would present a substantial intrusion into the claimant’s privacy.

So far as documents in criminal cases were concerned, the Conference suggested in October 2001 that public remote electronic access should not be available, on the basis that this policy would be re-examined in two years’ time.  For the time being they considered that any benefits to be derived from such access were outweighed by the safety and law enforcement risks it would create.  In particular, it would allow defendants and others easy access to information regarding the co-operation and other activities of other defendants.

Particular attention was paid to the risk of unauthorised public access to pre-indictment information inadvertently disclosed, such as unexecuted arrest and search warrants. Sealing such documents in criminal cases would not address the problem adequately, since the mere fact that a document has been sealed might indicate probable defendant co-operation and covert law enforcement initiatives.

Opinions and orders in criminal cases, as determined by the court, and criminal docket sheets would still be available through court websites and PACER and PACERNet.

The Conference’s principal concern related to the safety of victims, defendants and their families, and the risk to law enforcement personnel.  They were willing to reconsider the matter if it became evident that the benefits of public remote electronic access significantly outweighed those dangers.

In March 2002 the Conference relaxed the rigidity of these policies by permitting remote public access in high profile criminal cases where three conditions were fulfilled: judicial approval, the parties’ consent, and the size of the demands placed on the clerk’s office by the requests for copy documents.  They also allowed a few courts to resume pilot projects on which they had previously embarked, as part of the general process of re-examining the merits of the policy of blanket prohibition.

In relation to bankruptcy files the Conference mirrored their policy on civil case files, with a heavy emphasis on the need for litigants and their advisers to seek sealed orders, where appropriate, in order to accommodate legitimate privacy and security concerns.  They recommended that the Bankruptcy Code should be amended in order to provide this new basis for sealing a document in a bankruptcy court.

The Conference rejected any attempt to create different levels of access in bankruptcy cases. They said in this context:

“Bankruptcy cases present even more issues with respect to levels of access because there are numerous interests which would have a legitimate need to access file information and specific access levels would need to be established for them.  Further, many entities could qualify as a ‘party in interest’ in a bankruptcy filing and would need access to case file information to determine if they in fact have an interest.  It would be difficult to create an electronic access system which would allow sufficient access for that determination to be made without giving full access to that entity.

The idea of collecting less information or segregating certain information and restricting access to it was rejected because the Committee determined that there is a need for, and a value in, allowing the public access to this information.  Further, creating two separate files, one totally open to the public and one with restricted access, would place a burden on clerks’ offices by requiring the management of two sets of files in each case.”

Finally, the Conference recommended that appellate case files should be treated at the appellate level in the same way as they were treated at the lower level.

So far as state courts are concerned, in August 2002 the Conference of Chief Justices and the Conference of State Court Administrators endorsed a set of Guidelines for Public Access to Court Records.  They commended them to each state as a starting point and means to help local officials as they developed policies and procedures for their own jurisdictions.  These guidelines were developed during an intensive 18-month study of the relevant issues sponsored by the National Centre for Ste Courts and the Justice Management Institute.  The principles underlying them were very similar to those adopted by the federal courts.  In particular they retained the traditional US policy that court records were presumptively open to public access.  They also emphasised that access policies must be clear and consistently applied, and must not be subject to interpretation by individual court or clerk personnel.

It was stressed that if a state or an individual court chose to adopt or revise a rule in a manner based on the guidelines, it would first have to examine its existing access and record-keeping laws and its policies for all judicial records that related to the following questions:

  • What was considered to be part of the court record;
  • What records, documents or other things should not be accepted by the court;
  • What personal and financial information was required to be provided on standard forms or pleadings, and what specific details were really needed by the court to perform its judicial role;
  • What information was being gathered by the court that it did not require for a judicial purpose;
  • What records, documents or other things were to be filed, lodged or provided to the court to which access was restricted, at least partially;
  • To which case types and categories of information public access was restricted in whole or in part;
  • What were the procedures and standards for sealing records, making them confidential, or otherwise restricting public access;
  • What were the schedules for the retention of records; and
  • What liability and consequences flowed from releasing restricted information, from providing erroneous or incomplete information derived from court records, or from improperly withholding publicly accessible information.

From this short overview of what is happening in three very different common law jurisdictions, it is obvious that the more antagonistic a country’s philosophies are towards a “public right to know”, the less difficulty it is likely to encounter when its courts adopt electronic filing systems.  The great advantage to be derived from recent developments in the United States is that the discussion which I have been watching from afar ever since I attended the second conference in this series in Washington DC six years ago has now crystallised.  We now have the benefit of access to two sets of valuable recommendations which will help us to map the way forward in each of our jurisdictions when we, too, go along this interesting road.

 

 

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